Loading...
HomeMy WebLinkAboutMiscellaneous - 70 ELM STREET 4/30/2018 (4) l/ t✓ V _ � y rt ! 1 1 93 RECEIVED TOWN OF NORTH ANDOVER JW.' CLERK'S RK'S OFFICE ZONING BOARD OF APPEALS 2009 SEP.21 PM 2: 38 I'On o 1`40RTIJ APIDOVER Property Owner&Location: QS5�D1'I�SLT7S Trinitarian Congregational Church 70 Elm Street North Andover,Massachusetts Petitioner: Lizetta M. Fennessy 77 Elm Street, North Andover,MA 01845 In re: NOTICE OF.CONSTRUCTIVE APPROVAL OF PETITIONER'S APPEAL AND GRANT OF THE RELIEF REQUESTED THEREIN FURTHER DECLARATION OF SERVICE i i I,Lizetta M.Fennessy,hereby solemnly affirm and declare under the penalties of perjury, as follows: I mailed on September 21,2009,by United States Postal Service,first-class mail, postage-prepaid,a true copy of NOTICE OF CONSTRUCTIVE APPROVAL OF PETITIONER'S APPEAL AND GRANT OF THE RELIEF REQUESTED THEREIN to each addressee listed below at the following addresses: Mark Bobrowski,Esq. Blatman Bobrowski&Mead LLC 9 Damonmill Square(Suite 4A-4) Concord MA,01742 Community Development Board Searles Building(Room 217) 41 Pleasant St. Methuen;MA 01844 Community Planning Commission 235 North Street North Reading,MA 01864 SIGNED UNDER THE PENALTIES OF PERJURY ON THIS TWENTY-FIRST DAY OF SEPTEMBER,2009. I?Li M.Fennessy Petitioner Q HORTft 9 O 4�ae e.NO air a°°.:� ♦. O� R f.EiMI*`] o, 70WH CLERK'S OFFICE �9SSACHUS Town of North Andover -2009 SEP 17 APS 1 1, 55 ZONING BOARD OF APPEALSTY��D0 NORTH1fER Albert P.Manzi III,Esq.Chairman M A S S MIU T carr Ellen P.McIntyre,Vice-Chairman Thomas D.Ippolito Richard J.Byers,Esq.Clerk Daniel S.Braese,Esq. Joseph D.LaGrasse Michael P.Liporto Richard M.Vaillancourt Zoidit ,g E,forceinent Oficer Gerald A.Brown FINDINGS AND DECISION RE: Appeal of Lizetta M.Fennessy 77 Elm Street,North Andover,MA Date: September 17,2009 PROCEDURAL HISTORY 1. On or about May 28,2009,Lizetta M.Fennessy(hereinafter,the Appellant),of 77 Elm Street,North Andover,appealed the decision of the Building Commissioner to issue a building permit(#628)granted to MetroPCS Massachusetts,LLC to erect a wireless communication facility on property owned by the Trinitarian Congregational Church,70 Elm Street,North Andover,Massachusetts per M.G.L. ch.40 § 7, 8,and 15 as North Andover Zoning By-Law Section 8.9.3(c)(v)(1). 2. The Zoning Board of Appeals(ZBA)held a public hearing on the matter at a Special Meeting on June 18,2009,and continued the hearing until August 11,2009. The documents listed and identified herein within Appendix"A"are hereby incorporated by reference attached hereto and made part hereof,as identified by exhibit numbers one(1)through twenty(20)and exhibits A and B respectively as marked by the Chairman at the Public Hearing and constitute documents received as to the record. The ZBA Public Hearing contained oral testimony as set forth in the Board's written and recorded record. 3. The ZBA deliberated the matter at its meeting on June 18,2009,August 11,2009,and September 3, 2009. Public Hearing closed on August 11,2009. 4. On September 3,2009,a motion was made to uphold the appeal of the Appellant. The vote of the ZBA was two(2)in favor and three(3)opposed as noted herein within the Chairman Certification of Record Vote. 5. Pursuant to M.G.L.ch.40A, § 15,the appeal was denied. FINDINGS 6. In a decision of the Planning Board of North Andover filed with the Town Clerk on March 5,2009, MetroPCS,LLC and the Trinitarian Congregational Church obtained a special permit to erect a wireless communications facility in the steeple and basement of the Church located at 70 Elm Street,North Page 1 of 3 Andover per M.G.L. ch.40 § 7, 8,and 15 as North Andover Zoning By-Law Section 8.9.3(c)(v)(1). 7. The Appellant,and others,appealed the Planning Board's decision in Fournier, et al v. Simons, et al, C.A.No.:2009-559-C(Essex Superior Court). 8. The Building Commissioner granted a building permit(4628)to MetroPCS,LLC and the Trinitarian Congregational Church on or about May 18,2009. 9. The Appellant filed her appeal with the ZBA on May 28,2009. She alleged that the Building Commissioner wrongfully issued building permit#628 because the proposed wireless communications facility is located within 600 feet of her residential premises,in violation of Section 8.9.3(c)(v)(1)of the Zoning By-Law. 10. The Appellant is a"parry in interest"as defined by M.G.L.ch.40A, § 11. The ZBA finds that Ms. Fennessy is an aggrieved person for the purposes of this appeal. I - 11. The ZBA finds that the Building Commissioner properly issued the building permit. The building permit was,in effect,authorized by the special permit granted by the Planning Board to MetroPCS,LLC and the Trinitarian Congregational Church,filed with the Town Clerk on March 5,2009. The Building i Commissioner's decision to grant the building permit was therefore a ministerial step taken in reliance upon said special permit. i RECORD OF VOTE i The Board took the following action: Upon a Motion made by Ms.Mcintyre,seconded by Mr.Braese,to support the Appeal of Ms.Fennessy and overturn the Building Inspectors findings as set forth within the filed petition, The following members of the Zoning Board of Appeals voted to SUPPORT the appeal of Ms.Fennessy: Albert P.Manzi III,Esq. and Ellen P.McIntyre The following members of the Zoning Board of Appeals voted NOT TO SUPPORT the appeal of Ms. Fennessy: Richard M.Vaillancourt,Thomas D.Ippolito and Daniel S.Braese,Esq. The Chairman declared Ms.Fennessy's petition denied as it failed to obtain four votes in support thereof as required. an-a /,Z, A 49R� ChairrPfin i f Filed with the Town Clerk on September 17,2009 i Page 2 of 3 i i i i APPENDIX A Exhibit#1 Letter from former Telecommunications Subcommittee(dated 1/26/09) Exhibit#2 Materials list submitted by Lizetta Fennessy(12 items) Exhibit 43 Letter from Walter Soule to John Simons/Planning Board(dated 1/23/09) Exhibit 44 Email from B Fink to Liz Fennessy(dated 1/26/09) Exhibit#5 Letter from Attorney Joseph Fitzgibbons to Ms. Karen Carroll(dated 1/15/08) Exhibit#6 Letter from Attorney Edward J. Collins to Ms. Thea Fournier(dated 1/26/09) Exhibit#7 Letter from D.Robert Nicetta to Rev. Andrew M. Gilman(dated 10/24/00) i Exhibit#8 Letter(Page 1) from Janet R. Stearns to Mr.Robert Nicetta(dated 7/27/01) Exhibit#9 Letter(Page 2)from Janet R. Stearns to Mr. Robert Nicetta(dated 7/27/01) Exhibit#10 Letter from Michael McGuire to Janet R. Stearns (dated 8/1/01) Exhibit#11 Letter from D.Robert Nicetta to Mr. Paul Gascoigne (dated 5/25/02) Exhibit#12 Letter from Gerald Brown to Gin Vilante(dated 4/12/06) Exhibit#13 Letter from Gerald A. Brown to North Andover Planning Board(dated 12/3/08) Exhibit#14 Affidavit of Lizetta M. Fennessy(dated 6/18/09) Exhibit#15a DVD of North Andover Annual Town Meeting night one Disc 1 (dated 5/12/09) Exhibit 415b DVD of North Andover Annual Town Meeting night one Disc 2 (dated 5/12/09) Exhibit#16 Letter from Lizetta M.Fennessy to Gerald Brown(dated 5/15/09) Exhibit#17 Letter from Gerald Brown to Lizetta M.Fennessy(dated 5/19/09) Exhibit#18 Peter Morin Letter dated June 10,2009; including attachments Tab A thru F Exhibit#19 North Andover Town Charter Exhibit#20 North Andover Zoning By-law Submitted on August 11,2009: Exhibit A Essex Superior Court Complaint,Civil Action No. 2009-559-C Exhibit B Letter from Attorney Peter Morin to Albert P.Manzi,III,Esquire (Zoning Board of Appeals) (dated 7/27/09) M.G.L. ch. 39, § 23D Participation Form(s) I Page 3 of 3 Town of North Andover ZONING BOARD OF APPEALS E NORTI, �� Associate Members Albert P.Manzi III,Esq. Chairman a 46�,,.`o „6.6 o Thomas D.I olito Ellen P.McIntyre, Vice-Chairrrran 3 c PP Richard J.Byers,Esq. Clerk #- . p Daniel S.Braese,Esq. Joseph D.LaGrasse * n Michael P.Liporto Richard M.Vaillancourt °� '•-.''� Zoning Enforcement Officer 'oACHUSEt�y Gerald A.Brown CERTIFICATION PURSUANT TO G.L. e. 39, SECTION 23 D OF .PARTICIPATION IN A SESSION OF AN ADJUDICATORY HEARING WHERE THE UNDERSIGNED MEMBER MISSED A SINGLE HEARING SESSION [Note: Can only be used for missing one single hearing session; cannot be used for missing more than one hearing session.] I, ("�V1 Eft @ g e-- (name), hereby certify under the pains and penalties of perjury as follows: 1. I am a member of said Board. 2. I missed a hearing ession on the matter of Petition of Lizetta M. Fennessy which was held on (date). 3. I reviewed all the evidence received at the hearing session I missed, which included a review of(initial which one(s) applicable): a. ✓ audio recording of the missed hearing session; b. ;/ video recording of the missed hearing session; C. a transcript of the missed hearing session; a exhibits accepted at the hearing session. This c ZBA '1 Date Signe OF NORri,, 03 °� TOWN OF NORTH ANDOVER ~ 9 ,t y 0 RECEIPT tj SSACHU9�t j ,y Recei This certifies that ,t" -. .... ,... ." '.S:S1!'.................... Date: By: has pard .. Ga., �..�'�..%......... .} .....�..�. ..�.. ...1', r Posit for Received�'1 yam' s _ tJ . . ,,71�............................................... Department......... ,• ........................................ WHITE: Applicant CANARY:Department PINK:Treasurer Town of North Andover ZONING BOARD OF APPEALS NORT11 Albert P.Manzi III,Esq. Chairmano 4s,,.o ,°1tio Associate Members Ellen P.McIntyre, Vice Chairmart3? ° - " °z- Thomas D.Ippolito Richard J.Byers,Esq. C/ejk ft- '3 Daniel S.Braese,Esq. Joseph D.LaGrasse * * Michael P.Liporto Richard Xf.Vaillancourt �+oR�TeD ,'y Zoning Enforcement Officer �Ss�c ►+usE�< Gerald A.Brown CERTIFICATION PURSUANT TO G.L. c. 39, SECTION 23 D OF PARTICIPATION IN A SESSION OF AN ADJUDICATORY HEARING WHERE THE UNDERSIGNED MEMBER MISSED A SINGLE HEARING SESSION [Note: Can only be used for missing one single hearing session; cannot be used for missing more than one hearing session.] I, fllc-c a r� H. a,�a v,�o,,c,r (name), hereby certify under the pains and penalties of perjury as follows: 1. I am a member of said Board. 2. 1 missed a hearing session on the matter of Petition of Lizetta M. Fennessy which was held on 4yu sf /I . aoc) (date). 3. 1 reviewed all the evidence received at the hearing session I missed, which included a review of(initial which one(s) applicable): a. audio recording of the missed hearing session; b. 1,--' video recording of the missed hearing session; C. i/- a transcript of the missed hearing session; d. exhibits accepted at the hearing session. This certification shall become a part of the record of the proceedings in the above matter. Signed under the pains and penalties of perjury this 3`d day of September, 2009. �(Name) Received as part of the/record of the above matter: Date: By: Position: Town of North Andover ZONING BOARD OF APPEALS RECEIVED Albert P.Manzi III,Esq.Cbairman r- Ellen P.McIntyre,Vice-Chairman Richard J.Byers,Esq.Clerk pf No DTM 9,y p p� rj p Joseph D.LaGrasse =,i 6`•`.1' "*e oL Z007 JUti Hf� �' J$ Richard M.Vaillancourt o Associate Members Thomas D.I o 1�� 3 �r PPlito "meq . �`� N I1'i ��N`:IJ7VER Daniel S.Braese,Esq. '2, "�e,T,o 0",�9 MQSSACHQS T T Michael P.Liporto SSgeNU Town Clerk Time Stamp Legal Notice North Andover, Board of Appeals Notice is hereby given that the North Andover Zoning Board of Appeals will hold a public hearing in the High School Lecture Hall, 430 Osgood Street,North Andover,MA on Thursday the 18th of June, 2009 at 7:30 PM to all parties interested in the application of Lizetta M. Fennessy, 77 Elm Street, for premises at: Trinitarian Congregational Church, 70 Elm Street (Map 42, Parcel 2), North Andover, MA requesting a Finding as a Party Aggrieved of the Inspector of Buildings under Section 8.9.3(c)(v) of the Zoning Bylaw as.petitioner seeks to reverse and vacate Building Permit #628 granted on 5/18/09 on the basis that no Variance was granted for the 600 foot setback. Said premise affected is property with frontage on the Northwest side of Elm Street within the R-4 zoning district. Plans are available for review at the office of the Board of Appeals office, 1600 Osgood Street, Building 20, Suite 2-36,North Andover, MA 01845 Monday through Friday during the hours of 8:30AM to 4:30PM. By order of the Board of Appeals Albert P. Manzi III, Esq., Chairman Published in the Eagle-Tribune on June 3 & 10, 2009. rLegalnotice 2009-009. LU LO M42P2. c 0m EY T-m° a°LraiC() s�Q 'na=m an-�Urn°,°Nc c_m��-�Cp my_a -o +n.s o ,0),8Z83S om >o� m� � ��> Q)co>COa'a,(D F �w2a- ^ ( oC o g YomW0UEmv � > � m ' am ° LL WaQ00�r �� - Y0ro _> 0i _mo � ma)<E � m72 oZzZ4.,a,L .c -025 cLL = °� oNonmymoa� � ccdiL 2 o.8 cN o400� Na a) m -0mZipN 2 m2m >,w� rno 2 c c aQd. ns_« o y m o d m 3 oa ay rnm o o >`a c c° V O Qz _ �t��m°�= °u-mcc�Z��nmt= o��no`tn���cd.� °maces° n I Z m L-•N 3 C.�.Cn�O 2iz: 1.—tl1N Na C 7 O atm O)E ca(0 !�OW N ;umONQ�'OQ Q W 1600 Osgood St.,Bldg 20-Suite 2-36,North Andover,MA 01845 Phone-978-688-9541 Fax-978-688-9542 Web-www.townofnorthandover.com l pORTM ti 7s _ Y ,SS C ..,. FINDING TOWN Of NORTH ANDOVER 4 y 11}, 2,; 7; ; 111: ZONING-BOARD OF APPEALS NAME: ADDRESS OF APPEAL: "7 0 Yy) 5+r C et .;. ;` Town Clerk Time Stamp Procedure & Requirements for an Application for a Finding Ten(10)copies of the following information must be STEP 6: SCHEDULING OF HEARING AND submitted thirty U days prior to the first public hearing. PREPARATION OF LEGAL NOTICE: Failure to submit the required information within the The Office of the Zoning Board of Appeals schedules time periods prescribed may result in a dismissal by the the applicant for a hearing date and prepares the legal Zoning Board of an application as incomplete. notice for mailing to the parties in interest(abutters)and The information herein is an abstract of more specific for publication in the newspaper. The petitioner is requirements listed in the Zoning Board Rules and notified that the legal notice has been prepared and the Regulations and is not meant to supersede them.The cost of the Party in Interest fee. petitioner will complete items that are underlined STEP 7: DELNERY OE LEGAL NOTICE TO STEP 1: ADMINISTRATOR PERMIT DENIAL: NEWSPAPER The petitioner applies for a Building Permit and The petitioner picks up the legal notice from the Office receivers a Zoning Bylaw Denial form completed by the of the Zoning Board of Appeals and delivers the legal Building Commissioner. notice to the local newspaper publication. STEP 2• FINDING APPLICATION FORM: STEP 8: PUBLIC HEARING BEFORE THE ZONING Petitioner completes an application form to petition the BOARD OF APPEALS: Board of Appeals for a Finding. All information as The petitioner should appear in his/her behalf, or be required in items 1 through and including 11 shall be represented by an agent or attorney. In the absence of . com fetedany appearance without due cause on behalf of the p petitioner,the Board shall decide on the matter by using STEP 3• PLAN PREPARATION: the information it has otherwise received. Petitioner submits all of the required plan information as STEP 9: DECISION: cited in section 10, page 4 of this form. After the hearing, a copy of-the Board's decision will be STEP 4. OBTAIN UST OF PARTIES IN INTEREST: sect to all Parties in Interest, Any appeal of the Board's The petitioner requests the Assessor's Office to compile decision may be made pursuant to Massachusetts a certified fist of Parties in Interest(abutters). General Law ch.40A§ 17,within twenty(20)days after the decision is tiled with the Town Clerk. STEP 5: SUBMIT APPLICATION: STEP 10: RECORDING THE DECISION AND PLANS. Petitioner submits one (1)original and ten (10)Xerox The petitioner is responsible for recording certification of copies of all the required information to the Town Clerk's the decision and any accompanying plans at the Essex Office to be certified by the Town Cleric with the time County, North Registry of Deeds,384 Common St., and date of filing. The original will be left at the Town Suite#304, Lawrence MA, 01843 and shall complete the Cleric's Office, and the 10 Xerox copies will be ieft,with Certification of Recording form and forward it to the the Zoning Board of Appeals secretary. Zoning Board of Appeals and to the Building Department. IMPORTANT PHONE NUMBERS: 978-688-9533 Office of Community Dev. &Services North Andover Town Hall 1600 Osgood St., Bldg.20, Suite 2-36 120 Main Street North Andover, MA 01845 978-688-9501 Town Clerk's Office 978-688-9542 fax for Community Development offices 978-688-9566 Assessor's Office 978-688-9545 Building Department 978-688-9541 Zoning Board of Appeals Office 4 PAGE 1 of 4 MAY 2 8 2009 BOARD OF APPEALS I PAGE 2OF4 NORTH ANDOVER ZONING BOARD OF APPEALS application for a F I N D I N G Please complete aii items 1 -11 below: 1. Petitioner: *Name, *Address and telephone number: M19 018`L5 S-9- 2,9 L "The petitioner shall be entered on the legal notice and the decision as entered above. 2. Owners of Land: Name, Address, telephone number, .and number of years under this ownership: (1011 arram Chuy 01 70 flim St-1't-e-t -- Years Owned Land: 5 i y1( 1F6 t 3. Location of Property: a. Street: 70 Ll r ) 5+rec Zoning District: b. Assessors: Map number: Lt I.)- Lot Number: 1p c. Registry of Deeds: Book Number: 107 Co Page Number: ag 1 4. Zoning Bylaw Section(s)* under which the petition for the Finding is made. *Refer to the Zoning Bylaw Denial and Pian Review Narrative form as supplied by the Inspector of Buildings. 5. Describe the Finding request: -016& -K-1c 7-13A revcr,sc a/nc( yar-a:4e +W CUCL513vl o� *lc f?)uddlnq Cornm1.551mcr wIbi reSoe&i- to &i�ldlyiu berm L+Wo)$ Graff)-erd 5//S/o5 on tvhe basis tit nv v v l A n c e y 0j S u rLIJ►'I+rd po$- +he (900 A- See j-bo Lk y-eakkA ecL ou S.9 3[c 0) C-fc-the b y10 I The above description shall be used for the purpose of the legal notice and decision. A more detailed description is required pursuant to the Zoning Board Rules and Regulations as cited on page 4,section 9 of this application.Failure by the applicant to describe the request clearly may result in a decision that.does not address the intent of the applicant. The decision will be limited to the request by the applicant and will not involve additional items not Included above. 6 A. Difference from Zoning Bylaw requirements: indicate the dimension(s)that will not meet current Zoning Bylaw Requirements. (Lines A and B are in case of a lot split) Lot Area Open Space Percentage Lot Frontage Parking LUf Se fba C,j-,S hof Vkl-e Sq. Ft. Sq. Ft. Coverage Feet Spaces Front Side A Side B Rear A. tJ A N q N A Bio AIA 73 a00 B. % Page 3 of 4 I' NORTH ANDOVER ZONING BOARD OF APPEALS application for a FINDING MAN 6 B. Existing Lot: �� 5 Lot Area Open Space Percent Lot Frontage Parking Minimum Lot Setback Sq.Ft. Sq.Ft Coverage Feet Spaces Front Side A Side B Rear NA 73 2 o0 p,-�pposs 6 C. Proposed Lot(s): faccQ,�+ Lot Area Open Space Percent Lot Frontage Parking Minimum Lot Setback# Wlr�le in S&f f Y Sq.Ft. Sq.Ft. Coverage Feet Spaces Front Side A Side B Rear tJ A 113 Cp 9 0 ZO 6 D. Required Lot: (As required by Zoning Bylaw&Table 2) trp� Wa(&-65 56lvl C Lot Area Open Space Percent Lot Frontage Parking Minimum Lot Setbackpe4- Sq.Ft. Sq.Ft. Coverage Feet Spaces Front Side A Side B Ratear ,13 C � l�l� 6000 (000 (000 (g eo 7A. Existing Building(s): Ground Floor Number of Height Total Use of Number Square feet Floors Sq.feet Building* of Units*" *Reference Uses from the Zoning Bylaw&Table 1. **State number of units in building(s). 7B. Proposed Building(s): Ground Floor Number of Height Total Use of Number Square feet Floors Sq.feet Building* of Units" N --� Cku✓'cI4 "d wl(e Le5 5 5e fvI u Fa CAIA-tN *Reference Uses from the Zoning Bylaw&Table 1. **State number of units in building(s). 8. Petitioner and Landowner signature(s): Every application for a Finding shall be made on this form,which is the official form of the Zoning Board of Appeals. Every . application shall be filed with the Town Clerk's Office. It shall be the responsibility of the petitioner to furnish all supporting documentation with this application. The dated copy of this application received by the Town Clerk or.the Zoning Board of Appeals does not absolve the applicant from this responsibility. The petitioner shall be responsible for all expenses for filing and legal notification. Failure to comply with application requirements,as cited herein and in the Zoning Board Rules and Regulations may result in a dismissal by the Zo ' g Board of this application as incomplete. Signature: �L�IOVYY' rut 1 C(, d O w A<f� Type above name(s) here: L(Ze+f a,- M 4::-r yw3C5 Su e, FENNESSY REQUEST FOR FINDING ITEM 9 Locus: Trinitarian Congregational Church 70 Elm Street,North Andover Lizetta M. Fennessy , an abutter to the locus and a party in interest with respect to the locus (within meaning of G.L. c. 40A, § 11), hereby appeals to the North Andover Zoning Board of Appeals as an aggrieved party pursuant to G.L. c. 40A, § 8, and the Town of North Andover Zoning Bylaw from the decision of the North Andover Building Commissioner acting as Zoning Enforcement Officer regarding the locus and from the issuance of a building permit by the Building Commissioner to MetroPCS Massachusetts for construction and operation of wireless communications facilities on that locus,which lies in a residentially zoned district. The grounds for this appeal are that the Building Commissioner has seriously misread the clear language of the relevant portions of the Zoning Bylaw in his letter dated May 19, 2009 (copy attached)refusing to enforce the Zoning Bylaw as requested in my letter to him dated May 15, 2009 (copy attached). In rejecting my request for enforcement,the Building Commissioner advances five (5) enumerated reasons. 1. In argument(1),the Building Commissioner defends his previous interpretations of Section 8.9 3 (c)(v) of the Zoning Bylaw. His purported interpretation is entirely different from that of his predecessor(who was correct). In any event,the Building Commissioner fails to understand that the language in Section 8.9 3(c)(v) of the Zoning Bylaw relies upon the definitions in Section 8.9.2 (q)(4),which the Building Commissioner ignores. Section 8.9 3 (c)(v)is quite unambiguous that"[A] minimum setback of 600 feet shall be required for all wireless devices, antenna and their mounting structures, whether attached to a new or existing structure, as measured from the adjacent property line of properties which are either zoned for, or contain, residential and or educational uses of any types." Buildings are explicitly excluded from the preexisting structures referenced in Section 8.9 3 (c)(v)(2),which section the Building Commissioner exclusively relies upon. By the explicit terms of the definition section of the wireless service facilities portion of the North Andover Zoning Bylaw, Section 8.9 3 (c)(v)(2)does not apply to buildings or parts thereof[see Section 8.9.2 (q)(4)]. By its own terms, Section 8.9 3 (c)(v)(2) deals exclusively with structure-mounted wireless service facilities. Structure-mounted is defined so as to exclude buildings ("Structure-mounted:[Antennas are] Mounted on a structure other than a building.") See Section 8.9.2 (q) (4). Section 8.9 3 (c)(v)(2), in fact,presents setback requirements for previously existing structures other than buildings. Therefore, Section 8.9 3 (c)(v)(2)does not apply at all to buildings (i.e., here,to church buildings). In any case, where an adjacent parcel contains an educational or residential use,new or existing structures for wireless service facilities require a 600 ft setback. This view of Section 8.9. 3 (c)(v) is also the view of the Telecommunications Subcommittee members who drafted this section of the Zoning Bylaw below, and as evidenced in their letter dated January 26, 2009 (copy attached). "As the committee responsible for the amended setbacks above, we affirmatively state that Section 8.9 3)c)v) (2)is written solely for cases of wireless structures in existence at the time of this bylaw in 2000, and that all new wireless structures, whether attached to a new or existing structure, shall have a minimum setback of 600 ft from residential or educationally zoned properties per the requirements of Section 8.9 3)c)v) (1). Any interpretation that Section 8.9 3)c)v) (2) applies to existing buildings,rather than preexisting wireless structures, is simply incorrect." The Building Commissioner misreads Sections 8.9.2 (q) (4) and 8.9 3 (c)(v) and has improperly issued a building permit to MetroPCS based on this misreading. 2 Argument(2)really makes the same erroneous contention as is found in Argument(1), with the gloss that the Zoning Bylaw"requires"that a"pre-existing" structure(church steeple) be used for the mounting of new antennas and equipment. It is true that the Zoning Bylaw expresses a preference of sorts ("if feasible") for the use of"preexisting structures" [Section 8.9 3(b)(1)] but only for"preexisting structures"that are located more than 600 ft from residences or schools. This last portion of the Zoning Bylaw [see below],the Building Commissioner has chosen to omit from his explanation of his decision. 3 Argument (3)relies on a portion of G.L. c. 40A, § 11 relating to appeals of special permits. However,my contention is that the Zoning Bylaw requires a variance for a proper building permit to issue,not a special permit. It is the Building Commissioner who claims that the Zoning Bylaw requires a special permit. That is not true. That incorrect decision by the Building Commissioner is precisely one of his errors in interpreting the Zoning Bylaw that I am quite properly contesting in this appeal. 4 Argument(4) is largely irrelevant to the current appeal which explicitly seeks only enforcement of the setback requirements of Section 8.9 3 (c) (v)of the Zoning Bylaw as duly adopted(and recently rearmed)by the 2009 North Andover Town Meeting. This appeal does not relate to a proper interpretation of the Telecommunications Act of 1996 (TCA)and the Building Commissioner's argument, where it is not repetitious of points raised in other arguments(for example,the repeated reference to G.L. c. 40A, § 11), is irrelevant to my request that the Building Commissioner enforce the Zoning Bylaw as written. Setbacks All wireless service facilities and their equipment shelters shall comply with the building setback provisions of the zoning district in which the facility is located. In addition,the following setbacks shall be observed. (1) ...A minimum setback of 600 feet shall be required for all wireless devices, antenna and their mounting structures,whether attached to a new or existing structure, as measured from the adjacent property line of properties which are either zoned for, or contain,residential and or educational uses of any types. The MetroPCS/Trinitarian Congregational Church facilities here will be within 600 ft of existing residential and/or educational uses,and constitute a straightforward violation of the North Andover Zoning Bylaw for residential districts and schools. It is the duty of the Building Commissioner to enforce the Zoning Bylaw as adopted by Town Meeting and approved by the Attorney General,and not to gut it. 5. Argument(5)again refers to the Building Commissioner's personal interpretation of the TCA, such as it is. However, neither the TCA or anything else vests in the Building Commissioner the power to decide or not whether TCA provisions are applicable in a given case. The Building Commissioner's fifth argument in effect usurps to himself the powers and authority of both the Planning Board and the Zoning Board of Appeals (not to mention the Conservation Commission,and other duly constituted or elected boards),My request was that the Building Commissioner enforce the Zoning Bylaw as written and adopted by Town Meeting,not that he go on a toot of his own.. I request, on appeal under G.L. c. 40A, § 8,that the Zoning Board of Appeals reverse and vacate the decision of the Building Commissioner with respect to the setback provisions of the Zoning Bylaw for residences and schools. I also request that the Zoning Board of Appeals reverse the decision of the Building Commissioner to issue a building permit to MetroPCS for construction and operation of commercial wireless communication facilities in the Trinitarian Congregational Church and that the building permit be vacated,rescinded, and recalled as void and of no effect. Dated: May 28, 2009 EXHIBIT Section 8.9.2 (a)(4) Mount. The structure or surface upon which antennas are mounted, including the following four types of mounts: (1)Roof Mounted: Mounted on the roof of a building. (2) Side-mounted: Mounted on the side of a building (3)Ground-mounted: Mounted on the ground. (4) Structure-mounted: Mounted on a structure other than a building [emphasis added] Section 8.9 3 (c)(v) Setbacks All wireless service facilities and their equipment shelters shall comply with the building setback provisions of the zoning district in which the facility is located. In addition,the following setbacks shall be observed. (1)In order to ensure public safety,the minimum distance from the base of any ground mounted wireless service facility to any property line, shall be 2x the height of the facility/mount, including any antennas or other appurtenances. This set back is considered the "fall zone". A minimum setback of 600 feet shall be required for all wireless devices,antenna and their mounting structures,whether attached to a new or existing structure, as measured from the adjacent property line of properties which are either zoned for, or contain,residential and or educational uses of any types. (2) In the event that a preexistent structure is proposed as a mount for a wireless service facility,the setback provisions of the zoning district shall apply. In the case of the preexistent non-conforming structures,wireless service facilities and their equipment shelters shall not increase any non-conformity. [emphasis added] &JU14%4 IVA OAPt1i Urc Y WOOL 1Ntw Page 1 of 1 MAIL ."a Cla43rC Re: i ett®r for 3ignsWro Monday,3anuary 26,2009 6:05 PM From: 'B Fink"<PeacefulRevolutlonary®oomcast.net> To: "Liz Fennessy'<11zettafennes5y0yahoo.com> ...Dear Liz. I reviewed the tetter and agree with it and authorize you to sign it on my behalf. Please correct my name. Bernice At 05:39 PM 1/2e/2009, you wrote: Dear Beatrice, I am sorry to hear of your health issues that prevent you from waiting, and therefore signing this letter. l would appreciate it if you could reviewthis letter, and if you agree with it, then please email me back with a statement that you Agree with the letter and authorizing me to sign it on.your.behalf. t appreciate your time. Thanks very much Sincerely, Liz Fennessy ADulhr to AbLQYW I Buff"NO.( !ConsmeO n f ) Zoning REOWREMENr: Mm.+oAs.�mn»dawti,P.n•vor..h�.r.�dnn+.awgrrrm�n.�ruaw, eReel are,r�d YM 6nedy��r+'J Pw�«P��I.nd�s b dx���ad, Por Iwm6tl P�1 fid dtl�PSH fnedtlw PMlllm«rOq erCkRm ew mM news� are iK,e.w�rue d,rs.r„d decry rr.Tam«'s bated:,naUier dr«corn,d,.Porro tor,ddn.ar>b.n..wn.q�r,aea,aa««fe�oar«bee+' suWeot Prooarrv: MAeAP RCEL Name Address 42 2 Trinitarian Congregational Church _ 72 Elm Street North Andover,MA 01845 Abutters Properties Mw AM01 Name 41 9 Breen Memorial Funeral Home,LLC 1-937 Merrimack StreArthur McCue V 4 V, e d 57-59 Water Streettet L North Andover,MA 01845 41 dover,MA 01845 41 11 North An Harold McPhee 63 Water Street v`� -D7 North Andover,MA 01845 41 13 Harold McPhee X5 Water Street •d North Andover,MA 01845 441 14 John Dorsey k fA Regent Avenue Haverhill,MA 01832 41 16 Robert Geeing "` I VV Merrimack Street North Andover,MA 01845 41 2-0059.0 Gary Rodgers Church Street North Andover,MA 01845 41 2.0061.0 Cosimo Parco re*,,Irk%4,,11Church Street 7-(p-Q 9 North Andover,MA 01845 41 2.0051 A Cosimo Parco 61A Church Street North Andover,MA 01845 41 12 J.R.Vemtle P9.Water Street North Andover,MA 01845 41 43 David Cole Ci3 Boxford Road Haverhill,MA 01832 41 44 Sheryl Pendexter Y,.84 Church Street North Andover,MA 01845 41 46-0049.0 Mark Sokol �,N Church Street North Andover,MA 01845 41 460051.0 Tavarekere Prakasha t6w flL 51 Church Street )-49 pad North Andover,MA 01$45 41 22 Gertrude Paredis. 22 Garden_Street North Andover,MA 01845 41 23 John Shagoury $,-PO Box 4 Wayland,MA 01778 41 34 Harold McPhee 153 Water Street North Andover,MA 01845 41 311-0021.0 Ryan Noonan ✓��14 r n Y,d 21 Merrimack sheet 7--/q 'p North Andover,MA 01845 41 36.0023.0 John Cronin I/!3 Merrimack Street North Andover,MA 01845 41 37 Susan Fontaine UF''',,Attt Water street North Andover,MA 01845 41 40 Virginia KollenChurch Street North Andover,MA 01845 41 41 James SmeMe 5 Green Street North Andover,MA 01845 42 1-0001.0 PWip Sampson vo 88 Elm Street$1. North Andover,MA 01845 42 1-0002.0 Leo Gardner 7 e-d Elm Street$2 North Andover,MA 01845 42 1-0003.0 Kathleen Cronin t'Elm Street 03 North Andover,MA 01845 42 3 Brian Raposao Y k V vj Church Street QQ North Andover,MA 01845. 42 4-0032A Eric Roberta Yt'i Church Street iA?i-g-l/ North Andover,MA 01845 42 4-0032.B Adam Muzerall V e` uV'#V.e _,_.32 Church Street#B North Andover,MA 01845 42 44034.0 John Whittington 34 Church Street North Andover,MA 01845 42 5 Richard Richmond ;4 Church Street North Andover,MA 01845 42 6 Trinitarian Congregational Chu Elm Street North Andover,MA 01845 42 7 Marilyn McPhee rttUfK 42 Main Street 7-b-0�� North Andover,MA 01845 42 a Brian Cockelt t OGerden Street North Andover,MA 01845 42 9 John Morgan �S25,Garden Street North Andover,MA 01845 42 35 Brian Coekell 9 Garden Street North Andover,MA 01845 42 12 Christopher Lathrop V3-Church Street North Andover,MA 01845 42 13 Aaron Pertus 1162 Elm Street North Andover,MA 01845 42 14 John Crane Elm Street North Andover,MA 01845 42 15-M.B Brian Goodhue f t kf"iv. 5413 Elm Street 7`6 V q North Andover,MA 01845 42 15-0=.F Michael Keohan (ASF Elm Street / North Andover,MA 01845 42 16 Horace Shrvens;j � 46 XElm Street North Andover,MA 01845 42 17 Horace Steve �Elm Street North Andover,MA 01845 42 20 Donald Elliot 1,46 Main Street North Andover,MA 01845 42 21 Bryan Kirby tt(4 t'k,t,/ 54 Brookfield Road Andover,MA 01810 42 22 Christopher Alien A6 Elm Street North Andover,MA 01845 42 34 Mark Depolito .,9 Pleasant Street, North Andover,MA 01845 55 1 \inert Landers ''��pp Court Street North Andover,MA 01845 55 6 Timothy Seibert 45 Elm Street North Andover,MA 01845 55 7 Eight Fitly Five Rawly Chickering Road North Andover,MA 01845 55 8 James FennesBy f eA M VO P 77 Im Street 7-&-01 North Andover,MA 01845 55 9 Gerhard Schnellinger / WIm Street North Andover,MA 01845 55 18 Brandon McCue V 24 U i we A 59 Elm Street G -(f q North Andover,MA 01845 55 34 Progressive Real Estate Company V91 Hampstead Street Methuen,MA 01844 55 35 Joseph Mayry�Pleasant Street North Andover,MA 01845 55 21 Gary Wenhvorth el Pleasant Street North Andover,MA 01845 54 2 HDG Mansur INV SVC;attn:Clapper tAV.Market Street,Suite 1200 Indianapolis,IN 46204 rete 5,10=9 Pepe 1 of 1 This certifies that the names appearing on the recordsQf_ the Assessors Office as of 14 r! 1, 2-0,0 Certified by: new, S ?d °� PAGE 4of4 FINDING 9. WRITTEN DOCUMENTATION Engineer, Registered Architect, and/or a Registered Application for a Finding must be supported by a legibly Landscape Architect may be required for Major Projects. written or typed memorandum setting forth in detail all facts relied upon.All dimensional requirements shall be *10. C. *Required Features On Plan: clearly identified and factually supported when requesting n Site Orientation shall include: a Finding from the requirements of MGLA ch.40A, and 1. north point the North Andover Zoning Bylaws. All points, A-C,are 2. zoning district(s) required to be addressed with this application. 3. names of streets 4. wetlands(if applicable) A. The particular use proposed for the land or structure. 5. abutters of property,within 300'radius B. Fact(s) relied upon to support a Finding that the 6. locations of buildings on adjacent properties proposed extension or alteration shall not be more within 50'from applicants proposed structure substantially detrimental than the existing non- 7. deed restrictions, easements. conforming use. In Legend&Graphic Aids shall include: C. Address all appropriate details of the Building 1. Proposed features in solid lines&outlined in red Commissioner's denial. 2. Existing features to be removed in dashed lines 3. Graphic Scales 4. Date of Plan 10. PLAN OF LAND 5. Title of Plan 6. Names addresses and phone numbers of.the Each application to the Zoning Board of Appeals shall be applicant, owner of record, and land surveyor. accompanied by the following described plan(s). Plans 7, Locus. must be submitted with this application to the Town Clerk's Office and ZBA secretary at least thirty(30)days 10. D. Minor Projects prior to the public hearing before the Zoning Board of Minor projects,such as decks,sheds,and garages, appeals. shall require only the plan information as indicated with A set of building elevation plans by a Registered an asterisk (*). In some cases further information may Architect may be required when the application be required involves new constructioniconversion/and/or a proposed change in use. 11. APPLICATION FILING FEES 10. A. Major Projects 11.A. Notification fees:Applicant shall provide a check 1 J or money order to:"Town of North Andover"for the cost Major projects are those which involve one of the of first class, certified, return receipt x#of all parties in following whether existing or proposed: interest identified in MGLA ch._40A§11 on the abutter's I)five.(5)or more parking spaces, list for the legal notice postage check. Also,the II)three(3)or more dwelling units, applicant shall supply first class postage stamps x the# III) 2,000 square feet of building area. of parties of interest on the abutter's list for the decision Major Projects shall require, in addition to the 10B. & mailing. 10 C.features, that the plans show detailed utilities, soils, and topographic information. 11. 13. Mailing labels:Applicant shall provide four(4) sets of mailing labels no larger than 1"x2-5/8"(3 copies *10. B.*Plan Specifications: for the Legal mailing and one copy for the Decision n size of plan: Ten(10 ) paper copies of a mailing). plan not to exceed 11"x17", preferred scale of 1"=401. 11. C. Applicant shall provide a check or money order In One(1) Mylar,with one block for Registry to:"Town of North Andover"per 2005 Revised Fee Use Only, and one block for five(5)ZBA signatures and Schedule. date.. IIn Plan shall be prepared, stamped and certified by a Registered Professional Land Surveyor." Please note that plans by a Registered Professional metroP Z CS. Ung mit YaumeH. LLLLL4� 285 BILLERICA ROAD metroPCSO THIRD FLOOR CHELMSFORD, MA O 01824 Unlimit YourselL TEL `978) 244-7204° NFAX (978) 244-7240 BOS0380C HudsonDesign GroL,pac Q TRINITARIAN CONGREGATIONAL CHURCH II®U4DIRI�NOrt�f 4ULE9i01 ,��,�� 70 ELM STREET NORTH ANDOVER, MA 01845 ESSEX COUNTY N EL P. ;c.-)7 0 SITE TYPE. CHURCH STEEPLE F ,I ENGINEER/LAND SURVEYOR SITE INFORMATION: VICINITY MAP APPROVALS rt 6 A VIOLATION ARE OF LAW FOR ANY PERSON, uNuss 1NARE ACIINc LINGER THE Dn:EcraN OF A LICENSED PROFESSIONAL ENGINEER, PROPERTY OWNEFt TRINITARIAN CONGO CHURCH TO ALTER nns DOCUMENT. OF NORTH MOWER SCALE: 1"=500' LANDLORD: 72 ELM STREET REVISIONS NOM N ANDOVER,MA OIBO N "'' FIELD CONST.MGR: APPLICANT: METROPCS MASSACHUSETTS.LLC � RF ENGINEER: 296 BILLERICA ROAD SITE ACOUISMON AGENT: CHELMSFORD,MA 01824 FM Z44-700D .. ARCHTECTAMINEEN SITE ADDRESS: 709.MSTREETNORTH 2 10/27/08 ZONING FINAL ANoaVFJtMA01845 ; .' SHEET INDEX 1 10/22/08 ISSUED FOR ZONING COUNTY LATITUDE N42.6BD67P 1' t' DWG. DESCRIPTION REV, 0 10/15/DB ISSUED FOR REVIEW LONGITUDE: W-71.128693" REV. # DATE DESCRIPTION T=1 TITLE p ZONING CLASSIFICATION: RESIDENCE 4(RA `^ Gt PLOT PUN 2 PROEM Iq OE9am K SCALE. -� ORAMN Bf: W AS sHONN ZONING JURISDICTION: TOWN OF NORTH ANDOVER er>�eoc Z-1 ROOF PLAN AND EQUIPMENT ROOM PLAN 2 TAX ID PARCEL NUMBER: MAP 42 BlDCK2 :"- cf � ---_ , Z-2 ELEVATION 2 OMCD er: OPH ARCHITECT/ENGINEER: HUDSON DESIGN GROUP LLC y , Z9 DETAILS 2 SITE NAME: STREET t LrDNOrTE2-1m ; �; wa��:3�, o�'.. BOS0380C N.ANDOVER MA mes POWER COMPANY: NA71ONAL GRID �- r`--: f � TRINITARIAN 25 RESEARCH DRIVE WEMBOFKXJGK MA015a2 CONGREGATIONAL (soBj 3etEz000 H�. TELEPHONE COMPANY: vERIzaN y` 'i r / i CHURCH 185FRANWNSTREET SATE / /'r' �' DO NOT SCALE DRAWINGS BosroN,MAHmm i (800)841-9800 \ i i 1 l�/f Nr�`l SITE ADDRESS: CONTRACTOR SHALL VER FYALL PLANS AND HOSTING DIMENSIONS AND CONDITIONS ON THE JD8 SITE 70 ELM STREET SITE ACQUISITION MANAGEFL KATE RUGMAN 9� $. y--_i i AND SHALL IMMEDIATELY NOTIFY THE PRQIECTOWNERS REPRESENTATIVE IN WRITING OF DISCREPANCIES NORTH XWVER,MA01M (803)3188000 PROCEEDING WITH THE WORK OR BE RESPONSIBLE FOR SAME CONSTRUCTION MANAGER: MARION HUMMER DRAWING TITTLE: (978)2N-7278 OPS CONTACT: MBa:VALBANKS PROJECT DESCRIPTION l�2147290 DRIVING DIRECTIONS 1. THIS IS AN UNMANNED AND RESTRICTED ACCESS EQUIPMENT AND WLL BE USED FOR THE TRANSMISSION OF RADIO SIGNAL FOR THE PIIiPO.SE OF PROVIDING PUBLIC CELLULAR SERVICE FROM 285 BILLERICA ROAD,HEAD SOUTHEAST ON BILLERICA RD/RT-129 TOWARD EULOTT ST.GO 0.7 ML.MAKE A THIS TABLE WILL SLIPPY NO U'�V6HA8tT HIS L'f. U-TURN.GO 998 FT.MERGE ONTO US3 N VIA THE RAMP TO LOWELLJM41lSHL1A N.H.GO 0.7 MI.SLIGHT RIGHT AT LOWELL 2 NO POTABLE WATER SUPPLY S TO BE PROVIDED AT THIS LOCATION. DRAWING N0: 3. NO WASTE WATER WILL BE GENERATED AT THIS LOCATION. CONNECTOR N(SIGNS FOR LOWELL 0ONNECTOFHMWRENNCE/1.495 M.GO 0.6 MI.TAKE EXIT 90A TO MERGE ONTO 1495 4. NO SOLID WASTE WILL BE GEN ERKIED AT THIS LOCATION. N TOWARD LAWRENCE.GO 11.4 MI.TANG:DOT 43 FOR MASS.AVE.GO 0.2 MI.MERGE ONTO MASSACHUSETTS AVE,GO 5. METRO PCS MAINTENANCE CREW(TYPICALLY ONE PERSON)WILL MAKE AN AVERAGE OF ONE TRIP PER T- 1 04 MI.SLIGHT LEFT AT GREENE ST.GO 0.5 MI.SLIGHT LEFT AT MAIN ST.GO 79 FT.SLWIIGHT RIGHT AT ELM ST MONTH AT ONE HOUR PER VISIT. DESTINATION LL BE ON THE LEFT.GO 02 Mi.ARRIVE AT:70 ELM ST,NOR846 NORTH ANDOVER,MA 01 , GENERAL NOTE ��Q�O/ /"• •`\ RE'$' `/ 1. FIELD SURVEY GATE N/A 2 VE7ttIGL DATUM. HIKIIXOTH,ANEAICAN YERDGL DATUM OF 1908 m roPC P / 3• HWdZONTAL OATUIt ( �NORTH AM_ �. REQS' \� �` C C SITE CONTROL POINT. GOITER of E]fISINC BUKDING�(WD8.1) Uniimit Ypp�if LAIIIIAIE:N 12899570' 5. PROPERTY OWNER: W-71.128595 285 BILLERICA ROAD OF 33-° O /' \\ \ ANDOVERNORTH CHURCH THIRD FLOOR n ELAN STREET CHELMSFORD, MA es-e \\\ uNESL \ & SHE MASER, ZrA=W 01e45 TEL (978)824 244_7200 / \ RES 33-34`\ \�\ \ 7. srrE ADORES$ 901 FAX (978) 244-7240 / \ JO EW �' RORIH ANDOVL7L W 01845 /. S-j� R. APPLICANT• N f �TF� \ �\\ \ wssAaxlsETTsLlO, �/" \ \ POSED �' `\ \l' \`\ 9. JUMSUCRpµ CHD.NSFDRD, p D TLOM Huds on A�1eTROPcs \\ / 10. TAX o 'OWN of NORTH ANDOVER, Design Grou �/ I3uc lb y y� / ' `\ �EX7AREA'UNDER ' RHESSTAM . * \ 1,- DEED REFERENCE 42 BLOCK 2 EE 9D,�BOX' 12. PLAN R®BOOK.WA /�`• /' \ h PLAN�RMORIN ANDOVER EFN OM.17 RS M" 111110080000STRIMIRIAM RM.8URE1 t0f l \aAL / 42-1 CHURCH PROP�p/ / X16 y (v�j \\ R55�S20` iJ. ZONING JURISDICTION: RESIDENCE 4 Kl=MIOIsb 7�1�7R/R8r4 9 41 / RE& RES. �7NORTH ANDOVER D fljl S ME'TRpp,CS '/'t4_�` 33-2 h\ \ 14. LprpEnRC No UTILITY F'�'11r/R S7R8pp0 *mwm ' RES. \/ AND E1Im INFOPLµ W'�DErERN9ED FROM SURFACE RES. M. /' K �2 f � E3HRID \ `\j "/ \\ CALL THE UFt7ungq FORD UTILITIES IN THE�TW 'OR SHALL WO RES. / /" 1� (\/�\\\ / PRIOR To AmyA!1 PRE-CONSIRUC>K)H� TO ANY SITE WORK _ \ \ `�� EXISiINC45.81 X Fr. ;* PMNTED 70\`� ' "�p'J.'�`. `\� �\ Oy1FE �GM�ME NACH,yY: _ FICAITON 72-ipURS \,r, () A/1 ' 41�-572 "� ' PROPERTY �Y TCH /'V \,/\/ z BEFORE YDU OIG(Ch: KBOO_ '-888-J44-7117 i�\,. •)`J r ` 41-2 .\E(IVP.) %%1 ' Q� / \ 42-34 �`` 15• PROPERTY LINE INFDRWTKIN 6 \ \ /' OM ASSESSORS PLAN AND 4 / 8A'r `\�' / `�\RES. I 4H�. / " NESULT ODOMMWrsi AND LIS IS NOUNS CONSTRUED IXAS f41N \ / " I ACCURATE FIELD SURVEY MAY Dom'AND L SUBJECT m CHANCE AS TAMNEDµTHE 42-21 I PERFVRIIm. ISCLOSE A FULL BOUHA11Ry SLARVEy WAS �� / 41_ r)r '-\ RES. /� /�� LLL BD"SYSTEM THIS PIANWING TRS - NOT 6 ``� RES. ,/ �\ \ `\ 1 /' ' �REPFIESEMATIIO OF TRUµE t .IT IS NOT WFMDmTRUE DTO BWµ \ \` 47-1D \ .\,-40 �,AL ���`K',.,.tiREL p, / 41-13 RES. V,,�. RES. X, \ ,5, 42-1s ENGINEER/LANA SU 41-37�0\i ,� /' Sr /J� .Y ! RES j R SURVEYOR /\ is A NouTpN of / \ / \J� \`�/ LAW FOR ANY ' RES. v I / \ 4114 / \ �F,f� M1�RIES. �,`�/' 44 /' 4S / �f/\ \ \ / LE�D UNLESSOF LICENSEDARE,C REr. \ / \`/' GJ� / UNDER I'DIRECTION TO ALTER THIS oocuWNr.PROFESSIONAL � 041- 42-3 Q / PROppTIy L,pg \ \ \ RES �- 42-Iz / 42-16 / -- — R \� RFs. / EVIS _ \ / /\ �\ BEs. RFs IONS \4 X \ \ J ,\ // .` ABURINC PROPERTY LINE / \ < W /'' A � / CONTOUR ' ' \\ i-- `\ 42-4 /' --•�_a--_i �CFS LINK FENCE RES. / / --.__ /' � PFKN'.CFWq LINK FENCE 42qES.-17 EXIST.TREE LINE 1pDh�F / 41-3e \\� \ \`` RESP / \ \� 42-z, ----------- ---- --- FALSE STREET LAYOUT 2 10/27/08 ZONING FINAL RES. \ \ RES. / --�.--- ----- ST.EASEMENT 1 10/22/08 ISSUED\ �. � � / \/ ^-- ED FOR ZONING � > 42-5 DI oVET+L+FaO u,xmEs 0 10/15/08RESISSUED FOR REVIEW/ /' .v__. PROP.o�ERHEno unLmFs Rte- B DATE EXIST.U OUNO u12mEs err DESCRIPTION /- 2-35 41-16 � 4LANp PROP.UNDERGROUND �: K SCALE �- BEs. \ w- \ / , ERGROUND UTILITIES aDSgTppC pRylN EI /- �- sI` 42-6 DUST.UTILITY POLE P= GNR'KU 9Y: 011 A5 5110WN 41�\ F� 4R2 F �i RES/DENCE4 ZONINGZONIN '�'°' "NE 517 NA �- DISTRICT BOS0380C 42-17 / \ / 1 EXISTING BUILDING / \,, Q_l� , *, ,, nYP, TRINITARIAN 42-,° 42-10 ----- \ ' --- CONGREGATIONAL -�- �I / \ - _ -'- CHUB `'\ / 42_2, �• /\ `'\ '\ 1 1 _i--�- ' -i--�- CH /-- 42-,9 `'\ \�'42-11 '� --/` S,�R�G, .� - ZONING SUMMARY TABLEADO , TRITE NORTH _ -" _ STREET RM T � ZONING DISTRICT. RESIDENCE 4(R-4) __ \ ASSESSORS OCK 2 �" '•�MAO1845 ' PLOT ' \ ; PROPOSED USE: WRQ�D1tl1UNIG pL ��� ,10N FACILITY C-, $cur , A DIMEMSOI DRAWING T REQUIRED ROPOSM 80'-0.30'_0. 0, LOT AREA MINIMUM EWPRQa�OSED 80'-0- ,2D• D• ' °° Oft SF PLOTRM 180'_p• LOT FRONTAGE - I.PLOT PLAN E ASSUMED IXI BE 100 FT HlSEO ON TAX MAPS FROM THIS TOWN OF NORTH ANOOVIR ENGRlELR MUST B<INS DIFFERS TFIAN SHOWN, FRONT YARD SEIBACK� - 1723 2 SETBACKS ARE TANQ4 FORMED OF ACRML FIELD CONDITION JO FT 89'! 7J'3 FROM THE CLOSEST P(NNT OF EOUIPWEMT TO SIDE YARD SETBACK• 3.SITE SURVEY HAS NOT Da.CONOLICIED RY PRCPERIY LINES. 15 FT 47'3 f -- HUDSON RESIGN GROUP THE COHDMCTOR SHLALL 89 3 DRAWING N • I LLC FOR INS PROJECT. ELEVATIONS WHICH E �DMENSIOI-AND S JO FT 193'3 200.3 DIMENSIONS MEASURED H1>Mf.'10R'S WORIL EOUIPMET7T TO FL ��CLOS,POINTOF C_ 1 I I I i LEASE ARE UNDER STAIRS (APPROX. 88 SO F7) PROPOSED -----___� GRouNo co 3OO MEiROP� 2 ■.■ -- D,40ATEx MAM M NODE To SECTOR A PROPp ROgy 2'' etroor EW�IPM�ENf�ROOY Tp I ------------------------- PROPOSEO MEIROPCS COAX Uniirnit Youmelf. --- CABLE RIM FROM PROPOSED ----------- E�MrorRoom ON r---- ------ 285 13ILLERI ---`i t_ MSIDE EXbTryrp�y Tmr. THIRD FLOOR CHE 01824ANTE"MM. OF D. MA PROPOSED MEIROPCS —7200 j L--- PAINTED FIS GLASS BCoV I FAX (978) 244-7240 I i 120_SECTOR B Hudson300' Deslgn GroupLLcSECTOR D TEL, s5I O FAX- O lx" s,m I I I EXISTING POWER PROPOSED I PANELS R 4TSTO e I W W OF --------- --- I f— c� AMD- ---------- ,"vitt F' G \\ ---------------------- EXISTING SIDE \ �1. I o 4 /z`J, ' ENTRANCE TO \ U�NpERpRp()Hp 210 J CHURCH \ CON A it \ (REEOGTE wIREs T R C Lv EXISTING METER--J \ PROPOSED ERGROUM O oUUrTS) SECTOR \ UND \ ENGINEERAAND SURVEYOR R \ EXISTING UTILITY I IS A VIOIATIDN V LAW FOR ANY \ POLE �542/VZ2 UNLESS \\\ OF A UCp,SED UNDER,FIE DIS P 10 AL1E N FESSOIAL EW '"�"°�" ROOF PLAN CROSS STREET REVISIONS I-, SALE:8•.1,x•_ 8-0' 4-D• 0 �- 9'-0� 18' 0• I ePROPOSED GROUND PROPOSED INDOOR Z 10/27/ 3 &WN4 INC EXISTING BOIL �n C NEi ZONING FINALROOI 1 10/22/0 ISSUED FOR ZONING 0 10/15/ ISSUED FOR REVIEW EXISTING Rte' DATE DESCRIPTION PIPE I PRO=w 'E4- - AL SCALE ® RD54,BOC DRUM/B1,. IL AS SHOMN E"SDNG WALL TO =WGIBINDOOE'TR 4 CHEW BY. DPH UP BE R410yEp r SITNAME, POWER CABNET BOS0380C EXISTING DOOR r/ (LOCK TO EI REPLACED)-----lll I o❑ TRINITARIAN ---- ------- ------ CONGREGATIONAL I ' CHURCH PROPOSED pOWER/rELCO a 'ICH s•-�•: D G ria+`�--- ANTENNA ORIENTATION KEY S"� ADORES PANosROM I PROPOSED I-----------, AVALLABLE I 70 ELMs�7 I 30 NORTH ANDOVK MA 01846 I SECTOR A P i �ROPo RUNMErRoPCs COAX To PROPOSED I I BELL DE ONC 120* 300' SECTOR 8 ROOF PLAN AND 9 2 EQUIPMENT ROOM PLANSECTOR D EOUIPMEIVT ROOM p�N I 210' I Z•-B. �'-+• °• 8.-4. SECTOR C DRAWINGNO: 2-8• _ _ Z- 1 i j,iOP OF EXISTING SPIRE ELEV. = 150'-0 t AGL)— metroPCS. Unlirwt Yourself. 285 BILLERICA ROAD THIRD FLOOR CHELMSFORD, MA 01824 TEL (978) 244-7200 FAX (978) 244-7240 Hudson11D sign(;roupuc 11mOB000p $> \J Ivil..i V' �. PROPOSED menwpcs ENIEN OF MU 80*NDA(11'P. OF 6) eo-o t ----' +►� �n FlDBatctASS L00� s W7CH I �• I _v j F,,' rC PROPOSED WMOPCs A ANTENNA PAINTED 7D WTdi®3 I I ENGINEER/LAND SURVEYOR IT IS A VIOLATION OF LAW UNLESS THEY ARE, FOREXISTING BELL IMOFR THE / TOWER OF A UCpISEp PRpFESyO�ETIGINEERR, ALTER THIS OOCUMENr. i CAfU RUNROPOSED� REVISIONS EQI� ROOM ON GROUND INSIDE PROPOSED � E>aSTINO BElI TOWER i I I i I I � I 2 10/27/0 ZONING FINAL EXISTING CHURCH i 1 10/22/08 ISSUED FOR ZONING f 0 10/15/0 ISSUED FOR REVIEW Rte' DATE DESCRIPTION K SCALE 0�507LOC ACU XAL 11 AS SHOWN 1 - I BOS0380C TRINITARIAN i CONGREGATIONAL I CHURCH S1 ADDR cc . LEASE� 8'-B'x7Y-10' I UNDER STAIRS(ApPRO7f. 8B SO FT) Z�T 70RMSTREET AGROUND LEVEL -- - O I I I RA G ---� ELEVATION EAST ELEVATION 8•-0• 4•_0• 0• 24.-0. DMWING � I i I I I f PROPOSED PANELIANIHNNA7S- PVC AND ANDAM STAINL�SMEL CONVUR W/OOILT CET AN ((F MMIX PAINTED 1 OALV. CLAMPS ET AND PIPE COLOR OF SURROUNORVOS) (PA1NTEp COLORO OFUNISiRUr ��/"'� SURROUNDINGS) S. UniI Your ff 285 BILLERICA ROAD DPS�� almNo WALL JOW Wool)��/ THIRD FLOOR SN x 3.4b 'G'�W/UG SCREWS(p CHELMSFORDMA .PER UNISM,4) 01824 EK1S11NG CONC. CEILING/WALL (z)4",N, (978) 244-7200 HYZO ANC►pRj OR W L FAX 978 E17lLlt, ( ) 244-7240 STAINLESS SMEL CR OF D' Hudson µ(PNNrID � �S Ut( W76 DOsIgn Group 40 GPS AND ANTENNA D suRROUNDINcs) UNISIRUT Z-3 scut:NIS DET of SURROUNDINGS)COLOR 1lmOgpppp °mffr ' CONDUIT RUN L" .:Ma of �� O= ANIEL. 0 PROPOSEDC 1 V --,'• LOUVER PAINTED G70�'A kATL`y �L4ZlNn I o.4 7 r I CCARN &0'"DDDR p✓/ ���, " F,<< <i PROPOSED PANEL ANTENNA l�f 7L ty�\` ENGINEER/LAND SURVEYOR xPz4t PowLR CABINET ' UN���a''9 U FOR ANY ajtM AOIINO UNOEH EHE OF A UCD'RED PROFESSION, ENpNOIRECIION I M ALTER THIS OOCUNEW z-a/°-s MauNnNc PIPE BATTEREVISIONS BATTERY RACK ' BATrERY CABINET I WALL MOUNT KR FOR 2-2/3-, PIPE M 2 10/27/0 ZONING FINAL Eou PARTf8I59Z OR APPS DESIG_ _N LOADS 1 10/22/ ISSUED FOR ZONING � 7 0 10/15/ ISSUED FOR REVIEW REV. DATE POM �'�x znsl x n4ti1 DESCRIPTION POM S�PLY Rglt: 120 24oV AC FRWIL7 Ra oFsr+[n W. K TOWER WALL sCNc EXISTING BELL SOC ONUN AL AS SHOWN ' MWas". 00�x 74.n 0�0('O BY, ORI 09%mr 4 NR a4mp SITE NAME: HILTI wr Hy 20 ANCNORING sySTEAF 1/2- 33-V x 1an x 44.5-1 BOS0380C /o. 4 K TRINITARIAN CONGREGATIONAL CHURCH EQUIPMENT DETAIL70amsTpEET Z-3 SGiL NiS NORM AM OVE1MA01ft D�Y1NC T117 c• .�"^��� ANTENNA MOUNTING DETAIL Z-3 SCALE NIS DETAILS DIRMING NO Z-3 — i i 11 ";'�,,,� . , ­ V--__ . � I I ,%�,�.� �', V, ",_K"' I,�,v�',�` ..., ..�! . N 5 � !� ,��06, �,_, -.N�-K,�� '$�� ."I ­ 1��v r 'k ,- IN lb",- _r0m,pW Uv "Ky,-v:q4-­rE . ,�'i F,`TN,Y'W%,-A­R­ 4k,vt,;i%A v'.rg , WE� ,elg�,�fcaFl"I "I ��, , "',z .4 �j�� MY �� �I - (117 Tr_, %��_ Af ��;� - n _t I, " " I f.Tff , ,ya., o,,�q��yq nggni, 1;-1, "-1 W 1,41 !,� � r�,�, 11 . , x �.c - _r-1�1 , �t �11 , " i 7�� I W v*� "-� T ,� A '. .5"',-,v, 1 -Z's, � ��, , , A",fflw`"� 2Z,.­1,'WK;-& ; 1, ., q 51- UZ'.� , --"' -,�,"�� .MWE ""No I - W*Y'1­1�111�­v�% -6 _9 �' � '.. � � X, I P, , , �� ­; ­_,"* �-'L`�-, �';.'.4'-A,�,',"�,'� *,7,-,!,�,Tv.�*,!� -R%�V�.,­­­A R-*..""'?- f ,�j ,� ,g "M � , N ,',�: .� 1; 'F��,41 S,C��'A"' � -, " " , g��,0.0 -,I -,1,�i .. ­- ­­14 A - 11 " , ,� �1;:��oi iN��, 5 , �,� , � �­;T�-,,�­­k _,,."l., . � - , _1 "��.., ,,- �,�,�� ,P,�_' ­­­ I W311 ""'�,-,*",;,�:�,.,,,,",',,��,,-,,-�,,,--�,� �""�,�, � ,, , ,,�A.'�t-lj!�.- ,i -N,, � � ,4:"1...Z4,- ---' - ___4,�`� , ,�6�­V­ Mly _7 �z . __ - f��il.� irK rl,?w , ", ,"I V�e .�,, , � t _P1, 1_�. ,�� `, , �K , *, , N �111"W�,'�'11;'s� .,,�..�11 llb.1;114���rz ­ ,,, ," 4;#-, -A�,��7jf�,��_�� - �_. 's ,�, ..�',N', - I � , " , , ,t, -, , . A"",'�**,�", , , , � , 4­rA*-S-- - " . -�Vf-V�-��­ � ,2�i;,� -R".,k � - ",-,�.�­.�:,-`;t--,' -,'-":- .';��,�,'.,� iVi",' . , -, 5�,�j'.l�_, .1� 'A" , �M �"."�IAVI�� 1.11 i ", 4" .,,�', ., �4' ?,r,,,� _Aiq�'r �f ,,�� � , !,� li., � "k, :� �1:�, -, - --P�1_��", ,,,��Ix,, , ,�,�,�i. - I A-My"Nomby AGAN,��T'',�,��.1,�,i��4�-�-",-,.�,� 1_�l"i1;r,,1Wn`11­­'1 '��.f'��,,�'.�,�,-�,�i!44��,Z���,?i!ii�ll,�Ir.1,V�"i'�i';�,'I�, I � � ,� , & ,�,� . . . I."� 4, ,; 7,3,- ",­­...�, . �'. , __ � ., I - _ , ,4 ��4� A�1,1',"'"' "v�___,���.,�`41�;,�'t'xl`i4 . -- '51;t,�,,I�' �A - � - , `,%"�_ - 1:-,Lr-Ar,- MR i "� -- '' -­ "- ,;�,'�7-�, -,­.�-,_,__� - ,,Il."­-��!;;,�j�v�,.�,,,.,_,, ?'�'t,,'.-4� ',��l��,� -�,',,�i�,`n'!� - "nr,�,��,;I"-";-� - � qqpe_.6"','�`__,"`yl7,�,`-,-_��,� ,"0,111­:11,11� ., " ,_j__u - .1 k- .. ,�, 4 _�', , kno"n-owyn , - _ I-, , ��;,J,i, ,� '�`_�,__-�­, ,�-.-, !� , - . ". , , ,-- - u,w__-I- - -, - ��-"-, _T 1771 1 - Z �m - ,, . �7,,�',';�','�',,'�-,�,"�l""�'-�,,�,:,i�"',-s-,,, _­�,.,,�,! ,��.�,�, �3�,,.m��-,��--�-���-,rir"�1-1-�I --,I,�',`� - ;�,,�,,VYW`I_d, �i� "14_�,I - ".;g�,f,W� .4 ; ,�.;�, �, IA_,��­...,,,-,�- - , '_ - - M., 4,��;.,�-�,V,�;,:�, ,­,.,,�t��J-��.�,,.�",-"��..�,r'�t���,7�-,,i�-i.�l�,,�,�z,�,,,�,t� , W I _ ,,, - - .,�r ��,��, _ -, , -, 'fil Y, - -" -­,�,�,_� -1-1,I'.,"l-., � - _��,::' "J�, ,'­��" -� - - f­11W­1119­,�, ­ � � , � j-, p_f"�',�%, ,,�% ""'I�','_­,­,��!'i'�,�, , ,,!,V��,,t��%, 4 "��- "�., 11, - I __ - ­ , , ,� - ��: -t-' ­......,­,', k" , ,,�_ � i k." , ".�W,,.�I, ­�, , - ` ,�,,�"" , _�W 11,tll 04,?�;!�-��;-�i;U,-,47,0 ��,03�;, ,,�,UVS-11� r,?-,-I ,., . ,, *1 A- .;,�. , - � , , , N�?.il', .� �_ . " r __:, P-I.-0�=I"1,., -',?­,Ir,',�-�4 Z,-q,y�%q �r .- li ,'�­ � , ";�, 1 i W � ,, - , - i i . ,',,� ­'" � "7 iffukg- "­� -�4i� ,�,,�-�-,�,,��-,.'��::-����--�"-,�,,��'. _­��.-,,­�,:-,,�,�,,��, '­-,q�--�VT -�,,���,,�':,�-,,,,e,:*�",�'�,��.�,.'��� ..--t.7";". "", 1.1-1���14,Y,;"&,�,'I�-l��;il��, - _,_'.. 11,1�1­ ­ .-n-,", .�__-,-.:",.� , t��:.,' -", _� -, . .......;" __-Ii"" .,:%,,,,-­��.�O; �,4.",�.:,��4�'�";-�.���,',i�;-,,�,i;-�,,,'�.',", ­�Z�'­`­� M 'I'' , -,".: - ,, - " ,�',, ,:.i,:, ��, - - � , -�K ,�Ir . _ ,,i,�X� �1 , 4 - . ," ,, ," I - --, , , - Wympa UN __f"(,Z1;_1 U_____��', ��7f,i .ftgo ,", .', , - , .., % �, �� , - , ­ , -,,,'� a g a I - ­ " W,mmgm,im!�,l�;�-t.�-9�,"��-"�,-!,.,��;�--'�"P, ­_-�'­�_�`-�� i'�,-�"-.,��,,',�,,,V��",.V�', 'r., ---A'�--r ,5� .11 ­ , ­ C �, -W-I� won A aw , �-`11,�­�,�';,�;&",�,'_'A W-I'W"'K_� - 5-- -,- ,,, -, , I ��,,r,;1, I _� ,�., .,_,,,;,,, _� ,­:.'�'1',,'__r'.�.�,�: -, ,�k,�_,. ��,-,�.,�,�,��1�1',�,'40�i*�,:� !",-,i'- � , kk.,',,�,-k.1514,�,-- I_ : ,_ .� , - , R02ANAWIX "". � .1 ,:�, 0.01 , v � 0 1�1 - -, ��, "':,enymns" . -" -, = , 4,*�, i'2,�JT-,­�, _ ,1�1� ,g '. I I R,""..t'�f "'i i iq,"N3-a-g.g� .�-�--.,�,_-, 4 , . _1 . A kyn AQY4!`�-_-"�,�:'!I-, ",_',;,�,"-'��, ",�,��,,-�,',,--,',,,,�,:',,",,,,��".7", p�"--7 'P-,�' �-', - .�� ,.,��I� ,,� W 1. T1_,1­­v'r.,­_"� ,­.. - s W ,,�,, " ���­;, , -, '.71� m,,­­]-��;� ?, �--,grp-�,-, , , _ 111on"i �1- .­�-11�11 � , ��;, ., ---'* �­_'­ , � __,,, Q,4; , ill I `�, . ��,�, -,����":"��;Z*"""��'-��"!-",���,!,�z,f.��,,� ,_1 �, �L �,_ .i , - , � , , H '- " �s ,,, -.11, ­ " ,, ;�. , ,Wit , . _ ,,-37-,�.:,� _, "', �� , , "I , , , -&QQM ,;�,�, �, ,4� :� "", , F NIAVI'A"I�-1 l, , . .�,,,,,vv ;,­,',n,,­­­".-� I—, 'i', 'k-, - ; a a,�?� �e',,�,,,, � -1"7���. � " , '44 � , _ .W�,W " --_7�c���-il��e��C,�,- :,,�,,�,% .,,:, vo-,�,"��!%', - " v ."I . , ,;1�l�lt.,,T,";;�V,­�,,�I�i.l ,_ -,a� , � � �, , . , - . "­��. ", � ­,­ � ", , - 6 �k ,j,_ , ,i�,M;��.,a�Aymz' �4 �,-14-Mvp ­;�',� �-�:�!",41�­', ,�, �,- I 10� r -'s 1 7 v- - 'i, 5 AWINM­,--,�, ­� �g - -701 .4 Z_'­��,�_?, �, -�::""�,,.I�-,-,�'.,��,-""��,,����t� ­�,',�i,,'J2;1­:?,� ,, I 1�1' 1, --;',..,-��.,���-",f,�.v���t,."",�,,�i5���.,- ":g".3 -,q�.� �A ,���,­, -,� , .� ,�,, , .. - .� _... , , ,� I , , - � - �"I.1",�--�- i , ,� k ,�`�,, - .� _"�� " i, ,--.;. "", ;,. "K,W'%�g, !, ­`t�",��,e- 'i,'.� �l --,,� -`ili�k ,''.. �_;, s5 , ,� , I 1-�_ 1 ,q , �, k . , , .__ � I _.1111 I I � 11 I I . , , - _ . � ,�?��,�,7?_­­ ,��: " ,;V� . Wi � � ­­ ,v,gR, y ��"' cp,.,g�, -izi-;�,��', ,c . �M WML4&ag- r, �", T� f.�,61, ,�t N,k�', , , 'r r�_�,�t M '1',­ � , , "-, ',,"n, I hl�., 1:- ,, I - , `...'� - �,X� i 1,��,%)T, - -, - �. ik ,""' - ­,­,11-l"W �,,$'­ 4'�Y"-­ ­X�', .''�!_ '� -7- , -�07' , 1. � �111_:N­ ,.�, _ � 1. .1 , q k_ !,�.. .. I 1.1. I ..., , �m -, 4_z A , " � .NJRII'Tl� ,?-p-,!ej"1�.4,;�,"AF"I'­r-,­ . -, , - .1- "" ,4.4,, I-I',-`Gll_��Y'_'.11 lk"�,­1, V.1-11.111, - -A�.."tjk.��:�,�"".-"2',P�I`Z�P,�` -, - p, qqa � , .1 I) i "' -Y , ­.1, - ­�,,��7�,1'.,,�ir�-�-:�,� -7��.A"`I,e, 'ir , - N _04" � ., _�� ,�� ,,��'-.����":'!e"*',',','.,'��it--V�-�:"-i�,-��I,��,�7,:;'O,'121�1�%54-�-�,.,'�,��';i� _,--.,i-�,,,'--'1'RI,, ,I��"-,��,,il�","��i,v,-,'��,���k,i , " -� , W? , " . ,,� ,- - *-,­ -­` " , --`!�.`�',,,-"" �0. , i;'." ­­, , ,, , I . _ 11, I I _ , .J� _ ,� ,�_ 4 ,p,� � _p if',,",'�."��-,,��,�'�',�,,*,"!,,��-r",�-,�-,, -.1-11-1-1—p-­­­­ ,� N, , ,,,,i�`-,,� ."-,,z"����,',,_'.'. ,�,- _ �A�,�_ �-­0­ ­,�� ,%'g gf%f, -'�.% i,4 , " ". - - -1 � �,,, -v . ',- , "; , , -f ,2j� � -":f�,,,!�*i",'.'�i��-n.";:,�'.,".'.�.*,�i.� ,,.-,,�,,M , , - , ,,,,,,�� �,_,�,7v� �., vc , ,�'r'.','A�Kt":,�,!,,�,_,T�_O,f�,,,6,R�� , . . 1, -, ,W �, - , -,�,d�,�'.'� $`�;,6�-�,4��?��,`,'�­_ ,.". - , 'a �'. � � � ,111.11 11 1.ill�11�,,,,_."",�1�,,11�'�.,�',� ,� r;z, .­1�11�1`11.�'g� .......�_"�, " 0 -T. �. " - �.x�� * �,3_.A ,�_ , . �., " ,,� i. ., ,��.�,* �x ,11 W,0T, I "2 n__. � %ig� �i� I 11 I"-,I�11 U 47-�- ,, oaw%.-F�-� "'i",7, � ,i 1�, ,. " '__,I..1-,; __ __. �', ,�,.,",g��,,,��-7"-��4Y,-�":�,,�',�i,���,,�','�,- _,f�t -��­'.I.� , 'O -1, 1Y,'­I�, ", �,� , _r lm !H q � C 1, ,;�_­, ,* 'f 'A-��-,-5,jj,',�'g,0M*��_, I I �..... W " ,�. ,- _., �, 4 � ,--l�-,,.�."A.�",.,?;."Il",��,���,,�,�I M - - pW _,W I , I "�_ -, ­­"',- , v , -"Zl� .,,-��-� '��"` ,. , ; � . .,-, A-,��.1 111.I".--1, ", 'M -, ,, � � ""_*". " ,-,,.- , , ,;�,, ­ _f , 1� $-,,,�"'� "-� ..)� ,,,�'_,, i ,� ,4� 6,,vi,�.4 ,i"l .� - ­�=W_"�, - ,11,T',�­ ,:� -1_- �111_1­­"`�kN 1:10- , ;W*111W�,j,�, , i,-, ,- � .. ... . ",", .-, , - "', 1119.�� " I . . - . , - ­_ , I"I m ,, It �­ 0 W-y""",-squ'-, �,�g ,� I � Na�. W -,;,� m� , - .Z*,, . ,.. ,�, -1 _.­­ 0"&'�­­_, . �11­­V'L�l 11� *'X� ,,��,�y , -� *, ��V%," ,vp� Ig At A Wj! � - i T ";­­'-�'�`k .�i,'�1�.� - , ,� 4W, ,t , , �,_,, lr_'�, li lf��Z�'IIIP'j * - il�$,�1 4 i �i�!,_--', , ,1, "Qlaol"v"T"", li'�'�, "".4 ,'4�C,.' �- .1��$t , �­v`lc­`V.-'�;N,--3 ­ , 'W , ,., �5 "t �', I—' I "" k � '. 414001W vg%w 1 *5,.. 1�. �N,_4X�4 '161: I V61114VV;r�--,k,,Y"�. �_ MW 4, ,", i_ffu ,J-j R5 - - , _�I. " r- r- --­�­1:"_"P.­,l,-,.�% -Q _�, . � � I .1." ­ , "" .�', ," - - , " , � , - � .: f,i�­ -I,,�!`,"�i',A�Qy#,;`,,,�. mi .1 ._ ­W�IqtUp. �4 �i , - �.,�l".,.,-"?",-4,:��,,,,-�,'�.t�,��,Q��f", W ,,�A -g ", -- ,j,� , . �­h"-I.........*-- �=' q v x W �IPIWNI v '" , , � - , _', , "" �P��_��1111" __�. 1:4 91 9 IV - , ;- '.�'� --�"!-,� ,1� ,��k�_ M I',,.� ,�;� i I t .� ­ '' , -__ 11,1-1.1.1 _­�_­ " -,-- -, , ��g,, � ?� , .j! ""' �,z,`I '�:-;,,' ,� nf,-'" ,,��Wkq, IM "'- ,i'17 llfl,iv 1,��-V1 i , ­' . �,-�,���,i��,!,,��,.:-�,,�.k���"f�, �1'1�15 �1,4!,%,�',,�r� �;-`­v-,!,�!�i.�-��� -, � r� ,�­" - I I " "'; , , � J 4" )�?-%;.'H-, , !V4 � & �'i.,:LN ���-"k­ ,�*, __,­,'��4 ON. � 1� -�'�i:��,,i�,��.�,;-����g""��,,�-,�",�7�,';',�,�,�,�i��--�"--,-�,-,�"":�..', ,-t,,,�-,;,�Z�11,��, -A ,g ,Wi _ 1� " _�,,,,, ", ,_ " "I li�i,_U*5'.1'4t 11'1�1 , ,��IP,i;,,--.-S.,N'? -��.�, � ,g- ,,!"., �, I I -­� � ,; W-1­.-Mv - -, - I W � ��, , ._ "�Iloi�. "', ­�­­ ., , ,�Z, , i" . , . ',',,,-' ­­­t1l.-."i.�11­�1�1; , ��.-.��, . '.. ',4,1',-'K1f`1111,T` . z .1, � .. � ­1�1. -, �, , 1-1- -'T, gn­",�,I,�*>-,�".,;p '-64, L�-,�'- ,f �,,�� -,T'x�-"':-_�2�­:: ', _� I � . v '. ,� I r�14`111Z`1. ;a,4�"l'ill-i-"".�--;xl,'�)�",Z"; uQuMumphlys"M", _>WnW4WAW-Wz_;,�_:j ,, 4_-__._=Q_- 'M .�N�- i�ANIA�v5!-.',,& "t i-,'i',��f,� I -�', "UH-AR ,�, .. . , ,- �� , i V, '411.1" MR, u M-11 A -" , -, , tit��"� , - ­7�_--�,!,�_,�,fv--­­ ,_ `�;­`­ ` . W.� , - _� IP-, ---?,j�, � ,�7t 1 MW--_-"-M-,4-y" I '­­,�,r- ��, ­`­��-f z.��v�,,-�,.�,��,-,-,,�,����,���i,�.,-�4,-T�.,�.,�,'�,�. ,,,-. ',�"r.- '4' - "'���-,!?�l�,.4,',,,',S�'�,'..�,.��,,,�r,-,�!.;".,�"',..�,,,� �4 , M -tt._1�,. ,; �. _W W , - � 4 - �3�=y - I .k - , I ­- .­,,'�"- -­ ','�4a!, , , ,vw%e " ,�! ,,, " M HEROIN , ,�O 1W,_MR_W0­- � -,-,,-- ,� ,� ,��,­-� :��'.Ce�,�� ,��"Lil.1,�l,-I,I,�C-��,�L-�N",�,t�"' '.,.''�., _ .- .- ,��,,";�,,'��,�� __�� , ' ' , � !I,-SIAM"-now­ 1W R mi"WITIMIRM ��� , ",� No , Q" ay �0 � ,',';`.-' -,'; -.,'� �r��p . I') ,'n, , � ��"'­11.�,­�,�',l.......Z,­�,��­ ,,.,V,�. .........i, ..,, ,,� ­ ­­,",­�,- , - 'C"M ��.!,� �.. .... ". ,���'�.�,;,."-I�-�;��i.-.'.�'�f.'f,"�i.,,'-'..�-��,��,-�t"t.k',,',.',�.','�"'e",��:,f�,-�.,,,. " , '�, ,41 11_�Yll , . pl_.­ ­,­ 1,� -',� W11 x ­­,,� , _ _'�,_, -gv n"Sn"J", I""' RQ _ q % ,, " Qj , , , _1111 .-- A ­`ffii�',' - A" �,.­­� 1� I A_E , .0 =6?� -"I oallml t��, .,, , ,,,,�, ., R,-- A '!' _ . , �r� ,� ��y�, �j,,- . ' _,�"ij'­' - -, " � -, . ." �, ,� ,t�, .r, Im I, _ -, ,!,�,�­�'­IVV,4z, "�- ,�,�1��,"`,���'.'I;�.�'��,,::','��'�' ��,,�-,-� 11,41, "' , _ ____ . -1 '-p 4 ,',�;,�­� ,, ,k, - ,, --J," �," � -6-,71,­�­­50�­- �-',""-�"l�,�.,�,�",".,��,,,',"7141.1.v ! , - -1 ,, - � ,i,�; "., '",;,'�Lo�."�-.."���-"."e,i-����,'� W,il ; ­�;,A'11�'��`. __ r�, -� v , � -.. n- "� �t'_ ,� . �­­--,111�,.'­­ ,­�,,�� , �� "','.,I -'�,_,,_`,r,;_ __ _"WQM%W��' ,B"I' ,,,�,'-,f�� _, ,� , - �;S . . _ . _-kX" 4. P,!.�& .1 _�_­IA1.1f.- . � l;i�-: !�, , , ,.tj,��,. % , � -, - ,,, ,��,��" �­ � "a ., - , r'­ i 41,,,r,"­,,A," '.Q., ��,�-,.,',��Ve,��-7,���,:,,,';,� , , .�, ,�,' _��W' z�^,,�, �1_ � __ SIN K ltw,�. ,;,:;,�'��­�,;­,- N, ..j ­�..�'y;!%,w�, -�. �", ,;,;�t',��,;��.�,�����t���.",-,,�--,.;�,-"-.-',_�--­, nt�,'---K�,4Y 4- ,v �, I g , �''. - �i,�'�' __ 11--v- _1"j-My_qWQq"Q9"QQN,,,,, _ ­ �I 1.;��:,-,-,p - M�--- 'i B ,�"-'_'.�,,'� .- - -A"."-",f - , .- �, �-, 14 44, ,14 ___"� ---, ­ 11 1.­ , " , 'j�' 0,��4 ­�!'At,i".- - , �.�."�011 ,� " , -�,_ . * , :�, V � , ., . z � - ,% , , _,i�_, - . , I A��`�,,­`�^'­­,�i,�A � . ;ki, , ,,r", t ,�,,�,,,���:����,�',�;;,��'k*,;��",-�,', -., , -�.�," ,�."..;",.�,-,��,-,�;,�i�"-;', "�4��i.,�,'�;:� ,.,�__­�­,, _;­', - , , _ , , ,1 .� �,, ;-;�,',r,'�,� .(�­4.1j�-1i'1­141� , � :�� .,�4" . A, -,- ". V.4� g,�rK"V-_'Vi"! ,�,�.�,,,�.�­�'. _j�� I qgg,zy -x ,�, , ��" --,�.,�;,��,-,',,f,­,Jl��,I,�,��-4__��<",,-­­'.L.�,., __.."-�`,,�,,,,,,.,,,,,"r-,,,,,,-,,�.','" ,,.�t.� � , -�­ I " "I ,�', -;�;".es,�-4, ,,; N z . . � , - X, ��4,'.� , - -P- 51r, rfyl - U. _,�' "vp " , s RMN �,, , �? _1�,�,._..,. �_ -"'.�',�' _'" ,� �, ,!� , �� , -%r,Y, , - .1 �o p�t�,,� _. A - ,� , � _,,.�,­­,­­1 , �`711J�4 1,t� , , , T . 'W , _V�%�_, `�,��Ir,�.,iX;�,,�,,�';',-,,'��"$".-,.,-, M,�­e�l _', .1;1�­'.­�1-_-�­­­" ,,� 1,,�- '-�"":;',,,34�,4��',,;,�;',,!,.�,,V��-��,,��,',',�-,,,�,,,,�,�,,�,,,.�,J�,, ­,-­­­­�� , -�" �Ix� ,�1.1�z-.��'I.:,�', , :" .IN , �', ,�..�" _I_ ,�,'W� �,.n&11,9�- ,�j,i�.,k ,�( , " .­,,­" _'�', �, --.-, L , " -, 4 '. . a 1�� -11�1;� 1�, , , , -i��7I� ,,1, - - , �._-,!-�-�,,,.­-­7,'�0�,"i,,�, ,, _�______-U1- -1 NMWz-M­_- ,, --__4 I'V-1,1", , �W �, � ,I—, ­:,��;,, ,�__.� �'I'�,",4� ;�,�.���4�;i,��,-,��,�;:,�,,t , ,,,, ,Y,- - . ;�,,�,?�,A��,�,,�-,::.,�,7,�, ,­,.��.......;­A�,,,k�-,�­--,,w,A, ,�,g , �__;j­,..t­4;,�, 11 � - h � ."""",-. �"I , �'����'�,,�-��,,'���.�,',-�:-.��'.',',,,'�,-����-,,�l�;,� --,"It? ,0" -,­��­;,j W� , .�',`:,."37"`�i4d ,;;:jtn��,,,�f"n ;�'I�_,, v .1 - - �.­­ ­­--,."-.." , ,; � -- ­,� ,vq, 11 I .1 a"0"--"A ppy ON Alk-1-1- ___AV To Qvs&`,N.,,�,,�R if,;,�,4.1,,�`,­' K� �,, Z-, -i,4,­�,-,­,_­6,�,,�-,", � -, `�"."-`, ­V`3_�",'f',i��'., �`4'§H� `,jM&"'"�'gW-'Iml,Y-r'' 51'�g -, Ms MW omocnq4ovNlrt,- M ," .�..'r,�;�;,,,,�<;�,., .-:'�'',`,,�L��t:- vi .", , k� I ," ., ,��1� '. , ,,"�-.1M.-,1*l�,_,�;,�211,',�'-.�-V,�,�,%, _.,'4��'�K,. ,-,�V, I NAM g �, "�:,�4,"', ,,,�Z, "...- , � � ,j , , t�� , _, , - �', I�MR M ,�, J;�,�A I, ­ ­� " �,i�,�".,,'�.;",�,���;-t�l-;�,� _1,� -_���44�'5',�'�' .1',, ,� "'v 'T - , , , - , , . 1,�;'1­,,,',WW , � . ,,0, ,­_', 'i, , � . _;02,.�­�. -�4"�� " R "-."1_-A,j'1 16 -rv: .J..'� ', 'i�,�"',�"i�,',,��,,I�'�5'4�,:�-.,F , t " ,3'' "r,,,'��.,!���n,-t-:�,�,,�,�,,�,,:.,��-,.',,, ,,,__�,�c' �� -.,�,�-� "l-,yn-�Y " 111� �:,% , , ,� , _1 .,�. ,��','�­,I�j'�, , , , " -�vt� ,� ���--, T,,`�� � -, , � t -,-,-� �q�j�,%�,,,­, $- , _ , - ,rt , 'rW,,q,Zgk W � ,_ � , � ." , '0."�,:t�,P, .��9�-,�',��,,-,`. . _ ,. __, - - . "-, - , - _Q.W�a ft"-- ,, �-�,.,­,.�­_':-,:,,�;jt4rj� f . �� _"-1-1111,11" . . , . . "#�,,, , , . ,,��� , .�.��, '__�1`- ., . � � , ,._: .� � , - A, " -,.., , ,u,441,?Y'�,�-, �i-,'�TPIZ� �AM v , ,- 1 -��,,�,;",!,.,�".",�����,!"",���',�.,-:-�,,,,-�""� "7'', � , �?, " -1- � � ­_­­ -­ , ll,jy",i�'%�'I�l * . 1_1'� -_ lt341? 'Aim. � _�. . I 1)­­ -I I-- � . , . � ­­;�..'-(�, , ,;. '. ", ", ,, '..",,# �"",i. ,­,_?�t ,,����"'-,,,-"-"-����,��,z�','�"-.,�""', _4l:`�",_ -11 'l ­"', "- - ,�v "", ,", � ,�_. t, 1- � I ,*A,&C�r %­,�L�-;-I­­ _q, ��!�, , � -A ;��;,;`-:'J;v�,_.,Z �. , 1=40 RWAI ,.-j�.-,,�7trN-�,',!,--"�-�"'-I—— �­ ,�',V, , 'I "�­7�g­.�-��,:­,,,- �! , - ')L ---',� ,,��)" .j ,"X, , ,, ,Ik�.9,,�,'�,,I�,;Pt,;�i���,;N;,jQ01' ,1-.-,: . �, �N! gwi'V� %` ", ,� ..�--A -,,g'i&�,Ee4e, 1`111.1�lfij ,,,,�,���, j,, `,`�,,-�,,,-,I":",�',�..�',�', I',- -."' ��-� , " � ,f g"� 0 , ,,� �,�� ", _. �,�,y�,.-!;; , - TIW--- -r7�, , , ffil .. . - 01191AIM? a-me /,�� - W_ , �i 1 ,��_, , I �,�,,,,,�,,�,�i��i,��,,�,,,i�,�.�,��,t:";� ,_ POM W ",�.qn "', �',g�,'�,K&,� 1� ,. 0,11 - T,�V_,F� " , - - -'-- ,��':j�7,��� '' "ki­".1,I,­�­-,,4 - -.��t',,,',,'t.,:,',,"�l�,4�t.��,"�",���,_".­,. ­,!­11_A11k1K1­_ � - ,,W I , ":-,,��,­�': ',"�i�;,,'_'�"'__r`,A,j-�,�t,,�,!.'?,,'�, "', , , - - � _F'P, ,,',jl vv�,_ ��wr%,,_",�!',­ , ,_ np W - ­­ , "5­'4,_:_�l, " , ,qV-,%-"4',­,,-,i�, , �,",�;�-"-,�'�7i�,��f,�,",--zr-,,i,- . ,- ,,2.Ng-&,,­ ",,�, .,r , ,". �,� � , , ­­�­ , L��. , ", , ,�, ,111,; ,�., , ,;, , -.,�,�--.,,�t!, ­ `-`-`1,--', - . '�,��'-�'S, ,�,j�:,�'j . 4 ,2_1 I I �m"4, % , '1`1�1�j 1;�,��,;,.,,!,,�;, ­ . - ," ",%­',­��,-,; .�v,�))�r _� -'IVe -,ti%;' 11 M1 ,,� ,,�- - ; ­.,�I' ­jlit -'P,'. -, ,,�' 8W*�, , - -R"-a��Z�,n, -Il W"�AvQ&Z"o 4',�.,�.4,�,,�,�',,-,,Z�!,�i,,,,,.-.�-, �`­ 8,7,"', ,�,J�.'�4.�,�,�Lj,k - . -v ,,&,�, I.1 �,%,g4r,,W',,�i � � ` ­ _",- , - - - . - I - , - , ,f W,_ ,-z--,, �,i_;_ - 'Ij,�.' 1�� , .7 � _ ."" 4p;, AXM - � No I 55 Wx :��,��e�g,'�",!."'�,� ,.,��,t�,,,�F�-:�'.,',,�,;--,t,���",�,;!,�� -" *,,";'­"..�.�4., ;��,t�� 10 ,_. I. -� , ,�l,,,,,,,-,gll�,�)��'�".-,Z,"�i,f�;,.,�;"",�4���,,���.",t�l;�-,,,��,,t�,-,,��'I'�-�,-�. �i�.��,,-.��"','��.'�'4-';','�,�, �, W� " � �,�..�.17;'",,�, ,� ,I�,,�,,":W,L"��4-��,;Iv­,) , ". ,�- , -ON , q.j, n ­���"I"Ar, ,-,-k4 MEN 11-N12 W�.� -. 'p-11-1, � ,�,,�� � I "I " ,-,. ,�� � :�:��Y� �,, ,"' ,_�P,7�'-','%,-r, . %,I,�.Fg ot �g . " � -1-1111 11-11,,. , � ., , , " , . 'X ,��- -­,'�'`111 �, `,,� - � � � � - _ ,n��,4�.,�j_'�`;,,I�*W, , , A.,7,A,��'�, Pw � "Ify , , .,_!V,4I`Z--',&"',' Y, - ` -,.- vsh 0,,-­�w-� iz" R., y, 6k%!] a, , ,,, , " , ,,'. , ,- " �, ,4 :� =% W-AN, A-1' ��,,;,-­� , ­ , --i" -WIt", .,,�X' - ��'� "I , � ,� qymym , � A � ", ""U, �flrllhlll MAU; %0�., Am%` . n Sm I !",N,-PW.,',.!,4,­ ` -,C.-,.%-, ­ mm� 1. i7l­'�,,`,'%-,'-,�,l�� N";` i ,-�VRP,,�I*A�-tf,,;�,., �41�,,z,1111i.11-1­4'7�& Z' - , .-k�," - g,gv�gz ,�- n-N W _ , ,,,, 4jiR c�""'p, ��.,�1--l-�;,�,,��',�'ll'i'�,�.,�t�,,��,-j":.--,��, . - ,�i-t��'i�..,���.,�t'�';'--,,I���,,,,r�,�F,�,�r-"��,,,;,�;.',,�,- "� ,;',.i,�, - ---f". , �, �! ­�`11 I - " 'R , , ` _ 'o- �180 , Aq, � ­­ - 'A ," W,6Y,�0 i�,., �, c,��'v ir, � I a 1-Wo. 4., , .,�'_:. -1, , , F . ,�W, MnMtn ON N "N' � - , 'i� " *j .." Zil, �T,Ir,w, " - - '4��n,;:5�,;;flf* t_, ,_'14 1,111 1, ­­­I,�,,­,_.­­,.*4*,W,, ,,,�",'��:,� ,, , -, - ,�113�!X I - 11 Z-7 . " -F11 � , ' ` " 1�1._ IT' , 'I ,0 M,* � 11 -_11101 1- �1� �t., IS?@ �, 6, " - ,;"� w',,­�, ��-A­X, " �, -,,,,,, _4�� � -W_ i,4�4 t�1'11�Awl It �_q)f,�,;, % ", � � 1'1;--_", , I-, 11 ':�'?..�4��­ M,01011 -'f, ,�­,,P-,,i�a..T5-?P­ �4�,�, ,� _. �� �� , � . - - , � Y' i� � , W"".-'�. , � _& - z ff " ,�.;�-.,.,:�."�,, � . , ,,�i - , -0,�,:,��,,'��,';'t�'��:,,',,��'i,i��,', "'�,, ,� 16111­11�1,_Iq I III .., ',��;­ �___ _�­., . , __M � , 1� Ir , ,� �`­ ,%,,AP­��,�".%,,, , ,'�,�T�i,�'�'*�',,'s-����l.���,, " W Ai� .sv!v,,,, -1 ,�,'Q",­',Z�W'��, ; 11--l-W11 I 11:4:15 , - 1,�6�N� L'i_,�421 , I Y?r� ----I'm ; � � , W ," "m - -11 1, , , -,­,_,__,� , , , .. ,g ;K1111�XI;.Y5 "" " , ...� ­ ,_ -11- ":'M - , ,�,�;Illar,41WPY.� ��,,�­, Rk "'!�.�,�,,',,--,',i;�'t,ti",��-,A,',,.,.4,�-,,�'4���o,,-,,��,��*",�-�-,�m-,"I 4 � _,­ ­­ , ,­ - - .­�� ,q,","W', 4 a A n ., , "gr'. , ,,�X'��.,� , . A "4 ?­­1f,,,N1 , ­ ­­,l­,';T't?,�, �,�L�,,��',"��"-i'f";",�:-",t x,--,"-,A1,,-6_� _­�"­' , . � �, . " ­j7r,­Y.­­­-,� .TL `�_"�,I"El II �,7�,�, �,�r%, " W ,-&.-tg,,�,-,,rV%,6 . , � - W ,A& . f'-,-��Y-,"'4, �,'�lv�jlr"� ,q.,­'It,',11.'. 11�>­ - 1-1 Y- _�� 1��­ ­-, ,, " NP.ft .- ,,V� , __ , ,­­­­ ,, ­�_U 'it -, ­.�'I'%Wxv:F_,,� -, - ', � mw�m 7j 'n .". -%',p,�.-:-;�,�� , - , .- -1�.IN k" _11 i " , .��­ �-,�"! ,�_;, , --, - ;`,, ,�,�`- , ,�, - � " _­;_'14�11,z)�t, �v_ 41 ""�, ­­� , A ga�,.p , -�,,�_!i.,- �It,,f�,,N',_ "g, a V", '0_1 .i, 4-, , ­ 4- - I 1 .."11T."'f't - " `Q6,', �,-471,,a3�� . .t.11111A1INft1',­orW.1 --�1,1111 " tvn,�(�; I 9 .� 1`2 --.,-�i,�g"N , '. , ,Wr,�`�-,,,�', , 7,t�',-`,-_,'�,',' , '� - �, I , . I - , � N*"f., 6,,,, .; t B..... .,..,, .. ... I IN, I, A i� ,,_,;,�, , , _­,�* i h R kl'i �71 1 � =_Wy omh �,,�­­x _,_", , _11,.Nl� A I� .,, *16" ."7,1". ��,�,,-.;,.,.".,�,-:�T",,,��,'��,,�mv.�'a- , 4­.,,�.rlr' �. � 11 'i� � " 11,;,�V"��, I d � .11, '�,����,,,��l',',��*,,-�.'��'.',�;,��l,-,�-,; 9, % v 'HaOX �- , � ,�, ­'' , � , , i� ,�W -, ,r 1 , , ­ Wf-mm­uAt" -'_;--.,,,v , ,�.',-i--l-I)O,l�.I.��:,�f,,;,;,,,,�,�,�,."�"Z�'� , I, -4 1, � , . .r, ,�_� ��, ­0.�­�- , " , _ n I ,�, ,, �U_`J� INI'� , " ,,, �,%;Nwn � ,;,,,"4.�� I 1 ,kg, �,,,jg� ,- , ­ �z�!'!�Z%p ,. ,,,� ki'�,.�7,;..,.����'r-4���-,,,,�,� -M'"" . �� - , - i , .�'� 11-4-VI 1�1'� , .I �N� ,�As, ,Xg� i� "" " 1 1 I .1 "I �,., ,,, "-,-fl ,f,r__,, I F . . " , - "'I"':�.4",g-,,,,,,��%.�y - vr'� 11 I ,2 , ,%� ,,, '. �.,/... i!',�,12 ..�_Ii - � '-`I, III�V ,,%X .W . .� , I -i&" � '111 ,R,'��.,�A' � , B vwd'§�(Ppt�, Rg., � *',,F-*1% Xt. �1447,h­­­,, . �', , A ,1,i� X I 1, � 4 , �el'_ M -1 ,, �11 i .,..r 6 ,�R, " .1 I ,� , - �, ,, - I -, _,AfO� _W"k, -k. �� - .1. "'n, n "' WM M ,� & I'll- �7, " ,g��"4�,_, __. 0,­� Wo., �' ­ I , PIP,, 1 I 41`� "11 I ;� 11..,,�� ��V� , W% M -n N Ir 11-Y- ��.�11 '40 'CoilPYN1*1t r,W" ,�, ".-���1_11­11_ , ., I I 11.1-1' , �I I , JiINS'_­I I "A' .�.P , ._';��"'Ilg� 4� 11:� -,'-�,-.',,��Wr%,� If ill, ."', �5. IN' -,;W-S , - ,�� , 1, - � .1 , , _� �I"��', _� P� 't ,,� � " - ,-,- .g 1 I�X��, �,,- I " - , , I ,_­­�5A,��,� . ,zz,� ­ ­­01 �11 , - . � ,­rM�,��', 4 - 1� ,�_- ;� .��l�,-',',k,,'�,�",�7;1,1��"KZ7 _� �, ,�,,,,,�,,I�1�,�� , . .. ,,�, ­ -IQ " 11- -� 11W � � , � .�r , .� _ , � q , ;� `� ; . - i 1-0-N , I ",. , , il, �'It.. � i . m , �� . ,a M"au r4,--, ,i , .1 ��!§',i� .,� , lf_;�'r W ;," _. T ,',&'i'_P�Q,!,� R-M,..��Al ��,, �,� , 2 , .�l , �, , , -'al"AM,-Zmav t . c�i4 �,� ,q N k�Z"',g,..;� 'A � p I I . . "' ;-i Vl�,�,,5,w,?-,t­ -�'�v,g,-16','­­'­-,_14 "�. N u , �� n I ","N' , �-`�,,�k,F -_..'.,l�,f, _ - �," I -r '! "',_111 -11 I , . "Vmj,T."".,�� NOR% , � ,'­�, " R ,� N�, ,­t,�'_ ,", -, -1 I-,. -_� ') - M, � I ' ' , -_ . ...�, "', :�� `v '4-�m�-A ""? f "_ , - -, �:� f, . , N I&I " low,. ,W N 'A CT N 1" pe rn w IP -, � ,�',,� I WMN&M 'I ,�-�:A.,,,�t�!,� , .11711, �fzr I'M .�;,,,,­�, . ,� ,� ��, A la - ,,p 7 "A :,"',"',�11_ l,jy<',,�Q,',j1,�-",iF..,,_ A , N 4� .*, I- ­­­­ ..I'M I .. MV-1,f-11,�51-I". ,W �"p � . A�-?� ,�� - ,-P_1'-0vW-,r1N.Pftz;,_1� i�., -W---,--, �M% ,"11i,- "; 7".�qw��,, ,-��_M,.',',�� �;, � , ­, -� " 1, � ki , _j��,,'�_r,�l ­1n,:,,A,,N1 , oEpyovv ',,'�p", t , " v , ­;iln�L',�'%t�.---�Z',4- .W'. I � = 1.7Z -W I �rF� .�, ,�O�, W,Qj q-40 5%-,X,�,, k --, ,,�MAI­Niqot �-.-�y:�,��7, � , - I- --Mg W- N ? -,0, ,� $; �JA4-Tr,," `1111-1 �1 k)st-- p,"n"ISM ­--------� � , . nt,_,x"g, _1 ,1.� BE R" - . 4 , % I � ­ ," -" , I'll, _.1.� ,�r7l _;�W�_I:tr, "I "MangN 'g r� -M-- -m­0W'A1 M-40., .1 11 � m ..'�,�-i-l-�"-t��i,���R�-�,,�*,���e", ,-�,M'V�RWW' ZAV Age _,�­ , � , � ". -TIA 3 �1, WW5A,,,.,-'-1 -,,,, I ,Aaw -- ,1, P, V-�,�­.......­�­,­,­ �. I . , �'. 4 . -- , 't -z-,,,�0r r..a,,- 1, - 1�,V�1�1;0,�,,7,;,�, ". 24 �."" �!-;gryv P a n��,�,R, ,111111 ....... "I --��"�.�.'�,"��,,"Z�l"-c�,,�� "Z,�g,,%&�py;_g,� Ox !W',"', � fg�%�v-,I ,� ��,- - ". I ,�,, FlWaa- ­ I 7, " ,� ,-, � � I --I X-0 1111-T 1, _ I X c � �il I M7%r4.,,' ,­.,�,�W�'�� _fik,'-,, ,,'-��,-,-�'r M 0, i 1� , , , I - c 'W -W , -'g�:,�� ,i I" , J �,�\t'­­­_ ___ _�, -4�W,�,"fNEWIN 0 -" m q -� % 01 11A. 1.11vr41n "W"'d,�2M Mom , , , ­ _, , 4� 'RW."I vZV�,6"; "X x '. , ,­ , '7§', g -N "I M I 0.,, -XW1 TWIRMA 1�,Zl V.;4,-;,,j4�"­­ I ,1:,�� , ,__ , _ - , - IN ,� ;�, 'IA,_i�4'. -.��,,!�";Ir,�;,,,­ ­�","Y'�_�,i,;, -­,,,J-�"'," , n R ,� � e,�': 1.� 1 -74 P1111 'M 10,0,N,�­!Z, �7 11, I - _ , , , g,-k,%. , �INVAR 'f �;',,..�&'�, , '":A­v­-j_A;K : WII,Lfl��N, �vpxg Y_,;��Pfi�,!, k� ,�-,­"-.,N­ aim I "�li,-,�,,',,�,-,_,,,���l',��-1-i�"L'�� - � u;g,�, , , ,!,� i%�4� , , , , , N I ­-j"'A""'?�*Z�1"., �, 'k � � �,,'��, � ,W­�J­t,��.,,V­�,`r �ff� �; . J,t�� .4 .� , 'N �2 ---I- llir,tl�"",__­.", ''r , �- �, 5 *W,W,�, �2 I .v.10,�, 'i, , , C.L."'.I I 1��.Ii;el�I­...3jw, !",,!,�-k,.t�'�,,,�,�k.q' , -1 , , � !1111, , , 1A M "i i " " �, 1- - �_ , , R, , , , 9 �I - , ­ ­ _­ �_ ,TVL,'g ,­'­ 1-1- , I ­11.�y-11-11.I � �. , , _-,­'­­, -1 . , 't�;­-�'. , _ , fj�,�.1,111:4 ­ , �, ,��;;,%11'�`�,Rplvq�,, ­ ­��,�­­ � , �il, .11 I , , -m- , -�,,,,,,�,-,,,1��,i- r-Y,','4,',':,'j"-,­,-, ',,,,'���,­R%7z-`_-',-�,,�'M">, '��',',-,��,',-­`" ,, 4 I 1�',,.1111 11.m,, ,- -%�,,,N--l--,,,"., ,,,�J,�k'.k 1�, ,M,,-�; _:_K1,111 I-;-��,,%V�',' Ff"gk, �, "��- ", ip"R ,,�i-,,,Ce',,t'�J,�,� Im , ,�4,�.,�,`,,­.� I � "k ,Q�?�,�,i�-'p,kis;.7"� � "f, ......�_W,rik��'; " , _�; � " . � �. -��N �,., �� , P, - .,,�f�' �r�,, t ,'',gl­ t4_ l,"-;�1,1��;,.,j�<-,,,,��"""-�;,/�'Z�17;,'j��,L,'.!;��'t"��.'.'"4r�t�.-, .� ;e'.. , , ,A,- �'-_`,, -�",-4!V"'�.4�Y,f.'-,,-,,,�,,,���g�V�,,I� 1, " I �K_,,;��,�,�., 1�� - -yugg g ,i�;�' k, - 1­�A­ ,-.,Q-_Kr,.,% --..p � __ I , ,, , , , - ­-�,-�W.;,�Tj,;"q _%,�,'j ; .r,,',,,!��, �X�,� !'1%4,1- ,­. . !� ,�r;,"',- 1­1.11111�� ." ,.- %­-- �-I�-�-"�,,�4 N � W.-I.- -.0-� - , ,�,,.�,��,��,, -,,, ";:,;��p ,," _3,'�'r ,;v , ­. -,'?F- _.'p," , P. , ,-, - "t 11, ,i �_.,�,_ ,i'�, H "� ,,,, .� �!,�� q, � 1��'�� ,;4 1 __�t.111�, �'­T '­; .;­ � , , 1 W 11 I., .� �. , �ii,.Q,! ..�!��,;";�:,-,9;7,'�­ --��­.­"".­�5��,�!,`" " " 0 ,cm ,,�,J,',u -.�,�.,-,,,�-,�;i�t.�,-',,"-Irr�.."�,-"�,-,,,e,� 1 , I q�­­,",­_qr­,, - ,,,�, I I .1 ", -aw--, , 'I'll' ,r� -­- ,--"""' W _ _' -11 i-...... _ _,""I— , ,i.1_1-.1.-, �xi,­ � � 0 U­��.;A ­,�,­_" ,'.�_':_��',�,"r,�`­��`_�' , , I �,*_,50,4 , %k!h ,Vj4.. WQQW-1WTWuM,A � , 4�z�,_tlyv-�� , . - , . � 1�,,''I F ,�i - �� ,."i� , __'­ ­.".""', , ­, ,,_,,�L��,j,\,�.', ­�,,- .A., ,� ,. - `��`­*Y_­,, - . _�� , , �rrrr , . , " ,, � � �1, ,t;�-�"""I���.7��,�,,,",,i.�,,�'.,�V,',,"t-I-,� I �� Xr,"k, -,-,M,K,q,.,i V!�;�,j�- . =AnWvWWMM, N ,'�,g, �,,�, �,�. W - , - - �� .;, , �,,, ­., ililr�1110 ""�i�-'��".'�l-i�olil�."-"k���I� -, � , _,:,;,A�, �11 it,,,�.,�; ,� , . %r 'I'll _f;� " � ksz,; 1,79,". , ,izo,a�, , , - .-�,,�;­­-­ ,�_­�,___, , ­ -'­ �, _,"iA ,, - , !�� _,%pn ,, ,,�",,,O,�','I�,�'r.�-,,�",,�.-,�,,,�;,,,,,�,g, 'I 1� �',��,',',�,,1,�" I f I __Dn., '. ", ,- -,,. ��jj - _ I -4,­�`,,;� , "�,,,r&,,,',,, 1;Ig 1� I", - ­!i"r�.,4,;ti�',�,���,,,�'4--,�,;��Ft;.-.- I Q, - MIN A 0 , �1�1,'­,'�,,, �1 , I � 11 1 M I , -��,,.,,-,.�?-�".,.���.'���-��,,�4��,-,.-z,���,_,.,�.,,­�.-­6,­.��,,�_?: �� 50f ."A" ,_._&_"-_1-1 1 14'"44'�-,"`V��',,�,*,�.� ., -, . ,, r,I 1-1111 37� vu ­I _. '�11'� � , , Z- � ­� ,� '���'�,-����?,���,)z"�,�t�,�'-'-,�-�;���-, ,��*��7-;.-":.,��y,- "" � .-::r--,-',. ,,'-.�,.;,1,o.:.-�,.-,-,,%� �� , � , � ---- �,, , ,�!',�,I�,',,.�, - __, , �_ -, - j, - ,���gfl,� , .- , 11 -ii --� � , , - - .r - - - - , --i:�,-,,"; �_.,_�, �' ­-�- r5,-,:�, --.-�,�'; - v . , �.""��,,,�%�,-,,e,4,,�,,,�,�P '!.',-�T;;�-�e,,",�'4,��",,!"';..-�". ',,-".''4zl�'I'l. ,�''11-��-",�� -�,,�,��7,��,,,�,!',��'�,�l:,i'��,.i'L4�:�,��.�", J,�_­q­,­­- _,j�� ,,�,� , 1� V I � i, _ _ , , - ,,',�,., -�`� �::, � 111'ell �, � ;,_l�"',', f.1 ��. * , I I -,i?-',, i�, - ­ ."..��,�;,r,­, , �0; N�,,�,`,':w�lr,-�, �. 4 '7.1�,_ _;, r , , - _ , , ?,Y;� - ;�­ , .. , � .4_�� � �,,�i�:�.�_�,;,�,�� ., , , , , ,�, _;,�,_� `,;,"l:�,�'_".",­ , ­ _,_.�3. ., v _5t§.��TI�j­,-�', ,���',,-,f,'.P�,'�,,l� ,,i,4XF� -4 I�'7 �A-,�, ­'," �:.-,-,��­�!­,-.,.,"_-� " , 'K,,,:'��,,,�,�. � ,�,� 4 'I 'j,,t,,, , ,, � ,�;kz i 1, ,n'4u�,#rj�­'� ,,, , _am 0 11-, � , A -.1 _,'_ -".. - r� '?, � - - -MR T-W-N-A-4, -A-__M_ -Ron�a,",- -- ',1�4t is yug� aguag 1 ,-:4�'t,--i�"t,-,,��--..'�,Z,.��n�,�,i,.Z , ,�,�­,,�.­,.­,�,-,:,­,�,,�­_"��ITQWIMY ra""�, ,� I Mw!?,g,�7"�t' SUAW. , ,, ;���,�;,,,��:.z.,-��l,'.,-�:"�',��:.�,"�,�,.:",��r:,-, _, ,-1.'­".-11�� ;.,. - - ,-3_6LA�,K� �, ;". �,eO?7 --- i� , , ,�.�_,�,_, , - �;_ _ ", , , , , , , , , , . ";, _. .l;,�, ��F,�, . � , � 2. _,�, ._!�,7; . ; , " _� 4'.�;",1� _ - " _;� ,,,.,,, n � N I � ,�­i)1, , , , WIft,4110 `I �',Az`�,,Q , a 11 ,� ,,,� 'i,;� - , w, , "�. - ­­ - , `;�'ti,.'4�.,�',,,,,��,i��,:,��-.',,��-t"���,���� '�:X�'�r'� � _"t�_W a� "'L,�,;,% ` �"g;!:�,!,, � W I �lj�--'k, ,;�,�­­­.........�4a.z�,­,,,­�:-,;`�'�'�`­­ ,1--._- ,- ,�- -!',-,,, ',�.'� """._., ,-- - , ��, ­.,�,:,�J;fv­'A- _� �_,�� W , ,�..,Z' I.:', �, . , . . , �,, . ," .., ,", 2- , , P4 , -:��,�,W_4�t't_,--,!:,��v,'��7,,-`l* ,',,* --g-jr � ,,,, -� _0� - ­.�,)� � ,p , � "I ,, - I I �, - - , '�,Z,',�_,�_ , - -1.� .�V­-,,_,'�- '�,­ ,_- - , ­�1, - �,k,?�W!g , pli. � gnNums -, _ �.A, _l 11,-v-,,�; ­-f- ",W�.-!t'�! " 1 S ,,�­ 1, ­.',­­'­­ ,-, - � I _,�,,­,%x", 1 1 - .�;,�J;"��. ,,,:-­�,',i��_!,,�,_", �­i �,-11,_ , �:T4,<,.;V��'jg ,�. , f,--___ ,, ", z4t', "���,7tll� , ,11 _�v11 I_�:11-�-1- "p- � -, -'11-1, i - -A, -W A � - , , , - A . . ,&Lz,���f��,���,,�,,-���,L�,�,�.z�-�%,i � ., " _e ""t.-t-,11-0 L'a'.14�,'A�Vv IV 1,,T.­�'­, , �� ­ �Kp-,-g­_, �� � -, , - ,�, ,.�W_j 1! _!,�,,�� 1 7 -�-� - , __' `;�, "i -"'Ok""",,.A,.-0 WX W, ��,V,,�� � , __ "��t SP-5 ^1 1, - 4, �', _F�;�.11 11�11�:1�11'.,,, 4�;'o',,�',�,�, , ,-­1.111­�, .1,,,�z'i,..,,`�!i-� - "" - - ". x 1�10. , I -,,,' -,�, ��-4,V,,,�, ,�_,_,_�.,­, li�1-7 _��,' ., N, - � , A- F-am __ , ­­­1;1' 2`11 11 ?", '�� ,�n';, , ­_ ­tj�,, ,-:-T,- , frp ti:,;M ,­�- K,i��I,F-',,��--Jf �If -vM"a�ikt P - % N ;�,�, -,��:,�.,��i��';, -, --e'.,;, ,-.-,-. __ , ,, 1`�,'�-11z'11'14,.!P­­A , " " �2 `�I - 11 & "' - - - , 5 "', "_ -, -,"I - - , `- - ,- ; ,J� ��, t"" ,-�Z4:1�,;��.-,., ,'�) , 71, - "?,"',1;�11�1 ,',�f,,I., i�� - I ,� , '14, _ �K���'" .,�, " �W- 11�,�A, I-_1 �" ­�,,,�,C,,, ­ - �&. ,, i "Zo ,� - �� " 4� k , "� ,r"",-,F�,-,;,�."j-�,��e,�.'����-.Z,','.,.��,�t, -,. _ " __. ---,-,T­--­­?,:"v� ,Ig'�'i I,' X"$­'�,,�M--Wgs � �-I.,�,,-.��.�,�,��,.��';:i--�,'-;,.,�,�,,-,,.-,���!'��.�-�Y,P�,'t�:-,,I�",;�..-�,�! ': �P:'�.� - . �_ x �',�,��,,�,��,�',7,`,'27�' , �� �, , - " 11 11 -i _ �. %, Cv'­�",� - 1 yg­ . ,� . "_"Y",,;"a 141,- .�'(2.� ,1'e�i, !�IXT .!� _­� � -4�_�i� 1i 111 p _-,- ., ­­ ,,,�.,-,,,,��','­'e�.r­j. 'N ij�,q�,- 4 ,,�!";----M- 1* � n M �,�_ � `� - � . j�,? ;,T'� I 11 - I , - - , , nm ,�� I I , shAsms No ��_ " .";,�j,��0,,��,*�­,, ,, " _ , ", , 16, v q �, A,I 2�gl �, 1�1 11-11,­"'A,4N .`I I -111, _;��1�11�.�� g g qMW--Nq- --;,,,�', , -4 _k "_,; , --Y-, - --m- -wy-f,4 ',* NP_;­��w,o- 'O ". I I �� _ ,- .�, - �- ",-.���",.-,�%-i,.--��;�,;�,�,,r , -4 N p,4", 4 1, 1� , , , , , , ',, ,,,,, _,r :' '��'-�',I'�i�X4�IC;';I�,".""��"'��-RW-M a � , g -g , �,i "'t ­�, �i,", 5 �i �i i - v u�=,'��;­,11�,'..11 ,_ , �i _!I� I"!, :: , ,� ", K. ,� ,..�%, '.)Z"',I ,�, 1--,,-111 i .,- - n� T-W"'!",, ';.��!�W�-,��l! - ,Z, " & -"-, _ llj�­��P­,'�r- � _j��,'�4_1, ­,-&r.-_-_1.1­,��, , , ;M!,Y,N.,'-�.j;:.��,jv,10 ­ - aVj�!�?'­-'. .. � _ , , . , ' - � � `;��!��,�z�-.,k,"�.,,111H�MVF"­ " ,,� 11 , _I� �"q,�,-N'1­j,.'�,1'W,;"j,',1 ,_,�j,,j'r _,.,r�., J�,J,, I ON - M1 , , _�� .. - ",4--�, '_ , " T'N'g- -.­�, ; Nmw"= ;;�J-��-,��,'tt,.-�� . ­`��,��' -i""-'!��;"i"�'��"'I.."-,,,I ,,r- , ,� ,f ,�"_ '." ", , IT Lpvr­r,07 ,� , ,4, - - `W,ffi",g0,`,i�q, -4 - ` m;, "7j , , 0f&&1 � ­. �- , _P:' _,­,­­, �,,-�.,,,��;,�:�, � `,� � 191,11" ,, 11h, , A_ �� �', " 11 4 , .* 1K a ",R� . I I ,�, ;"."­'­ ;,�"",�;'_,t.';'?.� �,�,�� -, - , �,� �f ��.`,',�,f;�Z , R � , ,-W--__ " W t', ,�,, V_073%­g,�, �­.­­�"A R N-l"." -j1­__l._. �.1111 I I I�_`-�,`,;,�I " �, , - I 'O I,,,,4 _� �� - I'll I I - - , I � ,`,", - . � � " , M It' 41:1*'� -1 , , r � r� A'i,t.'*,S.A��­.,%I�p . . __ � �i�'. . _ ,"e, 2��,Ml� I � I I,I- � -,,%�%'t,I,��;�,,',--, 1.�.�A­_A­t��f-�,--,-,,- "�_." r", I, � ,;,,­-,I�e�,_o ��,�_ir�IeA%,�311 -,fR�"f"lir-*-��'P,-tl"l�.1,�,�-,��� "'k,, W,�,, ly,. -=7W , -,-ni,4_.��R ? ; N &�,fk k�� ,.­���'�­�'��'�' 0 �� � ��t� � ,_ ,:T�: _ , i�1 -'I"a". . PA �, �, . ", Q, , � . , p . q , I ,, " �! '.�.� !� v,��'.,P � , M E ��, . - , �.�­,t_iR1__i­nk, , - "N"4��,�, �t � , �,*- .Rd., �0 Ww­�71­11 I. � _'­�,-_�;,�-� �,-,,'`,,� ,&.N,�,��,I�­,-.­:,Q_,�,,'�'i�'�� , _,,��, � I - - , �,.��% "-"W"-M�,­%W- ;­ .,-I,�, , , '­­?1'*,��.-,' �_ , , 11 - , �1! ,�'�:, _:k�_­ - ��, ,_ , I x _p, " I ,,� ,; .�'��,�r ,_� ,� ��.4�,nv-,.,'S��-,�, �,�,!, ATWX!""t.,v � _�,�. , -, y_. ____ ____ ., ," N � _1q..'t",�', .1 .,�­ , ?, I , , 11-1"I�7.1­.­111111' �� , "" .�",�'.'� F ,�;� ­i��,�-��,'-��':" ., ,1__,_-T�,�,111�­,Nll�� nv'­'��,-�'�,,�,Kj',g.�,-_­.��,�,�Z;, �,,�,,',�""7?".,,i"r,-�-�r,."�,,,�, -,-I W-11 -- -" w6-W--'.�t4;�I Sltl-`,�,'�`�Ie, - ��',�)'���--",��f',�,�,��-11�,�'i�,5�I_31 T-4,014. 0 4, *- ,. �, .,-�-,,­­�,�,"'�,��, �*p ", �13'!�,� Y��.A,y� ,kI, ,4v 9�,4 .��,,A- �, . � '.1 :��!, i j -, ,�. L? ,,i� ".��� ,�,_ , ,� - �4 , W 1 wm� : -P ­ , , " r 'I -1�,,�-l-A��,41;�a,�,'�-�(��,��i�-, 4;;4 !, : 11 '_� I : � ��, " . 1:_1111;I�� - - , i ­ : I � i- lt� ,,�,,� ,,� " 1 I ,t!� I I I - : I I I I 11� I- I "I '?,j;z.,.,",� �',' .11111'- I ­ R l,YBW�z, ii I'll I... . . . i�7't-,,�­',q vyg il"P.1: "I 1.� qm­j­ i . I �,,, " ... '�­ , '" ", . -�`t-, .1 I %1'. �.�­ , ", �",A��:4- -1. 1- i4 " "", is ,A., , ,� ;;I l�:`,_4-- .k,_ "! BW51 V x �� � b Glennon, Michel From: Atty. Albert P. Manzi III [attymanzi@manzilaw.net] Sent: Wednesday, July 08, 2009 11:12 AM To: Johnson, Adele Cc: Ellen Mcintyre; Glennon, Michel; Mark Bobrowski Subject: ZBA Special Counsel Adele- Can you please forward to me a copy of the Selectmen vote and signed engagement for Atty. Bobrowski. I have not yet received any documents and need to keep this matter on track. Please don't hesitate to call me if the need arises. Thank you, APM III, ZBA, Chairman Attorney Albert P. Manzi III 24 Main Street North Andover, Massachusetts 01845 Tel. 978-681-6618 Fax. 978-681-6628 website: www.manzilaw.net Confidentiality Notice: The information and/or documents hereby transmitted are privileged and contain confidential matters intended only for the party named above. Any other reading, dissemination, distribution or reproduction is prohibited. If you receive this email in error,please notify the sender immediately by telephone and reply email and fully delete the email received without making a copy of the email or any attachments. i MARK BOBROWSKI mark@bbmatlaw.com Blatman, Bobrowski & Mead, LLC New England School of Law 9 Damonmill Square, Suite 4A4 154 Stuart Street Concord, MA 01742 Boston, MA 02116 (978) 371-3930 (617) 422-7258 EDUCATION J.D.,New England School of Law, Boston, Massachusetts (1985) M.A., University of Oregon, Eugene, Oregon (1975) B.A., Ithaca College, Ithaca,New York(1973) PROFESSIONAL EXPERIENCE 1985 - Present: Partner and Principal, Law Practice, Concord, MA Blatman, Bobrowski & Mead, LLC was created in 2004. Practice focuses on land use and municipal law. Representative clients include the municipalities of Haverhill, Winchester, and Dedham. 1986 - Present: Professor of Law,New England School of Law, Boston, MA Courses include Land Use, Local Government, Property, and Administrative Law. 1981 - 1985: Executive Director, Rural New England, Inc., Wakefield, RI Headed nonprofit agency which used federal and Ford Foundation funds to assist more than 75 towns in six New England states with land use strategies for resource protection. Supervised all day to day operations and staff of five. 1978 - 1981: Executive Director, Rhode Island Projects for the Environment, Inc., Wakefield, RI Headed nonprofit agency which used federal, state, and foundation funding to assist rural towns and families with water quality issues. Supervised all day to day operations and staff of eight. PUBLICATIONS Handbook of Massachusetts Land Use and Planning Law; Aspen (2nd ed. 2002); supplemented annually. "Massachusetts Tries `Smart Growth': Evaluating Chapter 40R." (In progress) "Affordable Housing v. Open Space: A Proposal for Reconciliation," Boston College Environmental Affairs Law Review, (2003) "Reform of the Zoning Act," Suffolk Univ. L. Rev. (2001). "The Zoning Act's 'Person Aggrieved' Standard: From Barvenik to Marashlian," 18 Western New England L. Rev. 385 (1996). "Local Protection of the Scenic Landscape," 22 Boston College Environmental Affairs Law Review 697 (1995). "Planners and Lawyers: Toward a Division of Labor," The Urban Lawyer, (Summer 1990); also published in Land Use Law & Zoning Digest(March 1991). "Recent Developments in Community Growth Control," 73 Mass. Law Rev. 36 (1988). "Recent Supreme Court Decisions: First Lutheran and Beyond," Proceedings, Planning for the Changing New England Landscape,New England Center(1987). "Negotiated Ground Water Protection Strategies," Proceedings, Eastern Regional Ground Water Conference(1986). PROFESSIONAL ASSOCIATIONS AND HONORS Admitted to Practice in Massachusetts and Federal Courts Appointed to Governor Romney's 40B Task Force, 2003 Appointed to Governor Patrick's Land Use Reform Task Force, 2007 DESCRIPTION OF THE LAW FIRM Blatman, Bobrowski &Mead, LLC was formed in October of 2004. Bettye Ann Blatman concentrates her practice in real estate and trusts and estates. She is a 1997 graduate of Boston College Law School. Lisa Mead concentrates her practice in real estate,municipal and land use law. She is the former Mayor of Newburyport and the former Somerville City Solicitor. She is a 1987 graduate of the New England School of Law. Mark Bobrowski practices exclusively in the areas of land use and municipal law. Most of his clients are town governments and boards. Some of Mr. Bobrowski's past projects are summarized below: DRAFTING MUNICIPAL BY-LAWS AND ORDINANCES: Acton, MA (1995): Prepared outline of impact fee by-law for town in conjunction with Strategic Planning Grant from EOCD. Agawam, MA (1999): Completely recodified zoning ordinance. Alford, MA (2001-2002): Completely recodified zoning by-law. Adopted 2002. Andover, MA (2000-2001): Completely recodified zoning ordinance. Adopted 2001. Ashland, MA (2008): Preparing recodified zoning by-law. Adopted 2008. Becket, MA (2006-2007): Completely recodified zoning by-law. Adopted 2007. Bellingham, MA (1985): Prepared water resource district overlay district for groundwater protection and municipal by-law for hazardous substance storage. Adopted 1986. Bernardston, MA (1985-1988): Prepared complete revision of zoning by-laws and subdivision regulations, including cluster provisions, growth control devices, and resource protection overlays. Enacted in 1987 (zoning) and 1988 (subdivision). 1 Boxborough, MA (1991): Prepared complete recodification of zoning by-law. Adopted 1991. Brookline, MA (2001-2002): Served as consultant to prepare zoning revisions. Enacted 2002. Burlington, MA (2008): Preparing recodified zoning by-law. Carlisle, MA (1997): Prepared residential cluster by-law and subdivision regulations. Carver, MA (1997-1998): Prepared complete recodification of zoning by-law, amendments to subdivision regulations under the auspices of a Municipal Incentive Grant. Enacted 1998. Carver-Plymouth-Wareham Task Force (2000-2001): Represented three towns in negotiations with A.D. Makepeace Co. for by-law to develop 9,000 acres. Center for Rural Massachusetts, UMASS (1987-1990): Prepared model zoning by-laws and model subdivision regulations for dissemination to Massachusetts towns. Chelmsford, MA (1998): Prepared complete recodification of the zoning by-laws under Municipal Incentives Grant. Adopted 1998. Chelsea, MA (2000-2002): Completely recodified zoning ordinance. Adopted 2004 Clinton, MA(2000-2001): Completely recodified zoning by-law. Adopted 2001. Dartmouth, MA (1999-2004): Completely recodified zoning by-law and all general by-laws (ready for town meeting). Dedham, MA (2003-05): Recodification of zoning by-law. Adopted 2004. Review of Senior Campus By-law amendment for intergenerational campus. Adopted 2004. Deerfield, MA (1985-1999): Prepared revisions to zoning by-laws for water resource protection, agricultural preservation,village center development, commercial district, and growth control in two (2) separate Strategic Planning Grants from the Massachusetts EOCD. Prepared complete revision of subdivision regulations. Recodified zoning by-law. Enacted 1998. Dighton, MA(2000): Completely recodified zoning by-law. Enacted May 2000. Prepared new subdivision regulations for Planning Board. Enacted November 2000. Douglas, MA (2002-2003): Recodifying zoning by-laws. Adopted 2004. Dracut, MA (2002-2004): Prepared zoning amendments to promote affordable housing. Easton, MA (2007-2008): Prepared zoning amendments for two Chapter 40R smart growth districts. 2 Edgartown,MA(1988-1994): Prepared revisions to town's B-II Commercial District to promote maximum design review available under law. Enacted 1989. Preparing recodified zoning by- law. Egremont, MA(2003): Recodified zoning by-laws. Fitchburg, MA(2000-2001): Completely recodified zoning ordinance. Adopted 2001. Framingham, MA (1996-2000): Prepared revisions to the town's special permit, site plan review, and parking by-laws, and revised subdivision regulations. Enacted 1996. Franklin, MA (1995-1999): Part of the interdisciplinary team that drafted comprehensive impact fee ordinance for fastest growing city in the Commonwealth. Prepared growth management by- laws and moratorium. Special town counsel for zoning matters. Gloucester, MA (2002-2003): Prepared nonzoning and zoning ordinances for West Gloucester sewer expansion project. Adopted 2003. Groton, MA(1990-2005): Served as counsel to the Planning Board to prepare zoning amendments resulting from Master Plan update. Adopted 1991. Serve as Planning Board consultant on zoning amendments. Hanson, MA (1988): Prepared site plan review, commercial and industrial special permit provisions, and resource overlay districts under Strategic Planning Grant from EOCD. Enacted 1990. Harvard, MA (1994-1997): Prepared draft by-laws for the (Fort) Devens Regional Enterprise Zone, for enactment by the Massachusetts Land Bank, the Devens Commission, and the three underlying towns of Harvard, Ayer, and Shirley. Reviewed proposed Devens performance standards for joint Boards of Selectmen of Harvard, Shirley and Ayer. Reviewed Harvard's by- law provisions for exempt uses and proposed changes. Haverhill, MA (2001-2005): Revised inclusionary zoning ordinance and developed deed restrictions for affordable housing. Preparing Downtown District and River Corridor District. Hingham, MA (2007-2008): Prepared zoning amendments for Chapter 40R smart growth district. Holbrook, MA (2004): Advised Planning Board with regard to Rail Transit Overlay District proposed for Town Meeting action. Enacted 2004. Holyoke, MA(1999-2001): Completely recodified zoning ordinance and subdivision regulations. Adopted 2001. 3 Ipswich, MA (1999-2002): Conducted partial recodification of zoning by-law (enacted 2000); drafted Great Neck zoning changes. Lee, MA (2005): Completely recodified zoning by-law. Reviewed adult business amendments. Lenox, MA (2007-2008): Prepared recodified zoning by-law. Adopted 2008. Leverett, MA (1985-1999): Prepared complete revision of subdivision regulations (enacted 1988) and complete revision of zoning by-laws including site plan review, driveway standards, aesthetic resource protection, and flexible development. Enacted 1991. Lincoln, MA (1995-1997): Prepared changes to town's zoning by-laws for exempt educational and religious uses and wireless communications facilities, and drafted general by-law for highway access permits. Enacted 1995. Lowell, MA (2002-2003): Prepared revisions to the city's zoning ordinance. Adopted 2003. Mansfield, MA (1993-2002): Prepared zoning revisions under the auspices of Strategic Planning Grant to address concerns in the Great Woods Study Area. Prepared recodified by-law. Adopted 2003. Marion, MA (1996-2003): Prepared revisions to the zoning by-law's business and commercial, residential development, and growth management by-laws. Prepared revisions to the subdivision regulations..Trained Planning Board on all aspects of special permits, variances, and subdivision control. Medfield, MA (1997-1998): Prepared complete recodification of the zoning by-law and subdivision regulations. Mendon, MA (1996-1997): Prepared zoning changes in accordance with town's growth management plans; recodified zoning by-laws. Methuen, MA (1997): Prepared recommendations to guide city's growth management policies and reviewed zoning ordinance under the auspices of a Municipal Incentive Grant. Metropolitan Area Planning Council (MAPC)(2000): Prepared model cluster zoning by-law for dissemination to one hundred towns. Middleton, MA (2007-2008): Preparing recodified zoning by-law. Monson, MA (2002): Prepared zoning changes in conjunction with Master Plan by Daylor Engineering. Newbury and Newburyport, MA (2000-2001): Prepared zoning amendments for Plum Island to limit growth during water/sewer expansion. Adopted 2001. 4 New Bedford, MA (1999): Completely recodified zoning ordinance. Adopted 2004. North Reading, MA (1985-1989): Prepared aquifer protection overlay district, site plan review, congregate elderly housing, accessory apartment, and commercial growth by-laws. Enacted in part 1987 and 1988. Northbridge, MA (1995): Strategic Planning Grant to prepare residential, commercial, industrial, and water resource protection amendments to the zoning by-law. Norwell, MA (1999-2001): Prepared Village Housing District to implement Modern Continental's 45 unit senior housing cluster project. Enacted 1999. Revised subdivision regulations. Adopted 2001. Oak Bluffs, MA (2002-2004): Complete revision of the town's zoning by-laws Adopted 2004. Orange, MA (1985): Prepared a complete revision of the town's zoning by-laws. Enacted 1985. Otis, MA (2006-2000): Complete revision of the town's zoning by-laws. In progress Pawcatuck Valley, RI (1999): Under auspices of state grant, designed model ordinances for Rhode Island communities to promote resource protection, economic development, and residential alternatives. Peabody, MA (2003): Prepared substantial revisions to zoning ordinance. Enacted 2004. Pepperell, MA (2000-2001): Completely recodified zoning by-law. Adopted 2001. Petersham, MA (2004-05): Completely recodified zoning by-law. Pittsfield, MA (2005): Completely recodified zoning ordinance. Reviewed adult business amendments. Quincy, MA (2001-2005): Completely recodified zoning ordinance. Ready for action. Raynham, MA (1999-2000): Prepared zoning changes in conjunction with Master Plan by Koff &Associates. Revised subdivision regulations. Revere, MA (1995-1996): Strategic Planning Grant to prepare revisions to the city's general business, neighborhood business, and industrial districts. Salem, MA (2000-2008): Completely recodified zoning ordinance (ready for City Council action); prepared waterfront overlay district; preparing second version recodified ordinance. Sandwich, MA (1996): Municipal Incentive Grant to promote economic development in town's 5 industrial district by revising local regulations. Scituate, MA (2002): Recodification of subdivision regulations. Adopted 2002. Sheffield, MA (2005): Completely recodified zoning by-law. Somerville, MA (2002-2003): Prepared ordinance to replace Assembly Square IPOD. South Kingstown, RI (1997-1999): Prepared subdivision and zoning regulations to promote open space residential development and affordable housing. Southwick, MA (1996): Reviewed proposed growth management by-law and drafted revised version. Sterling, MA(1998): Completely recodified zoning by-laws and subdivision regulations. Enacted April 1999. Sudbury, MA (1999-2001): Completely recodified zoning by-laws. Adopted 2001. Swampscott, MA(1999): Completely recodified zoning by-laws. Enacted May 2000. Swansea, MA (2002-2003): Prepared zoning changes in conjunction with Master Plan by Koff& Associates. Recodification of zoning by-law (in progress). Templeton, MA (1996-2002): Municipal Incentive Grant to train the Planning Board in all aspects of the Subdivision Control Law, draft new regulations,prepare modules for dissemination to other towns. Prepared partial recodification of zoning by-law (enacted 2002). Tewksbury, MA (1999-2001): Completely recodified zoning by-law. Enacted 2002. Prepared Shopping Center District for 1.2 million square foot mall. Adopted 2004. Upton, MA (2006): Completely recodified zoning by-law. Enacted 2007. Uxbridge, MA (2008): Preparing recodified zoning by-law and changes for Chapter 43D. Wayland, MA (1987-2005): Prepared Incentive Zoning By-Law to promote inclusionary housing in major residential projects. Enacted in part 1989. Prepared site plan review regulations for Planning Board (1994), and reviewed new subdivision regulations (1996). Prepared wireless communications, interim planning overlay district and mixed use residential by-laws to implement Paine Estate project. Prepared Town Center District zoning amendment. Webster, MA (1991-2001): Assisted in zoning recodification by regional planning agency. Special town counsel for Planning Board and Board of Appeals. Wenham, MA (2007-2008): Prepared recodified zoning by-law. Adopted 2009. 6 West Bridgewater, MA (2001): With Koff&Associates,prepared Master Plan. Westford, MA (1995-2004): Reviewed growth management by-law instituting building permit cap and subdivision phasing. Prepared revisions to aquifer protection, townhouse,hazardous materials,mill conversion, assisted living, and site plan review by-laws. Special town counsel for planning board and water department. Prepared recodified zoning by-law. Adopted 2001. Prepared performance standards for major development projects. Adopted 2004. Westwood, MA (2002-2004): Completely recodified zoning by-law. Adopted 2004. Whately, MA (1988): Provided legal review for complete revision on zoning by-laws under Strategic Planning Grant from EOCD. Enacted 1988. Winchester, MA(2006-2008): Completely recodified zoning by-law. Adopted 2009. Drafted several overlay districts for various projects. Worcester, MA (2007-2008): Prepared Chapter 43D zoning amendments. DRAFTING CHAPTER 40R SMART GROWTH BY-LAWS AND ORDINANCES: The firm has represented both municipalities and private clients in all aspects of the preparation of Chapter 40R Smart Growth Districts to promote affordable housing and "smart growth": Dartmouth, MA (2006): Lincoln Park Smart Growth Overlay District. Enacted 2006. Represented Town. Gardner, MA (2007): Wachusetts Smart Growth Overlay District. In progress. Represented City. Grafton, MA (2006): Fisherville Smart Growth Overlay District. Enacted 2006. Represented Fisherville Redevelopment Corp. Haverhill, MA (2006): Downtown Smart Growth Overlay District. Enacted 2006. Represented City. Lunenburg, MA (2006): Tri-Town Smart Growth District. Enacted 2006. Represented Mass. Housing Opportunities Corp. Northampton, MA (2007): Sustainable Growth District. In progress. Represented MassDevelopment. Norwood, MA (2006): St. George Avenue Smart Growth Overlay District. Enacted 2006. Presented Karsten Company of Weymouth. 7 LEGAL ASSISTANCE TO LOCAL BOARDS: The firm serves as Special Town Counsel to land use boards to (1) assist in the review of permit applications and subdivision plan submittals, (2) prepare written decisions under the direction of the Board, and(3) represent Towns, if necessary, in appeals before the courts. The firm has successfully handled the following matters on behalf of governmental clients: * Special Town Counsel or City Solicitor for Land Use Issues - Including appeals of special permit, variance, and other administrative decisions. (Chelsea, Holyoke, Spencer, Rochester, Dighton, Deerfield, Westford, Bernardston, Franklin, Dartmouth, Mansfield, Sterling, Berkley, Framingham, West Tisbury,Norfolk, Belmont, Canton, Clinton, Methuen). * Section 1983 of the Civil Rights Act- Defense of Town of Ipswich in Federal District Court. * Comprehensive Permit Review - with a team of interdisciplinary professionals, including civil engineer, traffic engineer, wetlands specialist, landscape architect, and others as required,review comprehensive permit application as legal counsel to the Board of Appeals or as a consultant under the Massachusetts Housing Partnership Fund Program* in the following cities and towns: Taunton Tewksbury Dartmouth Oak Bluffs Merrimac* Deerfield Canton Charlton* Amesbury* Tyngsborough Brewster* Marshfield* Brookline* Marion* Danvers* West Tisbury. Billerica* Chelmsford* Palmer* Wilbraham* Hanover Cohasset Haverhill* Newburyport Revere Dracut* Scituate* Lancaster Sturbridge* Harvard* Groton Sterling Groveland* Westford* Templeton Methuen Holliston Hopedale* West Newbury* * Representation of Essex County- Special Counsel in County Charter dispute. * Representation of Carver-Plymouth-Wareham Task Force -Negotiations with A.D. Makepeace Company in the development of 9,000 acres in the three towns. 8 LEGAL COUNSEL TO HOUSING AUTHORITIES: The firm has served as general legal counsel to three housing authorities, covering all aspects of day to day operations and special projects: Concord Housing Authority(1997-2003): Obtained comprehensive permits for various dwelling units. Dukes County Regional Housing Authority(1985-95): Prepared format for successful Resident Homesite Program in which Martha's Vineyard towns provide low income families with discount building lots. Prepared grant applications to EOCD and HUD. Prepared Memoranda of Agreement with five island towns under Strategic Planning Grant from EOCD. Legal counsel for comprehensive permit projects in two island towns. Wayland Housing Authority(1987-1996): Prepared accessory apartment by-law with incentives for agreement with Authority to rent to low-income families. Provided day to day legal counsel in all matters of Authority business, from evictions to government contracts. Coordinated successful comprehensive permit applications (1991). REPRESENTATION OF PRIVATE CLIENTS: The firm has represented responsible development clients and abutters in a host of communities, including these examples: Massachusetts Housing Opportunities Corp.: Development of 204 unit Chapter 40R smart growth apartment complex in Lunenburg, MA. A.W. Perry, Inc.: Development of several residential subdivisions on the South Shore. Guilford Rail: Development of auto storage facility in Ayer. In addition, the firm has served as legal counsel to the following land use consulting, planning, or legal firms: Taintor&Associates,Newburyport, MA LandUse, Inc., Hadley, MA Mullin Associates, Inc., Pelham, MA Van Orman &Associates, Easton, MA Koff&Associates, Brookline, MA Herr&Associates,Newton Corner, MA 9 Island Planning&Management, Edgartown, MA Mills, Teague&Patten, Boston, MA Applied Economic Research, Inc., Laconia,NH Dodson Associates, Ashfield, MA Edwards &Angell, Boston, MA Haydu & Lind, Wellesley, MA Daylor Consulting Group, Braintree, MA Specific questions regarding the services provided by the firm, or requests for references, should be directed to the address above. 10 Fm:Peter Morin To:Albert Manzi(19786889542) 16:05 07130109G MT-04 P9 01-03 To: Albert Manzi From: Peter Morin Fax: 19786889542 Pages: 3 Re: Fennessey Appeal Date: Jul 30,2009 X Urgent For Review Please Please Reply For Comment Information s Comments: Please include the attached letter in the record of the above appeal. Thank you. Fm:Peter Morin To:Albert Manzi(19786889542) 16:05 07130109GMT-04 Pg 02-03 PETER B. MORIN, ESQ. OF COUNSEL, MCDERMOTT QUILTY& MILLER LLP 131 OLIVER STREET 51h FLOOR BOSTON, MA 02110 781-985-0789 tel. 866-380-6570 fax PMORIN(a,MQMLLP.COM July 27,2009 Albert P.Manzi, III, Esquire Zoning Board of Appeals Town of North Andover 1600 Osgood Street North Andover, MA 01845 Re: Appeal of Lizetta Fennessey 70 Elm Street, North Andover Application of 600' Setback Dear Mr.Manzi: There is one additional matter I would like to mention prior to the continued hearing next week. Toward the end of the June 18th public hearing on the appeal,Ms. McIntyre made a factual assertion that I wish to insure Mr. Bobrowski is aware of.According to my recollection, Ms. McIntyre stated that she was a member of the bylaw committee that drafted the 600' setback provision, and that the purpose of the 600' setback was"Boston Hill." Boston Hill is an area that is both uniquely secluded from residential areas and attractive to wireless use because of its height.It is logical to conclude that it would be a preferable area for zoning of free-standing cell towers, and in fact,that is what has occurred. However, the assertion that the purpose of the 600' setback was`Boston Hill" also suggests that the purpose was to contain all wireless facilities(or at least, as many as possible)to one location in the town. That the location happens to be secluded from any residences might suggest that the purpose for doing to was aesthetic, which makes fine sense if the facility is a free-standing tower. It makes no sense whatsoever to argue that the aesthetics concern is furthered by the 600' setback when it is applied to an internal church steeple installation. I would encourage Mr. Bobrowski to examine the historical context of how this interest in Boston Hill arose, and what the purpose was in focusing on it. r also encourage him to examine the legality of adopting a zoning scheme whose purpose is to seclude all wireless facilities to a single parcel of land. Fin:Peter Morin To:Albert Manzi(1 9786889542) 16:05 07130109GMT-04 P9 0"3 Mr. Albert P. Manzi, III, Esquire July 30, 2009 Page 2 Finally, since the intent of the setback provision seems to be such a critical issue, and since Ms. McIntyre was a member of the bylaw committee with personal knowledge of the facts, it might be helpful to ask her to elaborate on her statement during the upcoming hearing on the 11t'. Thank you for your attention. Very truly yours, /S/ Peter B.Morin cc: Mark Bobrowski, Esq.(w/encl.) Thomas J.Urbelis, Esq.(w/o encl.) ZBA 6 2 1 -- Date. ..... .`.��.� �NORTh� TOWN OF NORTH ANDOVER 9 RECEIPT ��SSgcHu�s�y This certifies that !..`, . ....r .`.. . Jf. has Paid ..1.4�•��.. ....G d ... .,�. ....��(J ).��-'�1G • •• ,_t.od? for..Pig;X 5.. :.. /..k.1?t!f't!....... ..,�.y+.4l.. �1 Town of North Andover ZONING BOARD OF APPEALS RECEIVED Albert P.Manzi III,Es Chairman r'1 URCE Ellen P.McIntyre,Vice-Chairman Richard J.Byers,Esq.Clerk pE Np DTM qti Joseph D.LaGrasse 3? e��., `'e �� 1009 JUS -2 � � 9: 38 Richard M.Vaillancourt 0 Associate Members 4p} f 0 1i1(`s Uf Thomas D.Ippolito % J*�` UH A�"Drbv Daniel S.Braese,Esq. �i9`'e,T.o a��q`� MASSACH)-,. SS )-,.TI'S Michael P.Liporto SSAGNtI`'� Town Clerk Time Stamp Legal Notice North Andover, Board of Appeals Notice is hereby given that the North Andover Zoning Board of Appeals will hold a public hearing in the High School Lecture Hall, 430 Osgood Street,North Andover, MA on Thursday the 18th of June, 2009 at 7:30 PM to all parties interested in the application of Lizetta M. Fennessy, 77 Elm Street, for premises at: Trinitarian Congregational Church, 70 Elm Street (Map 42, Parcel 2), North Andover, MA requesting a Finding as a Party Aggrieved of the Inspector of Buildings under Section 8.9.3(c)(v) of the Zoning Bylaw as.petitioner seeks to reverse and vacate Building Permit #628 granted on 5/18/09 on the basis that no Variance was granted for the 600 foot setback. Said premise affected is property with frontage on the Northwest side of Elm Street within the R-4 zoning district. Plans are available for review at the office of the Board of Appeals office, 1600 Osgood Street, Building 20, Suite 2-36,North Andover, MA 01845 Monday through Friday during the hours of 8:30AM to 4:30PM. By order of the Board of Appeals Albert P. Manzi III, Esq., Chairman Published in the Eagle-Tribune on June 3 & 10, 2009. rLegalnotice 2009-009. M42P2. 1600 Osgood St.,Bldg 20-Suite 2-36,North Andover,MA 01845 Phone-978-688-9541 Fax-978-688-9542 Web-,www.townofnorthandover.com 10 COMMONWEALTH OF MASSACHUSETTS TRIAL COURT SUPERIOR COURT DEPARTMENT ESSEX,ss. Civil Action No. MARTHEA FOURNIER,LIZETTA FENNESSY,AARON PERTUS, DAGMAR SCHNELLINGER,and LAURETTA E.WENTWORTH, Plaintiffs, V. ' ♦ JOHN SIMONS,JENNIFER BORAX-KUSEK, TIMOTHY SEIBERT, RICHARD ROWEN, MICHAEL WALSH, COURTNEY E. LAVOLPICELO, as they are members of the Planning Board of the Town of North Andover,Massachusetts, TRINITARIAN CONGREGATIONAL CHURCH OF NORTH ANDOVER,and METROPCS MASSACHUSETTS, LLC, Defendants. COMPLAINT 1. Plaintiff Marthea Fournier resides at 257 Main Street, North Andover, MA 01845. 2. Plaintiff Lizetta Fennessy resides at 77 Elm Street, North Andover, MA 01845. 3. Plaintiff Aaron Pertus resides at 62 Elm Street,North Andover, MA 01845. 4. Plaintiff Dagmar Schnellinger resides at 83 Elm Street, North Andover, MA 01845. 5. Plaintiff Lauretta E. Wentworth resides at 15 Pleasant Street, North Andover,MA 01845. 6. Plaintiffs Fennessy, Pertus, and Schnellinger are parties in interest as defined in G.L.. c. 40A, § 1 I and all plaintiffs are aggrieved by the Decision of the Planning Board of the Town of North Andover , as defined in G.L. c. 40A, § 17, with respect to . giTHE—: c ?! : � 1; r {�. �•(��{R'1 7R THF (3,"`i TV ESc,EA- Nil XN, 2 r f;: 7. Defendant John Simons resides at 25 Ironwood Road, North Andover, MA 01845. He is the Chairman and a member of the Planning Board of the Town of North Andover, Essex County, Massachusetts. 8. Defendant Jennifer Borax-Kusek resides at 95 Olympic Lane, North Andover, MA 01845. She is the Clerk and a member of the Planning Board of the Town of'North Andover, Essex County, Massachusetts. 9. Defendant Timothy Seibert resides at 65 Elm Street, North Andover, MA 01845. He is a member of the Planning Board of the Town of North Andover,Essex County, Massachusetts. 10. Defendant Richard Rowen resides at 102 Bear Hill Road, North Andover, MA 01845. He is a member of the Planning Board of the Town of North Andover, Essex County, Massachusetts. 11. Defendant Michael Walsh resides at 344 Raleigh Tavern Lane, North Andover, MA 01845. He is a member of the Planning Board of the Town of North Andover,Essex County, Massachusetts. 12. Defendant Courtney E. LaVolpicelo resides at 20 Ferncroft Circle, North Andover, MA 01845. She is an alternate member of the Planning Board of the Town of North Andover, Essex County, Massachusetts. 13. Defendant MetroPCS Massachusetts, LLC ("MetroPCS"), is a Delaware limited liability company with offices at 285 Billerica Road, Chelmsford, Massachusetts 01824. . 14. Defendant Trinitarian Congregational Church of North Andover ("Trinitarian Congregational Church") has its offices at 72 Elm Street in the Town of North Andover, Essex 2 County, Massachusetts. Trinitarian Congregational Church is a congregation of the United Church of Christ. 15. On an application for a Wireless Special Permit submitted on October 30, 2008 by MetroPCS ("the Application") and later by Trinitarian Congregational Church, the Planning Board of the Town of North Andover, approved a Wireless Special Permit for the property located at 70 Elm Street, Essex County, Massachusetts ("the locus") in a decision filed with the North Andover Town Clerk on March 5, 2009 ("the Decision"). The locus is in a single ` residence zoning district (denominated "R 4"). The plaintiffs' homes are also located in the same R 4 single family zoning district. 16. The Planning Board members participating in the hearing and Decision on the Application were defendants Simons, Borax, Rowen, and Walsh. 17. According to the Decision, the Planning Board approved a Wireless Special Permit for the installation of a Wireless Facility on an existing structure" [emphasis added]. 18. According to the Decision,the Planning Board approved a Wireless Special Permit to co-locate and operate the Wireless Facility, which consists of 6 panel antennas located in the church steeple and associated equipment cabinets, located in the basement of the Trinitarian Congregational Church building." 19. The Decision contains no indication of what the Planning Board meant by "co- locate." 20. The definitions section of the North Andover wireless service facilities bylaw (Section 8.9.2 (f) ) defines "Co-location" as "The use of a single mount on the ground by more than one carrier (vertical co-location) and/or several mounts on a preexistent building by more than one carrier. 3 21. The Decision purports to grant a Wireless Special Permit under Section 8.9 of the Zoning Bylaw of the Town of North Andover. 22. Section 8.9.3(v)(1) of the Zoning Bylaw of the Town of North Andover provides: v)Setbacks All wireless service facilities and their equipment shelters shall comply with the building setback provisions of the zoning district in which the facility is located. In addition, the, following setbacks shall be observed. (1) In order to ensure public safety, the minimum distance from the base of any ground-mounted wireless service f4cility to any property line, shall be 2x the height of the facility/mount, including any antennas or other appurtenances. This'set back is considered the "fall zone". A minimum setback of 600 feet shall be required for all wireless devices, antenna and their mounting structures, whether attached to a new or existing structure, as measured from the adjacent property line of properties which are either zoned for, or contain,residential and or educational uses of any ypes [emphasis added] . 23. Section 8.9.3(v)(2) of the Zoning Bylaw of the Town of North Andover provides: (2) In the event that a preexistent structure is proposed as a mount for a wireless service facility, the setback provisions of the zoning district shall apply. In the case of the preexistent non-conforming structures, wireless service facilities and their equipment shelters shall not increase any non-conformity [emphasis added]. 24. The definitions section of the North Andover wireless services facilities bylaw (Section 8.9.2 (q) defines "Mount" in relevant part as "The structure or surface upon which antennas are mounted, including the following four types of mounts: . . . (4) Structure-mounted: Mounted on a structure other than a building [emphasis added] . . . . 25. The original drafters of Section 8.9 filed the following memorandum with the Planning Board during the public hearing on the Application: 26 January 2009 To the Planning Board: We, the undersigned, are the members of the Telecommunications Subcommittee that was appointed in 2000 to study the use and placement of wireless devices within the Town of North Andover, and to modify the bylaw as appropriate based 4 on the results of our study. Our Subcommittee was approved unanimously by the Board of Selectmen at the August 21, 2000 Board of Selectmen meeting. Our work culminated in the amendment of the Zoning Bylaw at the December 11, 2000 Special Town Meeting. The provisions for setbacks in Section 8.9 of the bylaw were amended at the meeting to read as follows: v) Setbacks All wireless service facilities and their equipment shelters shall comply with the building setback provisions of the zoning district in which the facility is located. In addition, the following setbacks shall be observed. (1) In order to ensure public safety, the minimum distance from the base of any ground-mounted wireless service facility to any property line, shall be 2x the height of the facility/mount, including any antennas or other appurtenances. This set back is considered the "fall zone". A minimuni setback of 600 feet shall be required for all wireless devices, antenna and their mounting structures, whether attached to a new or existing structure, as measured from the adjacent property line of properties which are either zoned for, or contain, residential and or educational uses of any types. (2}In the event that a preexistent structure is proposed as a mount for a wireless service facility, the setback provisions of the zoning district shall apply. In the case of the preexistent non-conforming structures, wireless service facilities and their equipment shelters shall not increase any non-conformity. This is the.current bylaw. We understand that there has been some confusion about the meaning of the bylaw with regard to the installation of new antennas in existing buildings. The undersigned wish to clarify the confusion. As the committee responsible for the amended setbacks above, we affirmatively state that Section 8.9 3) c) v) (2) is written solely for cases of wireless structures in existence at the time of this bylaw in 2000, and that all new wireless structures, whether attached to a new or existing structure, shall have a minimum setback of 600 ft from residential or educationally zoned properties per the requirements of Section 8.9 3) c) v)(1). Any interpretation that Section 8.9 3) c) v) (2) applies to existing buildings,rather than preexisting wireless structures, is simply incorrect. Sincerely, Keith Mitchell, Esq. Donald Stewart Lynn Arvikar Bea Fink 5 26. The Zoning Bylaw establishes front, rear, and sideyard requirements [see Table 2 of the North Andover Zoning Bylaw] between wireless services facilities and properties in the R4 zoning district that are zoned or used for permitted uses other than residential or educational uses [Section 8.9 3 (c)(v)(1)]. For example, the Zoning Bylaw requires setbacks between wireless services facilities and the lot lines of properties used for agriculture, farming;the sale of products grown on the farmland, as a cemetery, a golf course, a municipal recreation area, a public building, or a recreation area [see Table 2 and Section 8.9.4.1221. 27 At a minimum, all wireless services facilities must comply with the building setback provisions of the zoning district in which such wireless services facilities are located [Section 8.9.3 (c)(v)]. 28. In addition., however, there must be a distance of 600 feet (setback) between wireless devices, antennas, and their mounting structures and properties zoned or used for residential or educational purposes [Section 8.9 3 (c)(v)]. 29. The Building Inspector/Zoning Enforcement Officer, and the Planning Board in the Decision seek to read that setback requirement, adopted by Town Meeting, out of the North Andover the Zoning Bylaw. 30. Why? 31. A 600 foot.setback requirement is mandated for the distance between wireless services facilities and properties used for educational or residential uses. 32. Section 8.9 3 (c)(v) addresses the appropriate setback requirements for "[A]ll" wireless services facilities." Wireless services facilities are defined to include "towers, antennae, antennae support structures, panels, dishes, and accessory structures" [Section 8.9.2 (z)]. 6 33. Subsection (1) of Section 8.9 3 (c)(v) distinguishes among ground mounted wireless services facilities, new structures, and existing structures (all as antenna mounts). 34.'Subsection (2)of Section 8.9 3 (c)(v) distinguishes between preexisting structures and preexisting nonconforming structures (as antenna mounts). It establishes that all of them must comply with the building setback provisions of.the zoning district in which such wireless services facilities are located. 35. Section 8.9 3 (c)(v) is quite unambiguous that"[A] minimum setback of 600 feet shall be required for all wireless devices, antenna and their mounting structures, whether attached to a new or existing structure, as measured from the adjacent property line of properties which are either zoned for, or contain, residential and or educational uses of any types." 36. Buildings are explicitly excluded from the preexisting structures referenced in Section 8.9 3 (c)(v)(2), 37. Section Section 8.9 3 (c)(v)(2),presents setback requirements for previously existing structures other than buildings. 38. The setback requirements for structure mounted wireless service facilities are established in. Section 8.9 3 (c)(v)(2). 39. By the explicit terms of the definition section of the wireless service facilities portion of the North Andover Zoning Bylaw, Section 8.9 3 (c)(v)(2) does not apply to buildings or parts thereof[see Section 8.9.2 (q)(4)]. The word "mount" is defined as "[t]he structure or surface upon which antennas are mounted." 40. The term "mount" is further defined for roof mounted, side-mounted, ground mounted, and structure-mounted antennas. 7 41. By its own terms, Section 8.9 3 (c)(v)(2) deals exclusively with structure-mounted wireless service facilities. 42. Structure-mounted is defined so as to exclude buildings ("Structure-mounted: [Antennas] Mounted on a structure other than a building.") See Section 8.9.2 (q) (4). 43. Therefore, Section 8.9 3 (c)(v)(2) does not apply at all to buildings (i.e., here,to church buildings). 44. In any case, where an adjacent parcel contains an educational or residential use, new or existing structures for wireless service facilities require a 600' setback. See 11 22, 25, above. 45. The North Andover Zoning Bylaw establishes a setback requirement of at least six hundred feet(600') between wireless service facilities (including devices, antennas, and their mounting structures) and properties that are zoned for any type of residential or educational use. 46. The issues raised above were before the Planning Board while it considered the MetroPCS application for a special permit. 47. Yet, despite the clear language of Section 8.9 3 (c)(v), the past history of the Zoning Board of Appeals in considering variances from the 600 foot setback requirement, and the intervention of the drafters of Section 8.9 of the North Andover the Zoning Bylaw, the North Andover Planning Board saw fit to act in a contrary fashion and purported to grant a Wireless Special Permit on the ipse dixit of the Building Inspector/Zoning Enforcement Officer, without more, instead of requiring the Applicant to submit a.petition for a variance(s) under the Zoning Bylaw 48. The gravamen of the Decision of the Planning Board is found in Findings of Fact ##3 and 12 of the Decision. 3. The Zoning Enforcement Officer of Town of North Andover reviewed the permit application and determined that it complied with the Zoning Bylaw 8 without variances and that the Special Permit Granting Authority (the Planning Board) should rule on the application as referenced [in his letter dated December 3, 2008.; see the Decision, page 9, Section 16 (b), #27). 12. the Planning Board believes that the applicant has demonstrated compliance with the Town of North Andover Zoning Bylaw requirements for this application. 49. In his December 3, 2008 letter to the Planning Board (ss the Decision, page 9, Section 16 (b),#27), Gerald A. Brown, the current Inspector of buildings/Zoning Enforcement Officer of the Town of North Andover, says: I have reviewed the Wireless Services Facilities Section 8.9.3(v)(1) of the Zoning Bylaw of the Town of North Andover . . .The aforementioned section does not apply to the proposed installation at the Trinitarian Congregational Church of North Andover, as the proposed antennas will be installed within the existing church spire. 50. Instead,he relies upon Section 8.9.3(v)(2) and concludes: Therefore, I am of the opinion that the Applicant does not need to petition the North Andover Zoning Board of Appeals for a variance under Section 8.9.3(v)(1). 5.1. In the Decision, the Planning Board simply adopted this "opinion," without any analysis or comment on its merits. 52. As has been true also of many spokespersons of Trinitarian Congregational Church the Planning Board during the pendency of this matter has dealt with citizens of North Andover :. with little more than a rude noise. 53. Brown's "opinion" about the law is in direct contradiction to the manner in which the Zoning Board of Appeals of the Town of North Andover has proceeded in the past under Section 8.9.3(v)(1) of the Zoning Bylaw. For example, on September 13, 2002, the North Andover Zoning Board of Appeals acted on a request for a variance by a telecommunications company applicant for relief from the provision of the 600 foot minimum setback requirement 9 from the property line of properties which are either zoned for, or contain, residential and/or educational uses of any types."The Zoning Board of Appeals determined that a variance was required and considered the application as a request for a variance. 54. The Planning Board was aware of this issue but doesn't mention it at all in its Decision. 55. The Planning Board was aware of challenges to the Building Inspector/Zoning Enforcement Officer's aforesaid "opinion" but does not comment on or analyze them. 56. The Planning Board has a responsibility to act seriously and to make reasoned decisions based on substantial evidence, which it has not done in the Decision. The North Andover Zoning Bylaw (Section 8.9.5(ix) contemplates that the Planning Board will make a "thorough review" of a proposed personal wireless services facility, which it has not done in the Decision. 57. The Planning Board is not charged with slavishly following without articulated reasons and the exercise of its own intelligence the opinion, advice, or lobbying of the Building Inspector/Zoning Enforcement Officer or anyone else. 58. For all of these reasons, the Decision of the North Andover Planning Board was in excess of its authority and must be annulled. 59. In addition„ the North Andover Zoning Bylaw improperly allows wireless services facilities in any zoning district by Special Permit (Section 8.9.3(a)(111)), in violation of G.L. C. 40A, § 11,11. 60. The Applicant has not carried its burden of proving that there are no feasible preexistent structures upon which to locate its antennas, as required by Section 8.9.3(b)(111). 10 61. The operation of the 6 panel antennas purportedly permitted by the Wireless Special Permit approved by the Planning Board in the Decision will alter the character defining features, the distinctive construction materials, or the original historic materials of the building in violation of Section 8.8.3(c)(1). See,foe example, the Decision,page 9, Section 16(b),#14. 62. The placement and operation in the Trinitarian Congregational Church, allegedly "a place of worship" for zoning purposes, of wireless antennas and other wireless service facilities purportedly permitted by the Wireless Special Permit approved by the Planning Board in the Decision will not preserve the character and integrity of the church, as required by Section 8.9.3(b)(ii) of the Zoning Bylaw. 63. The failure of MetroPCS to submit documentation of its legal right to install and use the proposed [wireless] facility mount at the time of application for a Wireless Special Permit is a violation of Section 8.9.3(b)(ii) of the Zoning Bylaw. 64. The North Andover Zoning Bylaw requires owners of property for which a Special Permit is sought to indicate their assent in writing to the application for a Special Permit at the time it is filed. Here, there was no such assent by the Trinitarian Congregational Church.. 65. There was no lease in effect between defendant Trinitarian Congregational Church and defendant MetroPCS relating to the locus at the time MetroPCS applied to the North Andover Planning Board for a Wireless Special Permit 66. The Applicant has not complied with the provisions of the Radiofrequency Radiation (RFR) Filing Requirements as set forth in the North Andover the Zoning Bylaw, especially in Section 8.9.5(d)(7). . 67. Defendant MetroPCS submitted with its Wireless Special Permit application a statement of a radio frequency engineer that refers, vaguely, to MetroPCS' alleged obligations Il and needs necessary to provide coverage, to resolve an alleged significant gap in the MetroPCS' wireless coverage and to resolve significant existing MetroPCS coverage inadequacy in North Andover. There are, however no specific details, only unverified and unsubstantiated conclusions. 68. The statement submitted by the MetroPCS engineer as part of'the Application refers to radio frequency propagation modeling, computer simulations, and field tests but offers absolutely no specific information or data that would allow a knowledgeable person (or anyone else) to evaluate the merits of his conclusory self-serving claims. 69. Further, it is clear that the term "preexisting structures" (whether conforming or non- conforming)refers to structures that were actually in existence and actually being used for wireless services facilities at the time the provisions of the current Zoning Bylaw became effective. Trinitarian Congregational Church ((to include parts thereof) has never actually been used as a location for wireless service facilities to this day. For this reason, also, Section 8.9.3 (v)(2) does not apply to the mounting of antennas in that church. 70. Trinitarian Congregational Church is not a preexisting structure within the meaning of the bylaw with respect to wireless service facilities' uses; it is a new or existing structure for antenna mounting purposes and is governed by the requirements of Section 8.9.3(c)(1)of the North Andover Zoning Bylaw, which establishes a 600 foot setback from educational or residential uses. 71. The operation of.wireless service facilities at the locus under the Wireless Special Permit allowed by the North Andover Planning Board in the Decision constitutes a nuisance which is being imposed upon the legitimate expectation of the quiet enjoyment of their property by each plaintiff. 12 72. Their unconsented to exposure to health risks and the fear, anxiety, and anguish associated with such possible risks to their health is an injury to each plaintiff,his or her family, and property, particularly where no defendant has demonstrated or can demonstrate that the plaintiffs and each of them and their families and property are nor exposed to harm from such exposures. 73. Under Massachusetts General Laws, c. 40A, § IA, zoning ordinances and bylaws, are adopted by cities and towns to regulate the use of land, buildings and structures to the full extent of the independent constitutional powers of cities and towns and to protect the health, safety and general welfare of their present and future inhabitants. 74. The protection of the health, safety, convenience, morals, and general welfare of the inhabitants of the Town of North Andover is an explicit purpose of the North Andover Zoning Bylaw. 75. According to the website of the Building Division of the Town of.North Andover, the mission of the Building Division is to ensure the health, safety and welfare of the Town's residents and visitors through the enforcement of the State and local laws, bylaws and regulations. 76. The provision in the Decision (Page 3, Findings of Fact#9) that "The Telecommunications Act of 1996 prohibits the Board from taking health effects of RF transmissions into account beyond FCC requirements" is incorrect, untrue, perverse, and pernicious. 77. The preexistent structures referred to in Section 8.9.3(v)(2) of the North Andover Zoning Bylaw are water towers, guyed towers, lattice towers, fire towers, monopoles, telephone 13 and electric utility structures that actually existed and that were actually being used as such before Section 8.9 of the current Zoning Bylaw became effective. 78. Because Section 8.9.3(v)(2) does not apply to buildings or to structures not actually being used for the mounting of antennas at the time the current bylaw became effective, it offers no comfort to those who claim that Section 8.9.3 (v)(2) warrants the attaching or mounting of . wireless service facilities to a church steeple unless there is a 600 foot setback from adjacent properties containing residential or educational uses. 79. The preexistent structure referred to in Section 8.9.3 (v)(2) cannot be a building and it is plain error to construe the term "preexisting structure" in Section 8.9.3 (v)((2) as a building. 80. There is no warrant in Section 8.9.3 (v)(2) for a claim that a church is the kind of preexisting structure that would somehow excuse adherence to the clear command of Section 8.9.3 (v)(1) that a 600' setback is required here for wireless services facilities. 81. The applicable section of the North Andover Zoning Bylaw is Section 8.9.3 (v)(1) and that section requires a 600 foot setback for either new or existing wireless devices, antennas, or their mounting structures from the property line of adjacent properties that contain educational or residential uses. 82. There are both residences, including those of plaintiffs, and a school located closer to Trinitarian Congregational Church than 600 feet. 83, The allowance of a Wireless Special Permit by the North Andover Planning Board in the Decision is in excess of its authority and must be annulled. 84. The distance of less than 600 feet between the proposed antenna mounts and the property line of adjoining properties and a school does not support an application for a Wireless 14 Special Permit by either MetroPCS or Trinitarian Congregational Church in the circumstances here. 85. Despite language in the Planning Board Decision that merely parrots selected portions of the North Andover Zoning Bylaw, the Applicant did not comply with all of the general requirements or applicable provisions of the Zoning Bylaw as set forth in Section 8.9 thereof. 86. The Planning Board Decision asserts that"the Planning Board finds that this project generally complies with the Town of North Andover Zoning Bylaw requirements as listed in Section 8.9. 87. Neither the Application nor the Decision complies with the requirements for the issuance of a Wireless Special Permit. 88. The Decision establishes illegal spot zoning. 89. Allowing special zoning treatment as detailed here for church owned property situated in the same zoning district the plaintiffs occupy, while denying such treatment to the plaintiffs, in effect„ constitutes unequal protection of the laws under both the United States and Massachusetts constitutions to the detriment of the plaintiffs. 90. Thus, for all of these reason and each of them, the plaintiffs, all residents of the same North Andover single residence zoning district (R 4) as the similarly zoned locus,request that this honorable court annul as in excess of the authority of the Planning Board the Wireless Special Permit granted to MetroPCS and the Trinitarian Congregational Church by the North Andover Planning Board as filed with the North Andover Town Clerk on March 57 2009 relating to 70 Elm Street, North Andover . 15 91. The Decision does not list among the Documents Submitted (see the Decision,pages 8-11, Section 16(b)) a document on the effects of wireless installations on property values. This 19 page document was submitted to the Planning Board during the public hearing on the Application , but it dpes not appear in the list of"Documents Submitted"in the Decision... 92. Ace.rtified copy of the Planning Board Decision is attached to this complaint.. WHEREFORE, the plaintiffs, pursuant to G.L. c. 40A, § 17,request that this honorable court determine that the Decision granting a Wireless.Special Permit to MetroPCS and Trinitarian Qongregational Church as filed with the North Andover Town Clerk on March 5, 2009 relating to 70 Elm Street, North Andover, is in excess of the authority of the Planning Board and must be annulled; and they also request that this court award them their costs and reasonable attorney's fees incurred in this action according to G.L. c. 40A, § 17, . Dated: March 25, 2009: Marthea Fournier Lizetta Fennessy Aaron Pertus Dagmar Schnellinger Lauretta E. Wentworth By their attornYS J. Coll Post Office Box 35 Wayland, Massachusetts 01778 [508]-358-6666 _ B.B.O. No. 042290 16 r NORTH �f,,�•' °"tio Town of North Andover A Office of the Planning Department * i > Community Development and Services Division 1600 Osgood Street North Andover, Massachusetts 01845 NOTICE OF DECISION Any appeal shall be filed within (20) days after the date of filing this notice in the office of the Town Clerk. Date: March 3,2009 Date of Hearings: December 2,2008, January 6,2009,January 27,2009, February 3, 2009,February 24, 2009, March 3, 2009 Date of Decision: March 3, 2009 Application of: MetroPCS Massachusetts, LLC & Trinitarian Congregational Church of North Andover Premises Affected: 70 Elm St. Map 42, Parcel 2. Referring to the above petition for a Wireless Special Permit from the requirements of the North Andover Zoning Bylaw, Sections 8.9 Wireless Service Facilities and Section 2.65 Special Permit Granting Authority. So as to allow the ability to install 6 panel antennas within the church steeple at a centerline height of 80 ft. The antennas will be connected via co-axial cable to three equipment cabinets to be located in the basement of the church building, within the Residential 4 District. The Planning Board hereby APPROVES the Wireless Special Permit for the installation of a Wireless Facility on an existing structure by a vote of 4 in favor and 0 against. ,North Andover P nning$oard %,. John Simons, Chairman Jennifer Borax, Clerk Richard Rowen Michael Walsh 1 The Planning Board herein approves the Special Permit to co-locate and operate the Wireless Facility, which consists of 6 panel antennas located in the church steeple and associated equipment cabinets, located in the basement of the Trinitarian Congregational Church building. The Special Permit was requested by Bill McQuade, Agent for MetroPCS Massachusetts, 285 Billerica Road, Chelmsford, MA 01824 and by the Trinitarian Congregational Church of North Andover. This application and additional documentation as cited herein was filed with the Planning Board on October 30 2008, with subsequent submittals on file. The applicant submitted a complete application which was noticed and reviewed in accordance with Sections 8.3, 8.9, 10.3, and 10.3.1 of the Town of North Andover Zoning Bylaw and MGL c.40A, Sec. 9. The Planning Board finds that the applicant has met' the following requirements as required by the North Andover Zoning Bylaw Section 8.9: FINDINGS OF FACT: 1. The carrier has demonstrated that there is an existing substantial gap in coverage in the vicinity of the proposed installation and that the facility is necessary in order to substantially close the gap in coverage as indicated by the submittals and reports referenced at the end of this decision in Condition#16. 2. The applicant has demonstrated that no alternative available sites, that will close the substantial gap in coverage, exist as an opportunity for co-location. Neither an existing alternative wireless facility monopole nor an existing alternative wireless facility installation, exist as indicated by submittals and reports referenced at the end of this decision in Condition #16. The evidence shows that an alternative site is neither available nor technically feasible, thus complying with the requirements of section 8.9.6 for co-location. 3. The Zoning Enforcement Officer of the Town of North Andover reviewed the permit application and determined that it complied with the Zoning Bylaw without variances and that the Special Permit Granting Authority (the Planning Board) should rule on the application as referenced in the letter referenced at the end of this decision in Condition#16.. 4. The application meets the filing requirements of the Wireless Service Facilities By-law Section 8.9, with the exception of the waivers granted listed in Condition #15. 5. Adequate and appropriate facilities will be provided for the proper operation of the proposed use. The proposed antennas cables and equipment area are described in detail on the plans and reports referenced herein. The proposed equipment shelter will be an unoccupied, unmanned, specialized area for the wireless communications equipment. A detailed signage and access plan has been submitted as part of the application. 6. A structural analysis of the building was performed by the applicant, as indicated 2 by the submittals and reports referenced at the end of this decision in Condition #16. The analysis determined that no structural upgrades are required for the installation of the wireless facility as proposed. 7. The applicant has provided evidence that they have a legal right to install the wireless facility as proposed, indicated by the submittals and reports referenced at the end of this decision in Condition #16. 8. Installation of this facility will have no visual impact on, the surrounding neighborhood because the facility is totally enclosed and will not be visible from adjacent properties. 9. The applicant has demonstrated that the proposed wireless facility will be in compliance with FCC regulations regarding Maximum Permissible Exposure (MPE) limits, as indicated by the submittals and reports referenced at the end of this decision in Condition #16. The Telecommunications Act of 1996 prohibits this Board from taking health effects of RF transmissions into account beyond FCC requirements. 10. The applicant has demonstrated they have met the requirements of all appropriate boards and commissions, as indicated by the National Environmental Policy Act (NEPA) Screen Report dated January 20, 2009 and the letter from the North Andover Historical Commission, dated December 22, 2008. 11. The application was reviewed by a consultant retained by the Planning Board Mark Hutchins, a certified radiofrequency engineer, who verified that the application is in compliance with the Federal Communications Commission (FCC) standards and that the application complies with the town of North Andover's bylaw with regard to RF engineering issues, including but not limited to the following: • The determination that a significant gap in coverage exists. • The determination that no alternative sites are available and technically feasible to close the coverage gap. 12. Neighbors and other citizens in.opposition to the project submitted documentation i.n support of their position. However, the Planning Board believes that the applicant has demonstrated compliance with the Town of North Andover Zoning Bylaw requirements for this application. Finally the Planning Board finds that this project generally complies with the Town of North Andover Zoning Bylaw requirements as listed in Section 8.9 but requires conditions in order to be fully in compliance. The Planning Board hereby grants an. approval to the applicant provided the following conditions are met: 3 SPECIAL CONDITIONS: 1) Discontinuance Abandonment a) At such time that a licensed carrier plans to abandon or discontinue operation of wireless service equipment, such carrier will notify the Town by certified US mail of the proposed date of abandonment or discontinuation of operations. Such notice shall be given no less than 30 days prior to abandonment or discontinuation of operations. In the event that a licensed carrier fails to give such notice, the wireless service equipment shall be considered abandoned upon discontinuation of operations. b) Upon abandonment or discontinuation of use, the carrier shall physically remove the wireless service equipment placed on tYfe site by the carrier within 90 days from the date of abandonment or discontinuation.of use. "Physically remove" shall include, but not be limited to: i) Removal of antennas, mount, equipment shelters and security barriers installed by the carrier(unless the same will continue to be used by the owner) from the subject property. ii) Proper disposal of the waste materials generated by the carrier from the site in accordancewith local and state solid waste disposal regulations. iii) Restoring the location of the wireless service facility in its condition before the installation, except that any landscaping and grading shall remain the after-condition. c) The equipment shall be deemed to be abandoned or discontinued if it has not been used for the purpose for which it was originally constructed for a period of six (6) months or more. Once abandonment or discontinuance has occurred, the carrier shall remove the equipment from the subject property within ninety days. 2) Upgrades: Any upgrades would require a new structural report to be submitted to the Planning Board for review. 3) Performance Guarantees a) Insurance in a reasonable amount determined acid approved by the Town Planner after consultation at the expense of the applicant with one (1) or more insurance companies shall be in force to cover damage from the equipment on the structure, damage from transmissions and other site liabilities. Annual proof of said insurance must be filed with the Town Planner. b) Annual certification demonstrating continuing compliance with the standards of the Federal Communications Commission, Federal Aviation Administration and 4 the American National Standards Institute shall be filed with the SPGA by the Special Permit holder. 4) Term of Special Permit. a) A Special Permit issued for this wireless service facility shall be valid for three (3) years. The special permit may be renewed under the same criteria as the original special permit, provided that the application for renewal of the special permit is made prior to the expiration date of the original or any renewed special permit. Additional measures governing the administration of the special permit are found in Section 10.3 of the Zoning Bylaw. b) After the equipment on the facility is in operation, the applicant shall submit to the SPGA, within 90 days of beginning operations and at annual intervals from the date of issuance of the Special Permit, preexistent and current RFR measurements. Such measurements shall be signed and certified by an RF engineer, stating that RFR measurements. are accurate and are in compliance or why the measurements fail to comply with all applicable FCC Guidelines as specified in Section 8.9(5)(d)(vii) RFR Filing Requirements of this Bylaw. The measurements shall be submitted for both the applicant and all co-locators. C) After the wireless service facility is in operation the applicant shall submit to the SPGA; within 90 days of the issuance of.the Special Permit, and at annual intervals from the date of issuance of the Special Permit, preexistent and current measurements of acoustic noise from the wireless service facility. Such measurements shall be certified and signed by an acoustical engineer, stating that noise measurements are accurate and meet the Noise Standards sub-section 8.9.(5)(d)(vi) of this Bylaw. The applicant shall forward to a separate consulting engineer, selected by the Town, the above materials for review. The applicant shall pay for such review. d) The applicant and co-applicant or their successor in interest shall maintain the wireless service equipment in good condition. Such maintenance shall include, but shall not be limited to, painting and structural integrity of the antennas. 5) Prior to the start of construction: a) The applicant shall provide a map indicating the intended locations for testing as required above. b) A bond in the amount of $5,000 shall be posted for the purpose of insuring that a final as-built plan showing the location of all on-site structures. The bond is also in place to insure that the site is constructed in accordance with the approved plan. This bond shall be in the form of a check made out to the 5 Town of North Andover. This check will then be deposited into an interest bearing escrow account. c) The applicant shall provide the necessary escrow accounts and insurance as required in the above sections 3a and Sb. d) A construction schedule shall be submitted to the Planning Staff for the purpose of tracking the construction and informing the public of anticipated activities on the site. e) The applicant shall determine the preexisting conditions of the noise levels emanating from the site to determine the baseline noise conditions of the site area.. The noise survey will provide evidence ofthe origin of surrounding noise and therefore a baseline condition from which the applicant determine their increases. The noise levels shall not increase the broadband level by more than lOdb(a) above the ambient levels or produce a "pure tone" condition as set forth in DAQC Policy 90-001, the guideline for 310 CMR 7.10. The applicant may use relevant professional sound emitting data from the prior building use to build a baseline based on prior use of the building and grounds. References to sources for data must be included in the material. 6) Prior to FORM U verification (Building Permit Issuance): a) The final site plan mylars must be endorsed and three (3) copies of the signed plans must be delivered to the Planning Department. b) A certified copy of the recorded decision must be submitted to the Planning Department. 7) Prior to verification of the Certificate of Compliance (Control Construction Documentation) and final approval by the Building and Electrical Inspector the applicant must submit a letter from the architect or engineer of the project stating that the construction and operations substantially comply with the plans referenced at the'end of this decision as endorsed by the Plarming Board. 8) Prior to the final release of security a final as-built plan showing final construction and location of the wireless hardware shall be submitted to and reviewed by the Planning.Staff. 9) In an effort to reduce noise levels, the applicant shall keep in optimum working order, through regular maintenance, any and all equipment that shall emanate sounds from the structures or site. 6 10)No equipment or other equipment that will emanate noise-exceeding levels cited herein shall be placed on the exterior of the structure. Such equipment shall be enclosed as shown on the plans. H)The provisions of this conditional approval shall apply to and be binding upon the applicant, its employees and all successors and assigns in interest or control. 12)Any action by a Town Board, Commission, or Department that requires changes in the plan or design of the building as presented to the Planning Board, may be subject to modification by the Planning Board. 13)Any revisions shall be submitted to the Town Planner for review. If these revisions are deemed substantial, the applicant must submit revised plans to the Planning Board for approval. ' 14)This Special Permit approval shall be deemed to have lapsed after two years from the date permit granted unless substantial use or construction has commenced. Substantial use or construction will be determined by a majority vote of the Planning Board. 15)The following waivers were granted in determining this decision in accordance with the authority designated by Section 8.9.(5)(d)(ix)of the Zoning Bylaw: • Section 8.9(5)(d)(iv) Landscape Plan. A landscaping plan has not been provided since this is a co-location within an existing building. • Section 8.9(5)(d)(iii) Contours on Site Plan at 2 feet AMSL. Since this is a co- location within a building the plan does not show 2 foot contour lines for the property. • Section 8.9.(5) (d) (iii) (13) Waiver of Site Filing Requirements — Location of all wetlands on the subject property and within 100' of the proposed facility as approved by the Conservation Commission. No wetlands are located on the property or within 100 ft. of the property. • Section 8.3(3)(a)(ii)Site Plan Review. The application is for a co-location on existing building, and will not require additional water and sewer, will not generate significant additional traffic and will not cause any detriment to public health and safety. 16)The following information shall be deemed part of the decision: a) Plan titled: MetroPCS Site No. BOS0380C Trinitarian Congregational Church 70 Elm St. North Andover, MA. 7 Essex County Prepared for: MetroPCS 285 Billerica Road Chelmsford, MA 01824 Prepared by: Hudson Design Group 1600 Osgood St. North Andover, MA 01845 Dated: 10/15/08, revised 10/22/08, 10/27/08 Sheets: , Sheet Number Title T-1 Title Sheet C-1 Plat Plan Z-1 Robf Plan & Equipment Room Plan , Z-2 Elevation Z-3 Details b) Documentation Submitted: 1. Original Planning Board Application for Special Permit with Site Plan Approval, dated October 30, 2008, complete with narrative, certified abutters' list; 2. Updated Application cover sheet, naming joint applicants MetroPCS, LLC and the Trinitarian Congregational Church of North Andover, dated January 27, 2009; 3. An RF report, dated October 30, 2008, prepared by Frantz Pierre, with coverage charts, demonstrating (1) the need for the facility, (2) the coverage it will provide; 4. Letter requesting for Waiver from Site Plan Review, Section 8.3(3)(a)(ii); 5. Letter requesting waivers for Site& Design Filing Requirements; 6. A set of 3 (three) Proposed Coverage Maps from BOS0380C; 7. Statement of Radio Frequency Engineer, dated October 23, 2008; 8. Compliance with FCC regulations regarding Maximum Permissible Exposure, dated October 23, 2008; 9. Power Density Calculations; 10. FCC Radio Station Authorization, dated November 30, 2006; 8 11. A Letter of Authorization from William W, Pickles III, Chairman, Trustees, Trinitarian congregational Church, dated October 27, 2008; 12. A Letter of Authorization from Kate Rugman, Site Acquisition Manager, MetroPCS, dated February 18, 2008; 13. A set of 9 (nine) photo location maps, dated October 20, 2008; 14. A portion of a brochure from Stealth Corp., highlighting the proposed replacement louvers; 15. Structural Analysis, dated May 9, 2008, prepared by Hudson Design Group, Inc; 16. A letter from Hudson Design Group, providing a structural assessment of the existing flagpole located at Steven's Estate, dated December 19, 2008; 17. A report from Noise Control Engineering, dated November 17, 2008; 18. A memo from Noise Control Engineering, addressing the issue of Pure Nose, dated December 23, 2008; 19. A NEPA report from Envirobusiness (EBI) Consulting, dated November 20, 2008; 20. A report from.Donald Haes, Radiation Safety Specialist, dated November 11, 2008; 21. A report from Mark Hutchins, Radiofrequency Engineer, dated January 19, 2009; 22. An Alternative Analysis of Wireless Telecommunications Facility Locations, North Andover, MA; 23. Am RF/EME Safety Plan, prepared by Hudson Design Group, dated January 29, 2009; 24. Report from VHB, dated December 18, 2008; 25. Various Reports From J. Tymon, dated November 3, 2008, December'-), 2008, January 27, 2009; 26. Various memos from Peter B. Morin, Esq., dated December 11, 2008, January 20, 2009, and January 30, 2009; 27. A memo from Gerard Brown, Zoning Enforcement Office, town of North Andover, dated December 3, 2008; 9 28. A memo from Gerard Brown, Zoning Enforcement Officer, town of North Andover, dated February 24, 2009; 29. A real estate appraisal report titled "Site Specific Cellular Communications Installation Analysis, by William J. Pastuszek, dated February 10, 2009; 30. An updated NEPA report from Envirobusiness (EBI) Consulting, dated January 20, 2009; 31. A memo from the town of North Andover Historical Commission dated December 22, 2008. 32. Multiple documents from neighbors, abutters and attendees at public hearings including: • Letter to Editor—Thea Fournier, date unknown; • Letter from L. Fennessy, Date Dec. 2, 2008; • List of Signatures "Not in favor of antennas in steeple" dated Dec. 2, 2008 • Letter from J. Fitzgibbons, dated Jan. 15, 2008; • January 23 2009 letter from Walter Soule supporting the 600 ft. setback change made in 2000; • January 26 2009 letter from the 2000 Wireless Committee supporting the 600 ft. setback change made in 2000; • The first page of the Citizen Petition opposing the 70 Elm St. Wireless Facility installation. The petition contains approximately 162 signatures; A compilation of health reports (summaries) demonstrating health effects of RF emissions; • A memo from E. Collins, dated Jan. 26, 2009; • Affidavit of Robert Noone, a real estate appraiser, stating his opinion that wireless facilities could have an effect on property values; • . Statement from Lauretta Wentworth, a real estate agent and abutter to the 70 Elm St. property, stating that in her opinion, the value of her home could be decreased due to the presence of a wireless facility. Also included is a current appraisal of her home at 45 Elm St; • The decision of the court of the Southern District of New York, Verizon Wireless vs. the town of Clarkstown; • Email from D. Deems dated Feb. 24, 2009; • Email from B. Romano, dated Feb. 18., 2009; • Fire/Safety list submitted by A. Petrus at Feb. 24 2009 Planning Board meeting; • Letter from E. Collins with Letter-to Editor from M. Quinlan, received at PB meeting Feb. 24, 2009; 10 • Map and list of cell tower location, submitted by C. Allen, received at PB meeting Feb. 24, 2009, along with associated material, totaling 29 pages, including 2 letters from R. Nicetta, Building Commissioner, Town of North Andover, dated Aug.1, 2001 and May 25, 2002; and 2 letters submitted by G. Brown, Building Commissioner town of N6rth Andover„ dated April 12, 2006 and Dec, 3, 2008; • A copy of the Tampa Times,, dated Feb 17, 2009; • A letter to R. Nicetta from J. Stearns, dated July 27, 2001% 11 MGDERMOTT, QUILTY & MILLER LLP 131 OLIVER STREET - 5T, FLOOR BOSTON, MASSACHUSETTS 02110 TELEPHONE: 617-946-4600 FAGS I M I LE: 617-946-4624 May 18, 2009 Honorable John T. Lu Associate Justice Superior Court Administrative Office Suffolk County Courthouse, 13th Floor Three Pemberton Square Boston, MA 02108 Re: Marthea Fournier et als. Vs. John Simons et als. No. Essex Superior Court No. 2009-559-C REQUEST TO EXCEED PAGE LIMIT FOR MEMORANDUM OF LAW Dear Judge Lu: I must request your permission to exceed the twenty-page maximum length for a memorandum of law in support of my Motion for Summary Judgment. The memorandum contains twenty-one pages of legal argument and runs a total of twenty-six pages (including mast head and signature page). The Motion involves a request to dismiss a zoning appeal by abutters based upon their lack of standing. The length is made necessary because the basis of the motion involves a federai pre-emption argument that has not been addressed directly by an appellate court in the Commonwealth, and therefore, case law from other jurisdictions must be presented. Additionally, the material facts are numerous (sixty-one numbered paragraphs), and reference to the facts in the memorandum consumed space. Finally, the Plaintiffs have included multiple counts beyond the zoning appeal, including equal protection, nuisance and spot zoning. While addressing those issues did not consume inordinate space, it did necessitate exceeding the twenty-page limit. Your permission is therefore requested. Thank you for your assistance. Very truly yours, l� Pe er �--4. Morin .J - cc' Edward J. Collins,, Esquire Thomas J. Urbeiis, Esquire U`- 0 Telephone: 15081-358-6666 E-Mail Address: eiclawAcomeast.net EDWARD J. COLLINS Attorney-at-Law Post Office Box 35 Wayland,Massachusetts 01778 May 21, 2009 Hon. John T. Lu Associate Justice Massachusetts Superior Court Department Superior Court Administrative Office Sufffolk County Courthouse (13th Floor) 3 Pemberton Square n Boston, Massachusetts 02108 SUBJECT: Fournier, et al. v. Simons, et al Essex County Superior Court Docket No. 2009 CV-00559-C Dear Judge Lu: I received by mail yesterday a letter request to you dated May 18, 2009 by one of the defendants (MetroPCS Massachusetts)in the captioned action seeking your permission to ' exceed the maximum page limit for a Memorandum of Law in support of a motion for summary judgment brought by MetroPCS. On the theory that whatever assists the court in deciding a case —� properly on the merits is a good thing, I generally assent to MetroPCS.'s request. (� However, if you are inclined to grant the request, I ask that you do so with three L conditions: a (1) that I be served promptly with electronic copies (e-mail attached files in *.rtf or Microsoft Word format)of the MetroPCS Motion for Summary Judgment and associated memoranda and -- papers that are available in such format. I received by mail yesterday the MetroPCS Motion for Summary Judgment and associated papers (including the letter referred to above). I also received in electronic format,pursuant to the current version of Superior Court Rule 9A, a Statement of Material Facts in Support of Motion of MetroPCS Massachusetts, LLC for Summary Judgment. As counsel for MetroPCS makes abundantly clear in his letter to you,the case is possibly quite complex and raises several issues, at least one of which apparently, in his words, "involves a federal pre-emption argument that has not been addressed directly by an appellate court in the `Commonwealth." This suggests to me that MetroPCS plans to take a run in the appellate courts on an issue similar or akin to the issue Southwestern Bell unsuccessfully pressed in Roberts v. Southwestern Bell Mobile Systems, Inc., 429 Mass. 478 (1999). This case was filed on March 25, 2009, about two (2) months ago. This has given MetroPCS an large amount of time to prepare its Motion for Summary Judgment. A glance at the huge stack of papers received by me today convinces me that MetroPCS has used that time for just that purpose. If I had all of their papers in electronic form, I would be able to save a significant Ou amount of time in preparing an appropriate opposition. This seems to be the very purpose of the changes to be found in the Summary Judgment portions of the new Rule 9A. Such papers are already available in electronic form. Sending them to me in electronic format should impose only a very slight burden on MetroPCS. (2)that I be allowed until October 15, 2009 to serve my clients' opposition to the MetroPCS .motion. I represent five (5) different clients, all of whom will have to be consulted on more than sixty allegedly undisputed material facts, recited at great length, not to mention additional material facts they may have to offer, particularly as the MetroPCS motion appears to address voluminous factual issues addressed uniquely to each plaintiff. The Tracking Order in the case sets January 19, 2010 as the deadline for serving discovery requests and February 18, 2010 as the deadline for the filing of Summary Judgment motions. No discovery has been conducted yet by any party. Mass. R. Civ. P. 56(f)provides (f) When Affidavits Are Unavailable. Should it-appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to jifstify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. This matter will unlikely be ripe for Summary Judgment before February 18, 2010.Nevertheless, assuming genuine cooperation from all the defendants on discovery issues, I can probably have a proper opposition prepared by October 15, 2009. (3)that I be allowed in opposition to submit at least a number of pages from five plaintiffs that equals the number of pages presented by one defendant. Indeed,.a quick review of the pile of papers that arrived on my desk today from MetroPCS suggests that I should probably ask for 5 times the space used by defendant MetroPCS. I appreciate your consideration of these issues, and ask, on behalf of myself and my clients, that you grant permission to MetroPCS to exceed the page limit but that you do so on the conditions set forth above. Thank you. Very truly yours, / r / j Edward 1.: Colliiis FF e ct law(a,comcast.net cc: Peter B. Morin, Esq. Thomas J. Urbelis, Esq. Trinitarian Congregational Church 2 .iuire ToMonorable John T.Ju(16177888137) 15:54 05/27109GMT-04 Pg 02-03 PETER B. MORIN, ESQ. OF COUNSEL, MCDERMOTT QUILTY & MILLER LLP 21 CUSTOM HOUSE STREET SUIT 300 BOSTON, MA 02110 781-985-0789 tel. 866-380-6570 fax pbniorinp,,conic ast"net VIA FACSMILIE 617-788-8137 May 27, 2009 Honorable John T. Lu . Associate Justice , Superior Court Administrative Office Suffolk County Courthouse, 13th Floor Three Pemberton Square Boston, MA 02108 Re: Marthea Fournier et als. Vs. John Simons et als. No. Essex Superior Court No. 2009-559-C Dear Judge Lu: I submit this letter to object to the conditions made by Mr. Collins in his letter of May 21St(received in,our office today). I address them seriatim: (1) The "huge stack of papers" attached to the motion consists almost exclusively of documents from the public record, most of which either were submitted by the plaintiffs themselves or are copies of board minutes, or news articles and letters to the editor quoting or written by one or more of the plaintiffs. The documents on file with the Planning Board are available to Mr. Collins, in pdf format, with a telephone call to the planning board secretary. There is nothing at all "complex" about the case. The motion seeks dismissal on the basis of standing and addresses some of Mr. Collins more novel theories of pleading. The federal pre-emption issue has been addressed in Massachusetts in several contexts (one of which was adverse to Mr. Collins' client, Sangiolo v. Board of Aldermen of Newton, 57 Mass. App. Ct. 911, 914(2003)), but not in the standing context. I see no reason why I should supply Mr. Collins with my attorney work product as a condition of being permitted an insubstantial extension to the.length of my memorandum. (2) Mr. Collins asks the court for a four-month extension to respond to a motion that essentially addresses his clients' standing. The statement of material facts is comprised in substantial part of the record facts containing statements of his own clients (two of whom are not even parties in interest). Mr. Collins' challenge is to come up with ,quire To:Honorable John T.Ju (16177888137) 15:54 05/27109GMT-04 Pg 03-03 Honorable John T. Lu May 27, 2009 Page two facts pertaining to his own clients that support their standing. These facts either exist or they don't. It will not take time to find them. I do wish to point out that Mr. Collins is no stranger to litigation, at both trial and appellate levels, against the wireless telecommunications industry(and others). Nor is he a stranger to requesting extensions to the briefing schedule. The current Massachusetts Appeals Court Docket records reveal no less than eight cases during the past ten years where Mr. Collins has sought extension of the briefing schedule, six of which were preceded by at least one dismissal notice. (3) I know of no rule that limits the volume of documents Mr. Collins is permitted to submit with his opposition, other than fhe rule of common Sense. If Mr. Collins believes that he needs more than the allowed length for his memorandum in opposition, perhaps he should write the memorandum first and ask for leave when his fears are realized. If Mr. Collins requires an extension to complete his brief I respectfully request that he do so independently of your consideration of my letter, and that the Court act upon such a request with due regard for the defendant's right to an expedited review. Thank you for your attention. Respectfully yours, /S/ Peter B. Morin cc: Edward J. Collins, Esquire (VIA EMAIL) Thomas J. Urbelis, Esquire (VIA EMAIL) . n:PetVMorin To:Mark Bobrowski(16174227453) 16:05 07130109GMT-04 Pg 01-03 r Foxy To: Mark Bobrowski From: Peter Morin Fax: 16174227453 Pages: 3 Re: Fennessey Appeal Date: Jul 30, 2009 X Urgent For Review Please Please Reply For Comment Information •Comments: Please include the attached letter in the record of the above appeal. Thank you. n:Petgr Morin To:Mark Bobrowski(16174227453) 16:05 07130109GMT-04 Pg 02-03 f PETER B. MORIN, ESQ. OF COUNSEL, MCDERMOTT QUILTY & MILLER LLP l 131 OLIVER STREET 5th FLOOR O-A BOSTON, MA 02110 781-985-0789 tel. 866-380-6570 fax PMORIN@MQMLLP.COM July 27, 2009 Albert P. Manzi, III, Esquire Zoning Board of Appeals Town of North Andover 1600 Osgood Street North Andover, MA 01845 Re: Appeal of Lizetta Fennessey 70 Elm Street, North Andover Application of 600' Setback Dear Mr.Manzi: There is one additional matter I would like to mention prior to the continued hearing next week. Toward the end of the June 18th public hearing on the appeal, Ms. McIntyre made a factual assertion that I wish to insure Mr. Bobrowski is aware of. According to my recollection, Ms. McIntyre stated that she was a member of the bylaw committee that drafted the 600' setback provision, and that the purpose of the 600' setback was "Boston Hill." Boston Hill is an area that is both uniquely secluded from residential areas and attractive to wireless use because of its height. It is logical to conclude that it would be a preferable area for zoning of free-standing cell towers, and in fact, that is what has occurred. However, the assertion that the purpose of the 600' setback was"Boston Hill" also suggests that the purpose was to contain all wireless facilities (or at least, as many as possible)to one location in the town. That the location happens to be secluded from any residences might suggest that the purpose for doing to was aesthetic, which makes fine sense if the facility is a free-standing tower. It makes no sense whatsoever to argue that the aesthetics concern is furthered by the 600' setback when it is applied to an internal church steeple installation. I would encourage Mr. Bobrowski to examine the historical context of how this interest in Boston Hill arose, and what the purpose was in focusing on it. I also encourage him to examine the legality of adopting a zoning scheme whose purpose is to seclude all wireless facilities to a single parcel of land. n:Pete,r Morin To:Mark Bobrowski(16174227453) 16:05 07130109GMT-M Pg 03-03 ' Mr. Albert P. Manzi, III, Esquire July 30, 2009 Page 2 Finally, since the intent of the setback provision seems to be such a critical issue, and since Ms. McIntyre was a member of the bylaw committee with personal knowledge of the facts, it might be helpful to ask her to elaborate on her statement during the upcoming hearing on the 11th. Thank you for your attention. Very truly yours, /S/ Peter B. Morin cc: Mark Bobrowski, Esq. (w/ encl.) Thomas J. Urbelis, Esq. (w/o encl.) 1 1 URBELIS&FIELDSTEEL,LLP 155 FEDERAL STREET BOSTON,MASSACHUSETTS 02110-1727 Andover THOMAS J.URBELIS Telephone 617-338-2200 Telephone 978-475-4552 e-mail tju@uf-law.com Telecopier 617-338-0122 June 19, 2009 Board of Selectmen Zoning Board of Appeals North Andover Town Offices North Andover Town Offices 120 Main Street 1600 Osgood Street North Andover,MA 01845 North Andover,MA 01845 RE: TRINITARIAN CONGREGATIONAL CHURCH ON ELM STREET Dear Members: There is an appeal pending before the Zoning Board of Appeals with regard to the Building Commissioner's issuance of a building permit for a wireless facility for which the Planning Board issued a special permit. The appeal is based upon the applicant's contention that the wireless facility is subject to a 600 foot zoning setback from the Trinitarian Congregational Church and that the Building Commissioner erred in deciding otherwise. It is my understanding that objectors to the Commissioner's decision contend, among other arguments,that nearby property values would suffer as a result of the Commissioner's decision. Selectman Rosemary Smedile authorized me to state that she informed me that she will recuse herself from participation in a matter which may come before the Selectmen with regard to the pending appeal before the Zoning Board of Appeals because she has a financial interest in property within 600 feet of the Church. The State Ethics Commission enforces the Conflict of Interest Law, G.L. ch. 268A. Enclosed please find"Advisory 05-02: Voting on Matters Affecting Abutting or Nearby Property" revised June 2, 2005. If you or a family member or any other person or entity with which you are affiliated owns, or has a reasonably foreseeable financial interest in property within the 600 foot setback of Trinitarian Congregational Church, there could be a violation of the Conflict of Interest Law if you"participate" (which the Ethics Commission defines broadly) in any matter related to the appeal of the Building Commissioner's decision. JUN 2 2 2009 wi\wp'hwork\n-andovekorrespUs&zba.ltr-el.st.dw BOARD OF APPEALS URBELIS&FIELDSTEEL,LLP Board of Selectmen June 19,2009 Page 2 Please call if you have any questions. Very truly yours, --/ "C k Thomas J. Urbelis TJU:kmp Enclosure cc: Mark Rees (w/enc) Gerald Brown(w/enc) f Advisory 05-02: Voting on Matters Affecting Abutting or Nearby Property Page 1 of 5 The Official Website of the State Ethics Commission ` ; � 43 Mass.Gov State Ethics Commission Home>i..aws,Regulations and Forms>Information about the conflict of Interest l.aw>Financial Interests conflicting with Official Duties(268A,Sections 6, 13 and 1g >Educational Materials> Advisory 05-02: Voting on Matters Affecting Abutting or Nearby Property The conflict of interest law is intended to ensure that public employees act in the best interests of the citizens they represent,and do not pursue their own self-interests or other private interests.The law prohibits a public employee from participating,by voting,discussing,delegating or otherwise acting,in any matter that affects: • his or her own financial interests or those of a business partner; • the financial interests of his or her immediate family members(i.e.,the employee's spouse;and the parents,siblings and children of either the employee or the employee's spouse); • the financial interests of a private or"after-hours"employer,or anyone with whom the employee is negotiating or has an arrangement for prospective employment;or • any organization,either charitable or for-profit,in which the employee is serving as an officer, director,partner or trustee. The term"public employee"includes both elected and appointed state,county and municipal employees, whether paid or unpaid,full-time or part-time.An unpaid volunteer board member as well as,in some instances,a consultant who is a contractor are considered public employees for purposes of the conflict of interest law. I. PARTICIPATION IN A PARTICULAR MATTER The conflict of interest law defines participation as participating in agency action or in a particular matter personally and substantially through approval,disapproval,decision,recommendation,the rendering of advice,investigation or otherwise.Thus,a public employee participates not only when he makes a final decision or vote on a matter,but also when he discusses the merits of a matter with a colleague or makes a"non-binding"recommendation.A particular matter is any judicial or other proceeding,application, submission,request for a ruling or other determination,contract,claim,controversy,charge,accusation, arrest,decision,determination or finding.w II. DETERMINING PROHIBITED FINANCIAL INTERESTS The restrictions of the conflict of interest law apply regardless of the size of the financial interest.They apply in any instance when the private financial interests are directly and immediately affected,or when it is reasonably foreseeable that the financial interests would be affected.Also,the conflict of interest law prohibits any type of official action in such matters,regardless of whether the proposed action would positively or negatively affect the private financial interests. Example:An elected board of health member owns property abutting a proposed landfill.If the landfill is http://www.mass.gov/?pagelD=ethterminal&L=5&LO=Home&LI=Laws%2c+Regulations... 6/19/2009 Advisory 05-02: Voting on Matters Affecting Abutting or Nearby Property Page 2 of 5 approved,it will negatively affect the value of the board of health member's property value.Despite the fact that it will negatively affect his property value,the board of health member is in favor of the landfill. He may not participate in the discussion and vote of the landfill.(As discussed below,an appointed board member may participate if he discloses and receive from his appointing authority an exemption that would allow him to participate.) III.ABUTTING OR NEARBY PROPERTY MAY AFFECT A PUBLIC OFFICIAL'S FINANCIAL INTEREST Under the conflict of interest law,a property owner is presumed to have a financial interest in matters affecting abutting and nearby property.Thus,unless she can clearly demonstrate that she does not have a financial interest,a public employee should not take any action in her official capacity on matters affecting property that is near or directly abuts: • her own property; • property owned by a business partner; • property owned by any immediate family members; • property owned by a private employer,or prospective employer;or • property owned by any organization in which the public employee is an officer,director,partner or trustee. Otherwise,she risks violating the conflict of interest law. The following factors are considered to determine whether,in a particular situation,a person or organization has a financial interest in an abutting or nearby property.A financial interest is presumed whenever: • her property directly abuts(i.e.,it shares any part of a property line);or • her property is directly opposite a street,public way or private way,or she is an abutter to an abutter within 300 feet of the property line;or • she,because of an act or failure to act by the board or commission,may suffer an injury in fact which is different either in kind or magnitude from that suffered by the general public;or • the matter would otherwise alter her property value,rights,or use.For example,a property owner is presumed to have a financial interest in zoning changes,variances,nearby subdivision or development approvals,and roadway,sewerage or safety improvements. Example:An appointed state employee is reviewing an environmental impact report for a large development.The development abuts property owned by his parents.The state employee must notify his appointing authority,i.e.,the individual or board responsible for appointing the public employee to his position,and the State Ethics Commission of the conflict and may not participate in the matter unless he follows the exemption process discussed below. Example:An elected planning board member is also a business owner.A residential subdivision application is filed with the planning board for property abutting her business.She must not participate in http://www.mass.gov/?pageID=ethterminal&L=5&LO=Home&L 1=Laws%2c+Regulations... 6/19/2009 Advisory 05-02: Voting on Matters Affecting Abutting or Nearby Property Page 3 of 5 the subdivision application review and approval process. IV. REBUTTING THE PRESUMPTION THAT A FINANCIAL INTEREST EXISTS As discussed above,the Commission presumed that a property owner has a financial interest in matters affecting abutting and nearby property unless he can clearly demonstrate that he does not have such a financial interest.If a public official,in good faith,believes that no such financial interest,positive or negative,exists,he can rebut or refute that presumption by getting an independent real estate appraisal that concludes that the matter affecting the abutting or nearby property will not affect the financial interest of the public official.Such an appraisal should be a bona fide appraisal that includes such things as the credentials of the appraiser,sufficient detail about the property and the appraisal and a description of the basis of the opinion. V.ABSTAINING WHEN A CONFLICT OF INTEREST OCCURS Not only must a public employee abstain from voting when he has a conflict of interest,he may not participate in any official discussion of the matter.Ordinarily,the best course of action is simply to leave the room during the deliberation and vote of the board. Example:A selectman who discusses the environmental and traffic impacts of a license application for a business located next to his property but abstains from the final vote will nevertheless have participated through his discussing the license application. While a municipal employee and members of boards and commissions at both the state and municipal level are not required to disclose the reason for their abstention,an appointed state or county employee who would normally be required to participate in a particular matter as part of his job must disclose,in writing,to his state appointing official and the State Ethics Commission even if he wishes to abstain.The appointing official then determines if such an abstention should occur by following the exemption process discussed below.This disclosure is required even if the appointed state or county employee abstains. VI. EXEMPTIONS Statutory exemptions can,in certain instances,allow a public employee to take actions that would otherwise be prohibited. State and County Employees One exemption is available to all appointed state and county employees.This exemption is not available to any elected employee.As discussed above,an appointed state or county employee who would normally be required to participate in a particular matter as part of his job must disclose,in writing,to his appointing official and the State Ethics Commission the nature and circumstances of the matter and the financial interest.The appointing official,who receives the disclosure described above,may assume responsibility for the matter,assign responsibility for the matter to another employee or provide the state or county employee with a written determination allowing her to participate in the matter.Both the disclosure and the appointing official's determination are public records and,in addition,must be filed with the State Ethics Commission. Examine:A state employee responsible for approving small business grants must make a written http://www.mass.gov/?pageID=ethterminal&L=5&LO=Home&L 1=Laws%2c+Regulations... 6/19/2009 Advisory 05-02: Voting on Matters Affecting Abutting or Nearby Property Page 4 of 5 disclosure to her appointing official when a grant application to fund expansion of a day care center across the street from her home is assigned to her and may not participate in reviewing the grant unless the appointing authority provides her with a written determination that will allow her to do so.Both the disclosure and the written determination must be filed with the State Ethics Commission. Municipal Employees As noted above,an appointed municipal employee may choose to abstain from a matter in which she has a prohibited financial interest and,if she does so,need not make a disclosure.In order to participate in a matter involving abutting property,a municipal employee must disclose,in writing,to her appointing official the nature and circumstances of the matter and the financial interest.The appointing official,who receives the disclosure described above,may assume responsibility for the matter,assign responsibility for the matter to another employee or provide the municipal employee with a written determination allowing her to participate in the matter.Both the disclosure and the appointing official's determination are maintained as a public record by the appointing official and are not filed with the State Ethics Commission. This exemption is not available to any elected municipal employee. Example:The appointed department of public works director may make a disclosure and receive a written determination from his appointing official that will allow him to negotiate a contract that will build a new road in front of his property or he may abstain and his appointing authority may assume responsibility for negotiating the contract or assign it to another.The exemption is not available to the elected Board of Health member approving septic systems in a subdivision abutting her property;rather, she must abstain. An additional exemption is available to municipal employees.It allows a municipal employee to act provided that the particular matter is one of general policy and provided further that the issue affecting the private financial interests of the municipal official and his immediate family members also affects a"substantial segment"of the municipality's population.The Ethics Commission has advised that at least 10%of a municipality's population is a"substantial segment"for the purposes of the conflict of interest law;therefore,a municipal employee may act on matters affecting his own financial interests,or the interests of immediate family members,if the financial interest also.affects at least 10%of his municipality's residents(as determined by the most recent federal census). Example:An elected city councilor who owns a home in the city may participate in the establishment of residential tax rates.While the tax rate is a matter in which he has a financial interest,it is shared by more than 10%of the population,i.e.,all homeowners in the municipality. VII.RULE OF NECESSITY If more than one member of a board or committee is disqualified because of actual conflicts of interest, the board may not be able to act because it does not have a quorum.(If the number for a quorum is not set by law,a quorum is generally a majority of the board members.)In these instances,as a matter of last resort,the board can use what is called the rule of necessity to permit the participation of the disqualified members in order to allow the board to act.Prior to invoking the rule of necessity,public officials should review the Ethics Commission's Primer on Self-Dealing,Financial Interests and the Rule of Necessity or contact the city solicitor,town counsel or the Ethics Commission. VIII.CONCLUSION _ _ __ o_T ,_T ,, —o0l r,+Regulations... 6/19/2009 AQV1SOry VD-VL: V OLine, Oil MULW1"J tilIC:L111g tvvuu.iiit�, ui ivacuuy i Ivpvity While certain private relationships may not trigger the restrictions discussed above,they may require disclosure and compliance with other sections of the conflict of interest law.Again,for further advice, contact your town counsel,city solicitor or the Legal Division of the State Ethics Commission at 617- 371-9500. ISSUED:November 1987 REVISED:October 1991 REVISED:August 1994 REVISED:June 2,2005 [as an Advisory] FOOTNOTE !Note,however,that general legislation is not a particular matter.Thus,a public official may act on matters of general legislation,and certain home-rule petitions.For example,a legislator,a town manager or a state agency head may draft,promote or oppose general legislation,or legislation related to a municipal government's organization,powers,duties,finances or property.Matters involving other types of"special legislation,"regulations or administrative policies are not eligible for this exemption.For a determination as to whether a bill is"general legislation"or"special legislation,"contact the city solicitor,town counsel,agency counsel or the Legal Division of the State Ethics Commission. ©2009 Commonwealth of Massachusetts http://www.mass.gov/?pageID=ethterminal&L=5&LO=Home&L 1=Laws%2c+Regulations... 6/19/2009 Page 1 of 1 Brown, Gerald From: Rosemarysmedile@aol.com Sent: Friday, June 19, 2009 6:51 PM To: billgordon10@comcast.net; selectmanlanen@yahoo.com; ricknardella@comcast.net; tmwatson@woodridgehomes.org; attymanzi@manzilaw.net; epmcintyre@comcast.net; joe.lagrasse@comcast.net; dan@braese.com;jbyers@andoverattorneys.com; MT_IPPOLITO@VERIZON.NET; divailla@cisco.com; CourtneyLaVolpicelo; JohnLSimons; Michael.Walsh; Richard.Rowen; Richard; Timothy.Seibert@imo-da03.mx.aol.com Cc: Rees, Mark; tju@uf-law.com; Bellavance, Curt; Brown, Gerald; Tymon, Judy Subject: RE: TRINITARIAN CONGREGATIONAL CHURCH ON ELM STREET June 19, 2009 RE: TRINITARIAN CONGREGATIONAL CHURCH ON ELM STREET Dear Members, As a result of the recent request from the Zoning Board of Appeals to the Board of Selectman to authorize the funding of Special Counsel, Mark Bobrowski, to assist the ZBA in an appeal pending before the Zoning Board of Appeals with regard to the Building Commissioner's issuance of a building permit for a wireless facility for which the Planning Board issued a special permit, I will be recusing myself from this legal funding vote and all matters regarding this application and appeal. In full disclosure, I currently own investment property, have an immediate family member, and a client who own property within the 600 foot setback. It should also be noted that I reaffirmed my decision to recuse after discussing the matter with the State Ethics Commission General Counsel and Town Counsel Attorney Urbelis. Thank you all for your hard work and dedication to the Town of North Andover. Sincerely, Rosemary Connelly Smedile Selectman Download the AOL Classifieds Toolbar for local deals at your fingertips. 6/22/2009 Page 1 of 1 Brown, Gerald From: Rosemarysmedile@aol.com Sent: Friday, June 19, 2009 6:51 PM To: billgordon10@comcast.net; selectmanlanen@yahoo.com; ricknardella@comcast.net; tmwatson@woodridgehomes.org; attymanzi@manzilaw.net; epmcintyre@comcast.net; joe.lagrasse@comcast.net; dan@braese.com;jbyers@andoverattorneys.com; MT_IPPOLITO@VERIZON.NET; divailla@cisco.com; CourtneyLaVolpicelo; JohnLSimons; Michael.Walsh; Richard.Rowen; Richard; Timothy.Seibert@imo-da03.mx.aol.com Cc: Rees, Mark; tju@uf-law.com; Bellavance, Curt; Brown, Gerald;Tymon, Judy Subject: RE: TRINITARIAN CONGREGATIONAL CHURCH ON ELM STREET June 19, 2009 RE: TRINITARIAN CONGREGATIONAL CHURCH ON ELM STREET Dear Members, As a result of the recent request from the Zoning Board of Appeals to the Board of Selectman to authorize the funding of Special Counsel, Mark Bobrowski, to assist the ZBA in an appeal pending before the Zoning Board of Appeals with regard to the Building Commissioner's issuance of a building permit for a wireless facility for which the Planning Board issued a special permit, I will be recusing myself from this legal funding vote and all matters regarding this application and appeal. In full disclosure, I currently own investment property, have an immediate family member, and a client who own property within the 600 foot setback. It should also be noted that I reaffirmed my decision to recuse after discussing the matter with the State Ethics Commission General Counsel and Town Counsel Attorney Urbelis. Thank you all for your hard work and dedication to the Town of North Andover. Sincerely, Rosemary Connelly Smedile Selectman Download the AOL Classifieds Toolbar for local deals at your fingertips. 6/22/2009 Page 1 of 2 Glennon, Michel From: Atty. Albert P. Manzi III [atty manzi@manzi law.net] Sent: Friday, June 19, 2009 2:58 PM To: Dan Lanen; Tracy M. watson; Bill Gordon; Rosemary Smedile; Rick Nardella; Rees, Mark; Ellen Mcintyre; Glennon, Michel; Mark Bobrowski Subject: Fw: RE: Special Counsel -ZBA Please docket the ZBA on your next available meeting date for the proposed acceptance and fund: Attorney Mark Bobrowski as Special Counsel for the ZBA. To the extent you can approve prior ti meeting it would be helpful as time is of the essence. Thank you, APM III, Chairman, ZBA Attorney Albert P. Manzi III 24 Main Street North Andover, Massachusetts 01845 Tel. 978-681-6618 Fax. 978-681-6628 website: www.manzilaw.net Confidentiality Notice: The information andlor documents hereby transmitted are privileged and confidential matters intended only for the party named above. Any other reading, dissemination, distribution or reproduction is prohibited. If you receive this email in error,please notify the sent immediately by telephone and reply email and fully delete the email received without making a co the email or any attachments. --- On Fri, 6/19/09,Mark Bobrowski<mark@bbmatlaw.com>wrote: From: Mark Bobrowski <mark@bbmatlaw.com> Subject: RE: Special Counsel -ZBA To: attymanzi@manzilaw.net Date: Friday, June 19, 2009, 11:24 AM Al—attached is a proposed fee agreement. Thanks, MB -----Original Message----- From: Atty. Albert P. Manzi III [mailto:attymanzi@manzilaw.net] Sent:Thursday, June 18, 2009 1:12 PM To: Mark Bobrowski Cc: Ellen Mcintyre Subject: Special Counsel -ZBA Hi Mark- 6/19/2009 Page 2 of 2 The Board of Appeals may have need for Special Counsel to assist with a ch 40A Section 8 & 15 aggrieved party and decision. I have informally advised the Selectmen and Town Counsel that since Town Counsel has aided the Building Inspector in support of his finding(s)that are the subject of the petition, I am not inclined to ask for assistance as it may be a conflict since the Building Inspector is also an aggrieved party. I believe the Selectmen(new members) generally support this position, and I would need to send them a proposed fee agreement for special counsel. Do you have any interest? Hope all is well. Al Attorney Albert P. Manzi III 24 Main Street North Andover, Massachusetts 01845 Tel. 978-681-6618 Fax. 978-681-6628 website: www.manzilaw.net Confidentiality Notice: The information and/or documents hereby transmitted are privileged and contain confidential matters intended only for the party named above. Any other reading, dissemination, distribution or reproduction is prohibited. If you receive this email in error,please notify the sender immediately by telephone and reply email and fully delete the email received without making a copy of the email or any attachments. 6/19/2009 PROPOSED FEE AGREEMENT ADMINISTRATIVE APPEAL Mark Bobrowski proposes to serve as special counsel to the North Andover Boards of Appeals with regard to an administrative appeal as follows: 1. Attend meetings of the ZBA as requested. 2. Provide legal and technical review, as needed. 3. Prepare, at the instruction of the ZBA, a decision for filing with the Town Clerk. Billing Rate: $200.00/hour Mark Bobrowski JUN 7 y 2009 BOARD OF APPEALS j ffe Edit V&;., Insert Format 100'.S 8600ns t10 J 04)geply I Vj Reply to A:, I (#,o ForLard I go ft 18 X 1 4, 1 :0 5txa Fro-in: Atty.Abert P.Wanzi III [attymwzi_1mnea---.net,' Sert: Fri 6119/2009 2:58P1741 To: Dan Lanen;Tracy 14, B.-Gordon;Rosemary Srred-le;k,&Nardea;Rees,Mark;E"en7,1cntyre,Glennon,K,&e1,',4arkBobrv..sj.'Q Ct., SL!);ect: F,.-::RE:Special Coursel -ZBA Please docket the ZBA on your next available meeting date for the proposed acceptance and funding of Attorney Mark-Bobrowsld as Special Counsel for the ZBA. To the extent you can approve prior to your meeting it would be helpful as time.is of the essence. Thank you, ALP'N4 M. Chairman, ZBA Attorney Albert P. Manzi III 24 Main Street North Andover, Massachusetts 01846 Tel.978-681-6618 Fax.!978-681-6628 website: www.manzilaw.net Confidentialit yNotire.- The information andlor documents hareby transmitted are privileged and contain confidential matters intended only for the parte named above.Any,other reading, dissemination, distribution or reproduction is prohibited. If foil receive this email in enw,please notify the sander immediately,by telephone and rep.ly email andfulty delete the email received without making a copy of the email or any attachments. --- On Fd,6/19/09,'-Nlatk Bobrowski<jnarACa bbYYtatLaw.com>wrote: Front Mark Bobrowsld<markgbbmatlaw.com> Subject RE: Special Counsel- ZBA PROPOSED FEE AGRE... Zi lrbox-Kzosoft Oudaok F%%.RE:Spedal Cowisel... APM docs I Fa! i 3 � t6 - 3d i 1 3 JAS 9 7/; �)3 1 acre maximum 90% maximum 0 feet minimum- 10 feet maximum No required setback 3 feet minimum N/A 40 feet maximum N/A 3 spaces minimum-4 spaces maximum/1000 sq.ft.Gross Floor Area N/A Front, side or rear access not to exceed 20 feet width. Commercial Village Center District, Mixed-Use Village District, Resi- dential District and Shea Village Commercial District ft.Gross Floor Area.Commercial greater than 4,000 sq.ft.Gross Floor Area requires er Regulations. Page 1 of 1 Glennon Michel From: Kitchenchem@aol.com Sent: Monday,June 22,2009 8:39 AM To: Glennon, Michel Subject: Re: NA Party Aggrieved 2009-009 / Hi there, Got this PDF., but it was sent to Spam......r CQ Q it the others! Thea In a message dated 6/19/2009 2:50:43 P mglennon(atownofnorthandover.com wr An Excellent Credit Score is 750.See Yours in Just 2 Easv 6/22/2009 Page 1 of 1 Glennon, Michel From: Kitchenchem@aol.com Sent: Monday,June 22,2009 8:39 AM To: Glennon, Michel Subject: Re: NA Party Aggrieved 2009-0091 Hi there, Got this PDF., but it was sent to Spam......on Friday...,so I just dug it out! Thank you-I'll await the others! Thea In a message dated 6/19/2009 2:50:43 P.M. Eastern Daylight Time, mglennonQtownofnorthandover.com writes: An Excellent Credit Score is 750.See Yours in Just 2 Easy Steps! 6/22/2009 j 26 January 2009 To the Planning Board: We,the undersigned,are members of the Teiecommunic p ' 6 to study the use and placement of wireless devices withi J ✓�p s !, , bylaw as appropriate based on the.results of our study. Z y3 K, ly the Board of Selectmen at the August 21,.2000 Board of h :4✓v►�� Our work culminated in the amendment of the Zoning 1r Meeting. The provisions for setbacks in Section 83 ofI X t i as follows: V)Setbacks All wireless service facilitif th the building setback provisions of the z addition,the following setbacks sh; (1)1n order to ensure public safety_ aund- mounted wireless service facility to any pL.,t.__ if the facility/mount,mcluding any sutennas or other appurtenances. is considered the`&ll zone"..A minimum setback of 600 feet shall be requireu for all wireless devices,antenna and their mounting structures,whether attached to a new.or existing structure,as;measured from the adjacent property line of properties which are either zoned'for,or contain,residential and or educational uses of any types. (2)In thecvcnt that a preexistent structure is proposed as amount far a wireless.service. facility,the setback provisions of the zoning district shall apply.In the case of the preexistent non-conforming structures,wireless service facilities and their equipment. shelters shall not increase any non-conformity. This is the current bylaw. We understand that there has been some corrfusion about the meaning of the bylaw with regard to the Installation of new antennas in existing buildings. The undersigned wish.to clarify the confusion. As.the cominittee responsible for the amended setbacks above,we affirmatively state that Section 8.9 3)c)v)(2)is written solely for cases of wireless structures In existence at the time of this bylaw In 2400,and that all new wireless structures,whether attached to a new or existing structure,shall have a minimum setback of 600 ft from residential or educationally zoned.properties per the requirements of Section 8.9 3)c)v)(1). Any.Interpretation that Section 8.9 3)c)v)(2)applies to existing buildings,rather than preexisting wireless structures,Is simply incorrect. Sincerely, Keith Mitchell,EsQ. Donald Stewart Lynn Arvikar Former Member,BOS Former Member,BOS JUN 18 20D9 8 F. 1ICE. ;:.*A,k l ,,. 30ARD OF APPEALS JL 26 January 2009 To the Planning Board: We,the undersigned,are members of the Telecommunications Subcommittee that was appointed in.2000 to study the use and placement of wireless devices within the Town of North Andover,and to modify the bylaw as appropriate based on the results of our study. Our Subcommittee was approved unanimously by the Board of Selectmen at the August21,2000 Board of Selectmen meeting. Our work culminated in the amendment of the Zoning Bylaw at the December 11,2000 Special.Town Meeting. The provisions for setbacks in.Section 8.9 of the bylaw were amended at the meeting to read as follows: V)Setbacks All wireless service facilities and their equipment shelters shall comply with the building setback provisions of the zoning district in which the facility is located.In addition,the following setbacks shall be observed. (1)In order to ensure public safety,the minimum distance from the base of any ground- mounted wireless.service facility to any property line,shall be 2x the Height of the facility/mount,including any antennias or other appurtenances.This set back is considered the`&ll zone".A minimum setback of 600 feet shall be required for all wireless devices,antenna and their mounting structures,whether attached to a new or existing structure,as measured from the adjacent property line of properties which are either zoned'for,or contain,residential and or educational uses of any types. .(2)In the event thatit preexistent structure is proposed as a mount for a wireless service. facility,the setback provisions of the zoning district shall:apply.In the case of the preexisW'non-conforming structures,wireless service facilities and their equipment shelters shall not increase any non-conformity- This is the current bylaw. We understand that there has been some confusion about the meaning of the bylaw with regard to the installation of new antennas in existing buildings. The undersigned wish to clarify the confusion. As the committee responsible for the amended setbacks above,we affirmatively state that Section 9.9 3)c)v)(2)is written solely for cases of wireless structures In existence at the time of this bylaw In 2000,and that all new wireless structures,whether attached to a new or existing,structure,shall have a minimum setback of 600 ft from residential or educationally xoned properties per the requirements of Section 8.9 3)c)v)(1). Any.Interpretation that Section 8.9 3)c)v)(2)applies to existing buildings,rather than preexisting wireless structures,is simply incorrect. Sincerely, Keith Mitchell,Esq. Donald Stewart Lynn Arvikar Former Member,SOS Former Member,SOS n�w , �:. JUN 182009 $ NtC{ FINK/� 30ARD OF APPEALS 26 January 2009 It-4 To the Planning Board: We,the undersigned,are members of the.Telecommunications Subcommittee that was appointed in 2000 to study the use and placement of wireless devices within the Town of North Andover,and to modify the bylaw as appropriate based on the results of our study. Our Subcommittee was approved unanimously by the Board of Selectmen at the August 21,2000 Board of Selectmen meeting. Our work culminated in the amendment of the Zoning Bylaw at the December 11,2000 Special.Town Meeting. The provisions for setbacks in Section 89 of the bylaw were amended at the meeting to read as follows: V)Setbacks All wireless service facilities and their equipment shelters shall comply with the building setback provisions of the zoning district in which the facility is located. In addition,the following setbacks shall be observed. (1)In order to ensure.public safety,the minimum distance from the baseof any ground- mounted wireless service facility to any property line,shall be 2x the height of the facility/mount,including any antennas or other appurtenances.This set back is considered the"fall zone".A minimum setback of 600 feet shall be required for all wireless devices,antenna and their moue.ing structures,whether attached to a new or existing structure,as measured from the adjacent property line of properties which are either zoned for,or contain,residential and or educational uses of any types. (2)In the event that a preexistent structure is proposed as a mount for a wireless.service facility,the setback provisions of the zoning district shall apply.In the case of the preexistent non-conforming structures,wireless service`facilities and their equipment shelters shall not increase any non-conformity. This is the current bylaw. We understand that there has been some corrfusion about the meaning of the bylaw with regard to the installation of new antennas in existing buildings. The undersigned wish to clarify the confusion. As the committee responsible forthe amended setbacks above,we affirmatively state that Section 9.9 3)c)v)(2)is written solely for cases of wireless structures in existence at the time of this bylaw in 2000,and that all new wireless structures,whether attached to a.new or existing structure,shall have a minimum setback of 600 ft from residential or educationally zoned.properties per the requirements of Section 9.9 3)c)v)(1). Any.interpretation that Section 8.9 3)-c)v)(2)applies to existing buildings,rather than preexisting wireless structures,is simply incorrect. Sincerely, Keith-Mitchell,Esq. Donald Stewart Lynn Arvlkar Former Member,BOS Former Member,BOS 1�e�nr cc . �.zlt. JUN 18 2009 8 F,r~N tGE i4wK EALS /6714W BOARD OF APP Lizetta M.Fennessy Submission to the Zoning Board of Appeals June 18,2009 1. January 23,2009 letter to the Planning Board from Walter Soule 2. January 26, 2009 letter to the Planning Board from the 2000 Telecommunications Subcommittee 3. January 15, 2008 letter to Karen Carroll from Attorney Joseph Fitzgibbons 4. January 26,2009 letter to Thea Fournier from Attorney Ed Collins 5. October 24,2000 letter to Rev.Andy Gilman from Building Commissioner Nicetta 6. July 27, 2001 letter from Attorney Janet Stearns to Building Commissioner Nicetta 7. August 1,2001 letter from Building Inspector McGuire to Attorney Janet Stearns 8. May 25,2002 letter from Building Commissioner Nicetta to VoiceStream Wireless 9. April 12, 2006 letter from Building Commissioner Brown to Omnipoint Communications 10. December 3,2008 letter from Building Commissioner Brown to North Andover Planning Board 11. May 12,2009 North Andover Town Meeting,recorded on DVD(2 discs) 12. June 18,2009 Affadavit of Lizetta M. Fennessy D L JUN 1 BOARD OF APPEALS 23 January 2009 Attention: John Simons,Chairman Town of North Andover Planning Board At the August 21,2000 Board of Selectmen meeting,I requested that a committee be formed to study the placement of cell towers within the Town of North Andover,primarily as a means of generating more revenue for the town. A subcommittee was approved unanimously by the Board of Selectmen at the meeting. The subcommittee had numerous meetings leading up to the Special Town Meeting held on December 11, 2000. I attended the meetings because I had requested that the committee be formed. The result of this subcommittee's work was that the provisions for setbacks in Section 8.9 of the bylaw were amended at the December 11,2000 Special Town Meeting to read as follows: v)Setbacks All wireless service facilities and their equipment shelters shall comply with the building setback provisions of the zoning district in which the facility is located.In addition,the following setbacks shall be observed. (1)In order to ensure public safety,the minimum distance from the base of any ground- mounted wireless service facility to any property line,shall be 2x the height of the facility/mount,including any antennas or other appurtenances.This setback is considered the"fall zone".A minimum setback of 600 feet shall be required for all wireless devices,antenna and their mounting structures,whether attached to a new or existing structure,as measured from the adjacent property line of properties which are either zoned for,or contain,residential and or educational uses of any.types. (2)In the event that a preexistent structure is proposed as a mount for a wireless service facility,the setback provisions of the zoning district shall apply.In the case of the preexistent non-conforming structures,wireless service facilities and their equipment shelters shall not increase any non-conformity. I attended.the meetings where the change in wording was hammered out. I was in attendance at the Special Town Meeting. The wording was altered to mandate a.600 R setback for wireless facilities near residences and educadonal.facilities. As written in Section 8.9 3)c)v)(1),the bylaw clearly states that this applies to wireless devices that are attached to either new or eiisting structures. As written in Section 8.9 3)c)v)(2), the bylaw applies to a case of a wireless facility already in existence at the time of the bylaw's enactment. The bylaw should not be interpreted any other way,and I urge you to seek clarification from the original committee rather than rely on misinterpretation by others. Sincerely, Water.Soule g 70 Raleigh Tavern Lane JUN 18 200 BOARD OF APPEALS ,.,.."%4 IVA .3lp"UtV- Y WOO I idea Page 1 of 1 MAIL ... ' :.:. Classic Re: letter for ftnatutra Monday,January 26,2009 6:05 PM From: "8 Fink"<PeacefulRevolutlonaryocomcastnet> 7o: "Liz Fennessy"<i{zettafennessyQyahoocom> Dear Liz. 1 reviewed the letter and agree with it and authorize you to sign it on my behalf. Please correct my name. Bernice At 05:39 PM 9/2e/2009, you wrote: Dear Beatrice, 03 l am sorry to hear of your health issues that prevent you from writing, and o c therefore signing this letter. 1 would appreciate it if you could review this letter, C3 Z and if you agree with it, then please email me back with a statement that you o co o agree with the letter and authorizing me to sign it on your behalf. v o m � l appreciate your time. M cn Thanks very much! Sincerely, Liz Fennessy � JOSEPH FITZOIBBONS ATTORNBY AT LAW 126A PLEASAV1'\'Al.l.lil'.-,I'ItlShl' MSTIIitEN.MA SACTIUSETfS p I H.V t (878) 085.3090 FAX(1)78) 704-t)1 10 January 15, 2008 Ms. Karen Carroll 11 Woodbridge Road North Andover, MA 01845 JUN 1 8`200 Re: First Calvary Baptist Church. BOARD OF APPEALS Wireless Service Facility Dear Karen: Please be advised that I have reviewed Section 8.9.3(c) of the Zoning By- Laws of. the Town of North Andover and the letter. of -Gerald Brown, Building ComMissioner/Zoning Enforcement Office dated April 12, 2006 concerning the above captioned facility. It is my opinion that Section 8.9.3(c)(v) (1) requires a setback of the antenna a distance of 600 feet because the antenna is located next to an educational use. Section 8.9.3(c)(v) provides that the setback for a wireless facility comply with the setback established for the zoning district, however it sets forth exceptions. The last sentence of the section states "In addition the following setbacks shall be observed". The two subparagraphs follow. The first exception is contained in paragraph (1) which provides for a 600 foot setback when the antenna is next to an educational use. The second exception, in sub paragraph (2), relates to pre-existent structures which from the context of the subparagraph would refer to non conforming uses. The word "pre-existent" refers to those wireless facilities existing prior to the enactment of the zoning bylaw as opposed to the use of the word existing in subparagraph 1. The basis of the Building Inspector's opinion was that the church was a pre-existent structure. However, the church was not a pre-existent structure as it did not have a wireless facility in its spire at the time of the application. The church was an existing structure as*referred to in subparagraph (1) and requires the 600 foot setback: The interchangeable use by the Building Inspector' of the word "existing" in subparagraph (1) with the word "pre-existent' in subparagraph .(2),nullifies the provisions of subparagraph (1). A`bylaw must be read to be in harmonywith its different provisions. Very.truly yours, P JFrb Telephone: 15081-358-6666 E-Mail Address: eiclawAcomeast.net EDWARD J. COLLINS Attorney-at-Law Post Office Box 35 Wayland,Massachusetts 01778 January 26,2009 D � C E � M 10 Ms. Thea Fournier JUN 18 2009 247 Main Street North Andover, Massachusetts 01845 BOARD OF APPEALS SUBJECT: North Andover Zoning Bylaw (Setbacks & Wireless Services Facilities) Dear Ms. Fournier: You requested my opinion concerning the proper interpretation of the setback requirements found in § 8.9.3(c)(v) ["§ v"] of the Town of North Andover zoning bylaw as they apply in the R4 zoning district,particularly in view of certain opinions that have been proffered by some town officials. My opinion is that the Zoning Bylaw establishes a setback requirement of at least six hundred feet(600') between wireless services facilities (including devices, antennas, and their mounting structures) and properties that are zoned for any type of residential or educational use. The Zoning Bylaw establishes a front and rear yard setback requirement of thirty feet(30')and sideyard requirements of fifteen feet(15') [see Table 2] between wireless services facilities and properties in the R4 zoning district that are zoned or used for permitted uses other than residential or educational uses [§ v(1)]. For example,the Zoning Bylaw requires 15'/30' setbacks between wireless services facilities and the lot lines of properties used for agriculture, farming,the sale of products grown on the farmland, as a cemetery, a golf course,a municipal recreation area, a public building,or a recreation area[see Table 2 and § 8.9.4.122]. At a minimum, all wireless services facilities must comply with the building setback provisions of the zoning district in which such wireless services facilities are located [§ v]. "In addition," however,there must be a distance of 600' (setback) between wireless devices, antennas, and their mounting structures and properties zoned or used for residential or educational purposes [§ v].. A 600' setback requirement is mandated for the distance between wireless services facilities and properties used for educational or residential uses. A 15'/30' requirement applies to the distance between wireless services facilities and preexisting permitted uses in the R4 zoning district other than educational or residential uses [see Table 2], as for example, water towers, guyed towers, lattice towers, fire towers, monopoles,telephone and electric utility structures. As a preliminary matter, I note that I am quite surprised that some interpretations of§ v I have seen focus only on a few words in § v(2)with the unfortunate result that those interpretations are incorrectly derived from language that is taken out of context. For some, the language of§ v(1) seems not to exist,as if it were an inconvenient truth(to coin a phrase). First, § v addresses the appropriate setback requirements for"[A]11"wireless services facilities." Wireless services facilities are defined to include"towers, antennae, antennae support structures, panels, dishes and accessory structures" [§ 8.9.2 (z)]. Subsection(1)of§ v distinguishes among ground mounted wireless services facilities, new structures, and existing structures. (all as antenna mounts). Subsection(2)of§ v distinguishes between preexisting structures and preexisting nonconforming structures(as antenna mounts). It establishes that all of them must comply with the building setback provisions of the zoning district in which such wireless services facilities are located. Second, § v is quite unambiguous that"[A] minimum setback of 600 feet shall be required for all wireless devices, antenna and their mounting structures, whether attached to a new or existing structure, as measured from the adjacent property line of properties which are either zoned for, or contain,residential and or educational uses of any types." Buildings are explicitly excluded from the preexisting structures referenced in § v(2), which presents setback requirements for previously existing structures other than buildings. The setback requirements for structure mounted wireless services facilities are established in. § v(2). By the explicit terms of the definition section of the wireless services facilities portion of the Zoning Bylaw, § v(2)does not apply to buildings or parts thereof[§ 8.9.2 (q)(4)]. The word"mount"is defined as"[t]he structure or surface upon which antennas are mounted."The term"mount"is further defined for roof mounted, side-mounted, ground-mounted, and structure-mounted antennas. By its own terms, § v (2) deals exclusively with structure-mounted wireless services facilities. Structure-mounted is defined so as to exclude buildings ("Structure-mounted: [Antennas] Mounted on a structure other than a building.") See § 8.9.2 (q) (4). Therefore, § v(2)does not apply at all to buildings(i.e., here, to church buildings). In any case, where an adjacent parcel contains an educational or residential use, new or existing structures for wireless services facilities require a 600' setback. Further,it is clear that the term"preexisting structures"(whether conforming or non- conforming)refers to structures that were actually in existence and actually being used for wireless services facilities at the time the provisions of the current Zoning Bylaw became effective. I understand that the church building at issue(to include parts thereof)has never actually been used as a location for wireless services facilities to this day. For this reason, also, § v(2)does not apply to the mounting of antennas in that church. The church is not a preexisting structure within the meaning of the bylaw with respect to wireless services facilities uses; it is a new or existing structure for antenna mounting purposes and is governed by the requirements of§ v (1), which establishes a 600' setback from educational or residential uses. 2 Thus, because § v(2)does not apply to buildings or to structures not actually being used for the mounting of antennas at the time the current bylaw became effective, it offers no comfort to those who claim that § v(2)warrants the attaching or mounting of wireless services facilities to a church steeple unless there is a 600' setback from adjacent properties containing residential or educational uses. The preexistent structure referred to in § v(2)cannot be a building and it is plain error to construe the term"preexisting structure in § v(2) as a building. There is no warrant in § v (2) for a claim that a church is the kind of preexisting structure that would somehow excuse adherence to the clear command of§ v(1)that a 600' setback is required here for wireless services facilities. The preexistent structures referred to in § 8.9 are water towers, guyed towers, lattice towers, fire towers,monopoles, telephone and electric utility structures that actually existed and were actually being used as such before the current Zoning Bylaw became effective. The applicable section of the Zoning Bylaw is § v (1)and that section requires a 600' setback for either new or existing wireless devices,antennas, or their mounting structures from the property line of adjacent properties that contain educational or residential uses. Very truly yours, ward J. Co li I 41�L 3 TOWN OF NORTH ANDOVER OFFICE OF COMMUNITY DEVELOPMENT AND SERVICES 27 CHARLES STREET NORTH ANDOVER, MASSACHUSETTS 01845 Telephone(978)688-9545 yes FAX(978)688-9542 .i October 24,2000 Rev.Andrew M Crilman D M The Trinitarian Congregational Church 8 2 U 72 Elm Street JUN North Andover,Ma 01845 BOARD OF APPEALS Dear Rev Gilman. The October 23'd issue to the Eagle Tribune contained a story of Nextel possibly installing a number of antennas in the steeple of your church. The purpose of this correspondence is to inform you that this is a permitted process in the Town of North Andover. Pursuant to Section 8.9—Wireless Service Facilities—of the North Andover Zoning By—Law a special permit is required prior to the installation of a wireless service facility. Application for a hearing for the special permit must be made to the Planning Board acting as the Special Permit Granting Authority (SPGR).A copy of the by-laws is enclosed for your review. Variances,if necessary,must be obtained from the North Andover Zoning Board of Appeals prior to the SPGA hearing In addition to the above Building and Electrical Permits are required by the building department, Please do not enter into contract with Nextel until the permitting process is complete.If you require farther assistance please call me at 978-688-9545. Yours truly, D.Robert Nicetta Building Commissioner BOARD OF APPEALS 688-9541 BLrILDINI GS 688-9545 CONSERVATION 588-9530 HEAL:FH 688-9540 'PLANRINIG 584 9535 Y LAW OFFICES ROBINSON & COLE LLP www.rc.com BOSTON • HARTFORD • STAMFORD GREENWICH • NEW YORK One Boston Place Boston,MA 02108-4404 617-557-5900 Fax 617-557-5999 Janet R. Stearns 617-557-5971 jsteuns@bost.rc.com I July 2 1� t �, 2001 fix. U Mr. Robert Nicetta N 18 ZOOS Municipal Building BOARD OF APPEALS 120 Main Street North Andover, MA 01845 Re: Verizon Wireless- Proposed Wireless Installation at 401 Andover St., North Andove) Dear Mr. Nicetta: On behalf of Cellco Partnership d/b/a Verizon Wireless, I enclose a copy of a plan showing the wireless service facility Verizon Wireless proposes to locate on the existing office building located at 401 Andover Street(the"Property"). As shown on the enclosed plan,the north portion of the Property is located in a Residential District 4 and the southern portion is located in a.Greneral Business zoning district. The proposed facility consists of panel antennas mounted on the existing building parapet and related equipment. As we have discussed,Verizon Wireless is aware of the amendment to Section 8.9 of the Town's wireless service facilities bylaw, which was passed at the December 2000 town meeting. I also enclose a copy of a zoning bylaw review form prepared by your department in March 2001 in connection with this proposed facility. We have previously discussed the fact that this review form did not indicate the need for a variance from the newly established 600 foot setback requirement under Zoning Bylaw Section 8.9(3)(c)(v) I attended a meeting of the North Andover Planning Board on June 5, 2001 to discuss the future filing of a special permit application for the proposed facility under the recently amended wireless service facilities provisions. At that meeting, the Planning Board agreed that the proposed facility is the type of wireless service facility that is consistent with the purpose of the wireless service facility bylaw, but indicated that Verizon Wireless must first apply for a variance from the 600 foot setback provision established under the amended Zoning Bylaw. In our previous conversations, you requested the opportunity to review the enclosed plan prior to meeting with me to discuss your interpretation of the wireless service facility zoning provisions as applied to the proposed facility on the Property. After you have reviewed the BOST]-738957-1 ROBINSON & COLELLP Mr. Robert Nicetta July 27, 2001 Page 2 enclosed plans, I would appreciate the opportunity to meet with you to discuss the proposed Verizon Wireless facility. Please contact me at (617) 557-5971 if you require any additional information to complete your review. I will contact you next week to arrange a meeting to discuss zoning issues related to this proposed wireless service facility. Sincerely, J Stearns JRS/ek W p FIFO Cc: David Tivnan, Verizon Wireless (without enclosures) Z co 0 Enclosure 0o � m CM FH Cn ,ter D Cn �—, Town of forth Andover M�=M Office of the Building Department Community Development and Services Division , r, 27 Charles Street r,...�a{c'� North Andover,Massachusetts 01845 D.Robert Nicetta Telephone(978)688-9545 Building.Commissioner Fax(978)688-9542 August 1,2001 JUN 18 2009 BOARD OF APPEALS Janet R Stearns I Robinson& Cole LLP One Boston Place V Boston,MA 02108-4404 Re: 401 Boston St—Wireless Dear Ms Stearns: Please be aware I am in receipt of your letter dated July 27,2001 to Mr.Nicetta in regards to the proposed wireless installation at 4QI Ando Sit in North Andover. Please direct correspondence on this matter to me, as I am the Inspector who is handling this project. In re-visiting the proposal it has come to my attention that a variance is required from the Board of Appeals for the six hundred(600)foot minimum setback required for all wireless devices, antenna and their mounting structures,whether attached to a new or existing structure, as measured from the adjacent property line of properties which are zoned for, or contain residential and or educational uses of any type. Please be aware that a new site plan should be prepared and submitted to this office showing all structures within the six hundred(600)foot setback requirement from the property lines so that we may begin the process to go before the appeals board. Respectfully, Michael McGuire, Local Building Inspector Cc: Robert Nicetta,Building Commissioner Heidi Gfift Town Planner AO ARD OP APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLAItiTTING 688-9535 Town of North Andover Office of the Building Department Community Development and Services Division 27 Charles Street �` �► --� North Andover,Massachusetts 01845 D. Robert Nicetta Telephone(978)688-9545 Building Commissioner Fax(978)688-9542 May 25,2002 D A&Paul Gascoigne JUN 7 8 2009 D Reale Specialist BOARD voicestream wireless OF APPEALS 50 Vision Boulevard Past Providence,RI 02914 R& Building%mit Application I High Street(Schneider Bectric) Noah Andover,MA Dear Mr.Ciasoaigw. I have reviewed the building Permit application and admitted drawings as pared by Hdwards And Kelcey,Inc.,95 Cedar Street,Pravidenoe,RI 02903 for the reframed site and also bwvvn as Site Number 4BS-0658-A on the drawings. The buddingpermit is DENUD for the Wowing reasons: 1. The Building Permit Arca is incomplete. 2. I am of the 6pinion that pmulant to Section 8.9—Wireless Service Fees,Paragraphs 3— District Regplati'm Su&- aph(v)(1),which reads in part"A minimum setback of 600 fled shall be required for all wireless devices,and their mounting structures,whether attached to a new or aching structure,as.measur ed from the a#oent propertyrlime of pQopecties which are either coned fair,or contain,residential and or educational uses of any typos". Shy C-1 of the submitted dra dqx indicates many mal structures in the 600 feet was As such,I am of the opinion that the applicant must petition the North Andover Zoning Board. of Appeals(233A)a variance of this suck reg�Wation. This Va iance,if$ranted,by the ZA, must be in place prior to the application of the Planning Hoard Special Permit. 3. The PlammngBoard Special Fernut has not been issued and must be in place prior to the issuance of the Bdld.m$Permit The application form for the ZBA Variance is available from the Zoning Secretary at 27 Charles Street If you have any questions please call my al£ic a at 978-688-9545. Yours truly, D.Robert Nicetta Building Commissioner I Zoning Ol#h7er CC: Heidi Grift Director CD&S Clay Mitchell,Interim Town Planner. BOARD OF APPEALS 688-9541 BUILDING 688-9545 coxSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 TOWN OF NORTH ANDOVER OFFICE OF BUILDING DEPARTMENT y , i 400 Osgood Street North Andover, Massachusetts 01845 Gerald A. Brown Telephone(978)688-9545 Inspector of Buildings Fax (978)688-9542 April 12, 2006 Lr/ JD Gin Vilante UN 18 2009 Consultant to T-Mobile BOARD OF APPEALS I Omnipoint Communications,Inc. 50 Vision Boulevard �Atl) '� East Providence,RI 02914 RE: Proposed Wireless Service Facility First Calvary Baptist Church 586 Massachusetts Avenue North Andover,MA Dear Ms. Vilante: I have reviewed the Wireless Service Facilities Section 8.9.3(c)(v)(1) of the Zoning Bylaw of the Town of North Andarer Zoning which reads in part: "A minimum setback of 600 feet shall be required for all wireless devices, antenna and their IL, mounting structures,whether attached to a new or existing structure, as measured from the adjacent property line of properties which are eiiiffieff zoned or,or contain,residential and or educational uses of any types." The aforementioned Section does not apply to the proposed installation at the First Calvary Baptist Church as the proposed antennas will be installed within the existing church spire. Furthermore, Section 8.9.3(c)(v)(2) reads in per- t' In the event true-hire is proposed as a mount for a wireless service facility. the setback provisions of the zoning district shall apply...,, Therefore, I am of the opinion that the Applicant does not need to petition the North Andover Zoning Board of Appeals for a vanance under Section 8.9.3(c)(v)(1). Sincerely. Gerald Brown 't�ii+line'c;omiitissiu<<cr i Zoi)inl; Officer E NORTy � O st�ao e�y ti0 1� 9 ?A—4Z Too �9SS�cHusE�.h BUILDING DEPARTMENT Community Development Division DDecember 3,200E JUN 18 2009 BOARD OF APPEALS Planning Board Town of North Andover 1600 Osgood Street /r Building 20,Suite 2-36 North Andover,Massachusetts 01845 3 RE: Proposed Wireless Service Facility of Metro PCS Massachusetts LLC Trinitarian Congregational Church of North Andover 70 Elm Street North Andover,MA Dear Members of the Planning Board: I have reviewed the Wireless Service Facilities Section 8.9.3(c)(v)(1)of the Zoning Bylaw of the Town of North Andover,which reads in part: ...'A minimum setback of 600 feet shall be required for all wireless devices, antenna and their vaunting structures,whether attached to a new or existing structure,as measured from the adjacent properly fine of properties which are either zoned for,or contain,residential and or educational uses of any typno The aforementioned Section does not apply to the proposed installation at the Trinitarian Congregational Church of North Andover,as the proposed antennas will be installed within the existing church spire. Furthermore,Section 8.9.3(c)(v)(2)reads in part: ..."in the event that a preexistent structure is proposed as a mount for a wireless service fWlity,the setback provisions of the zoning district shall apply.In the lose of the preexistent non-conforming structures,wireless service facilities and their equipment shelters shall not increase any non-conformity.' Therefore, I am of the opinion that the Applicant does not need to petition the North Andover Zoning Board of Appeals for a variance under Section 8.9.3(c)(vx I). Sincerely, Gerald A.Brown, Inspector of Buildings/Zoniag Enforcement Officer cc: Mark Rees,Town Manager Curt Bellevance,Community Development Director Eft dith M.Tymon,Town Planner Thomas J.Urbelis,Town Counsel 1600 Osgood Street,Building 20,Suite 2-36,North Andover,Massachusetts 01845 Dhnno 07A RAA OSA; Cnv 07A AAR QQ9 Wnh WWW 1numnfnnAnndn V&f Mfr E JUN 18 2009D AFFIDAVIT OF LIZETTA M. FENNESSY BOARD OF APPEALS I,LIZETTA M. FENNESSY, HEREBY SOLEMNLY AFFIRM AND DECLARE 4 y UNDER THE PENALTIES OF PERJURY AS FOLLOWS: J, M name is Lizetta M. Fenness �ct I saw a copy of a MetroPCS attack on my position only three days ago. To this date neither MetroPCS nor any of its representatives has sent me a copy of that document. As I understand it, I should have a fair opportunity to respond to such an attack. I can hardly do that if MetroPCS does not share its allegations with me.. My home is located at 77 Elm Street,North Andover.. My home is approximately 65 feet from the Trinitarian Congregational Church property. I have lived in my home continuously since late 2002, when I purchased it. I grew up and lived in North Andover on Main Street very close to my present home from 1983 to 1997. At the time I purchased my property, I became very familiar with it and with information concerning it,to include its price,the prices of nearby similar properties, its assessed value, and the taxes levied on it. I have continued to maintain such knowledge and information concerning my property and other nearby similar properties. It is my opinion,based on my particular knowledge of and experience with my own property that the location of cellular antennas about 65 ft from my property has now and will have in the future a seriously detrimental effect on the value of my property, and that this result is directly contrary to the protectios of the setback provisions of the bylaw for residential districts,to include, specifically,my residential property. I have been and am aware of the Zoning Bylaw of North Andover as it relates to the residential zone in which I live. I relied on those zoning bylaws when I acquired my property and still do. Among other things,the price I paid for my property related to the fact,under the Zoning Bylaw,that my property was located in a residentially zoned area without any allowable commercial uses. Based on my particular knowledge of my property and also on professional real estate appraisals submitted at the public hearing before the Planning Board on the MetroPCS application to construct wireless communication facilities in the steeple of the Trinitarian Congregational Church, it is my opinion that the value of my property is adversely affected compared to its value otherwise by the location of a commercial enterprise only 65' from my property. The Zoning Bylaw, which is established to protect me and my property, and to give rise to expectations of how my property may be used and how others located in North Andover may affect my property. How do I not have standing as MetroPCS alleges. If I don't, who does? I am 65 ft from that church. I am one of the closest abutters. What goes on on my property is a very serious matter to me. I grew up in this town, and I moved back in 2002,after the 600 ft setback was enacted(and applied by previous Building Commissioners). I moved to this neighborhood with the understanding that I was moving onto a residential Street: houses and a church. A town where there were zoning bylaws to protect residents, zoning by laws that keep certain activities away from other activities. Businesses away from homes. Now the character of the church is being altered,there is business inside the church and I thought I was moving to a place where our laws were upheld. I relied on and rely on that. I have invested a lot of time and effort in my neighborhood, since 2003, with the Community Preservation Committee,to enhance this neighborhood. I consider altering the church from a place of worship(see the bylaw)to a commercial telephone exchange to be a change in the neighborhood that impacts me directly, my family, and my property.. Trying to get new sidewalks on the street,and street signs. It impacts me. And when someone tries to put a business operation,with commercial equipment and a potential fire hazard, 65 ft from my house, that impacts me and the value of my property unfavorably. I am concerned about my property value. I have no faith in the MetroPCS property values report. It does not state what each buyer knew when purchasing their home. It does not state what a prospective buyer knows should he otherwise if he wishes to purchase my home. You can see the antennas thru the louvers now(which have already altered the character of the steeple).. All someone has to do is stand on my front porch, look at them and they likely would decide not to buy my house at what would otherwise be a fair price. So where am I then?I'm aggrieved by the decision of the the Building Inspector which misreads what is clear in the bylaw. MetroPCS also thinks my past statements help them. This is nonsense. My past statements aren't relevant. I am not the decision maker here. The Telecommunications Act might prohibit boards from taking environmental effects into account in considering siting requests. I am not acting as a local board member. I am not asking this board to make any decision on environmental effects. I am just asking the Zoning Board of Appeals to apply the law as adopted by Town Meeting, as approved by the Attorney General, and as reaffirmed at the recent Town Meeting. The TCA does not trump my right to say what I want to say. Or that of MetroPCS. It does not trump the First Amendment. My application to this board does not mention environmental or health effects. That's a MetroPCS ploy to divert your attention from what the bylaw actually says. They have no response to the only issue before you. I live within 600 ft of the church tower. I am clearly within the area the bylaw regulates. SIGNED UNDER THE PENALTIES OF PERJURY ON THIS 18TH DAY OF JUNE, 2009. 4izttaQ�Fenrles�y a An U1 � LS 0 ,1 ok' 182009BOA,- APPEALS r Ju►v ?009 J� May 15, 2009 77 Elm Street North Andover, MA 01845 Gerald Brown Zoning Enforcement Officer 1600 Osgood Street Building 20 Suite 2-36 North Andover, MA 01845 Attention: Zoning Enforcement Officer This letter is written with respect to the case of the MetroPCS proposal to install wireless antennae in the steeple of the Trinitarian Congregational Church located at 72 Elm Street. In accordance with Chapter 40A,Section 7 of the Massachusetts General Laws, I hereby request that you enforce the Town of North Andover Zoning Bylaw with regard to wireless facilities,Section 8.9 3)c)v) (1),which states: v) Setbacks All wireless service facilities and their equipment shelters shall comply with the building setback provisions of the zoning district in which the facility is located. In addition,the following setbacks shall be observed. (1)In order to ensure public safety,the minimum distance from the base of any ground-mounted wireless service facility to any property line, shall be 2x the height of the facility/mount, including any antennas or other appurtenances. 'This set back is considered the"fall zone". A minimum setback of 600 feet shall be required for all wireless devices, antenna and their mounting structures, whether attached to a new or existing structure,as measured from the adjacent property line of properties which are either zoned for,or contain,residential and or educational uses of any types. On March 3,2009,the Town of North Andover Planning Board issued a special permit for this proposed installation,in violation of Section 8.9 3)c)v)(1)of the town's bylaw. In accordance with Chapter 40A, a building permit cannot be issued for projects that violate the zoning bylaw,without a variance from the ZBA. Therefore, in this case you are required to enforce the bylaw and deny a building permit. I look forward to your notification, in writing,of any action or refusal to act,and the reasons therefor, within 14 days of your receipt of this request,as required by Chapter 40A,Section 7. Thank you for your prompt attention to this matter. Sinc ely, 1 Lizetta M. Fennessy C: Zoning Board of Appeals;Attn:Chairman Alfred Manzi III pOR7y t� y A 0 0 Alt �RSSACHU t� BUILDING DEPARTMENT Community Development Division May 19, 2009 Lizetta M. Fennessy 77 Elm.Street North Andover, MA 01845 Re: Metro PCS Facility at Trinitarian Congregational Church on Elm Street Dear Ms. Fennessy: I am writing in response to your letter to me dated May 15, 2009. You have requested that I enforce the North Andover Zoning Bylaw and deny a building permit to Metro PCS to install a wireless facility in the steeple of the Trinitarian Congregational Church on Elm Street. Your request for the denial of the building permit is denied for the following reasons: (1) Pursuant to Mass. General Laws Chapter 40A, Section 7 and Section 10.1 of the North Andover Zoning Bylaw, I am charged with the enforcement of the North Andover Zoning Bylaw. Your letter cites Section 8.9.3(c)(v)(1) and the 600 foot setback referenced therein as your alleged grounds for the denial of the building permit. With regard to that section of the bylaw, on December 3, 2008,I wrote to the North Andover Planning Board and stated in part: "The aforementioned Section does not apply to the proposed installation at the Trinitarian Congregational Church of North Andover, as the proposed antennas will be installed within the existing church spire. Furthermore, Section 8.9.3(c)(v)(2) reads in part: . . . `In the event that a preexistent structure is proposed as a mount for a wireless service facility, the setback provisions of the zoning district shall apply. In the case of the preexistent non-conforming structures, wireless service facilities and their equipment shelters shall not increase any non-conformity.' 1600 Osgood Street,Building 20,Suite 2.36,North Andover,Mossochusetts 01845 Phone 978.688.9545 Fox 978.688.9542 Web wwwjowoofnorthandover.com Therefore, I am of the opinion that the Applicant does not need to petition the North Andover Zoning Board of Appeals for a variance under Section 8.9.3(c)(v)(1)." That statement was my interpretation of the Zoning Bylaw and was my opinion then, and it is my interpretation of the Zoning Bylaw and my opinion now. The Church is a "preexistent structure" as referenced in the bylaw. As required by Section 8.9.3(c)(v)(2), the project is in compliance with the setback provision of the applicable zoning district. (2) Section 8.9.3(b)(i)of the Zoning Bylaw states in part: "Location: .Applicants seeking approval for wireless service facilities shall comply with the following: i) If feasible, wireless service facilities shall be located on preexistent structures, including but not limited to buildings or structures, preexistent telecommunications facilities, utility poles and towers, and related facilities, provided that such installation preserves the character and integrity of those structures." (emphasis supplied) Therefore, it is clear that the Bylaw r wires ("shall comply"), if feasible, the location of a facility such as proposed by Metro PCS, upon a preexistent structure such as the steeple of the Trinitarian Congregational Church. (3) On March 3, 2009, the North Andover Planning Board approved a Wireless Special Permit for the subject facilities, with detailed Findings of Fact in their decision including: "12. Neighbors and other citizens in opposition to the project submitted documentation in support of their position. However., the Planning Board believes that the applicant has demonstrated compliance with the Town of North Andover Zoning Bylaw requirements for this application." You and others have appealed the Planning Board decision by filing a complaint in Essex Superior Court against the Planning Board, the Church and Metro PCS contending that the section of the bylaw you referenced requires a 600 foot setback. That litigation is currently pending. However, M.G.L. Chapter 40A, Section I1 states in part: "The person exercising rights under a duly appealed special permit does so at risk that a court will reverse the permit and that any construction performed under the permit may be ordered undone." Therefore, the building permit as requested by Metro PCS will not be denied on the basis of the pendency of the litigation on your appeal of the special permit approval or on the grounds you contend in the litigation. (4) In its Findings of Fact the Planning Board also stated: "9. The applicant has demonstrated that the proposed wireless facility will be in compliance with FCC regulations regarding Maximum Permissible Exposure (WE)limits, as indicated by the submittals and reports referenced at the end of this decision in Condition #16. The Telecommunications Act of 1996 prohibits this Board from taking health effects of RF transmissions into account beyond FCC requirements. 11. The application was reviewed by a consultant retained by the Planning Board Mark Hutchins, a certified radiofrequency engineer, who verified that the application is in compliance with the Federal Communications Commission (FCC) standards and that the application complies with the town of North Andover's bylaw with regard to RF engineering issues, including but not limited to the following: • The determination that a significant gap in coverage exists. • The determination that no alternative sites are available and technically feasible to close the coverage gap." In accordance with the Planning Board's Findings, and the certification by the Board's radiofrequency engineer, and the previously stated reference to M.G.L. Chapter 40A, Section 11, the building permit will not be denied on the grounds you alleged. (5) The Federal Telecommunications Act of 1996 provides that local governments may not "prohibit or have the effect of prohibiting the provision of personal wireless services." The Planning Board found that the Federal Act prohibited consideration of health effects beyond FCC requirements, that a significant gap in coverage existed, and that there are no alternative sites which are available and technically feasible to close the coverage gap. If I were to grant your request on the grounds you have specified I would prohibit the provision of personal wireless services, in violation of the Federal Act, and I respectfully decline to violate that Act. For the foregoing reasons your request is denied. Very truly yours, Gerald A. Bro n cc: Metro PCS Trinitarian Congregational Church Board of Selectmen Planning Board Zoning Board of Appeals Mark Rees Curt Bellavance Judy Tymon MCDEBMOTT, QUILTY & MILLEB LLP 131 OLIVER STREET - 51H FLOOR N"` BOSTON, MASSACHUSETTS 02110 T E LE P H ONE: 617-94(3-4600 FACSIMILE: 617-946-4(324 June 10, 2009 Zoning Board of Appeals Town of North Andover 1600 Osgood Street North Andover, MA 01845 Re: Appeal of Lizetta Fennessey 70 Elm Street,North Andover Application of 600' Setback Dear Members of the Board of Appeals: This letter is to set forth the position of MetroPCS with respect to the appeal of the building inspector's decision on the request for enforcement brought by Lizetta Fennessey. At the outset, I will to remind the Board that in order to pursue her appeal before this Board, Ms. Fennessey must have standing under Chapter 40A §8. She asserts her standing by the mere virtue of being an abutter to the church. However, her status as a "party in interest" grants her only presumed standing, and it is rebutted with presentation of evidence warranting a contrary finding. Standerwick v. Zoning Board of Appeals of Andover, 447 Mass. 20, 34 (2006). I offer that evidence in the following attached documents: Tab A—Affidavit of Frantz Pierre, radio frequency engineer for MetroPCS Tab B — Complete copy of minutes of public hearings on MetroPCS zoning application Tab C —Report of Real Estate Appraiser Tab D —Report of independent consultant for Planning Board Tab E —News articles regarding MetroPCS application Tab F—Memorandum from town counsel These documents comprise a substantial portion of MetroPCS's Motion for Summary Judgment filing which will be presented to the Essex Superior Court in the coming months. They contain evidence to support the following facts: 1. The proposed wireless installation is invisible to the public due to its interior installation. 2. The Fennesseys' statements to the Board in opposition refer to their concerns about the potential health risk of exposure to RF emissions. JUN I to ?009 L, BOARD 0f APPEALS Zoning Board of Appeals June 10, 2009 Page 2 3. A real estate appraisal report indicates there will be no adverse effects on the real estate values of nearby residences. 4. The Planning Board's independent consultant confirmed that(a)the facility will comply with FCC regulations on RF emissions, and (b)the facility is necessary in order to fill a significant gap in coverage that cannot be filled from the Stevens Estate location. 5. Ms. Fennessey has made public statements in news articles reiterating her opposition to the facility based upon health concerns. 6. Town counsel has warned the wireless bylaw committee (upon whose position Ms. Fennessey relies for her appeal)that there must be a legitimate zoning-related rationale for applying the 600' setback to this type of installation. Absent her(obvious) opposition to the facility on the basis of health, Ms. Fennessey is hard-pressed to assert some other basis for standing that the zoning bylaw is intended to protect. Standerwick, supra at 30 (standing is conferred "only on those who can plausibly demonstrate that a proposed project will injure their own personal legal interests and that the injury is to a specific interest that the applicable zoning statute, ordinance, or bylaw at issue is intended to protect"). Only such an interest would permit her either to appeal Mr. Brown's decision to you or to appeal your determination to court. Green v. Board of Appeals of Provincetown, 404 Mass. 571 (1989). Regarding the merits of Ms. Fennessey's appeal, I would reiterate what Mr. Brown points out in his reply—that the legal claim made in Ms. Fennessey's appeal is already the subject of her lawsuit against the Planning Board, and therefore ought not be litigated twice in different actions. As Mr. Brown points out, MetroPCS's building permit is "at risk," as the statute provides, specifically to prevent frivolous claims such as Ms. Fennessey's from interfering with the property rights of others. Mr. Brown's response covers the substance of the bylaw sufficiently that there is no purpose in reiterating his explanations here. But there are two points to which I would like to add additional information: (1) When considering whether or not the 600' setback should apply to all wireless facilities of any kind, one must determine first whether the setback is a dimensional one relative to structure, or one that is intended to apply generally to the wireless use. The legitimate zoning purpose of setback requirements is to protect legitimate concerns for "safety, aesthetics, and privacy." Petrucci v. Board of Appeals of Westwood, 45 Mass. App. Ct. 818, 826 (1998). Is the purpose of the 600' setback to address a safety, aesthetic of privacy issue related to the physical aspect of the wireless structure, or is it simply to keep all Zoning Board of Appeals June 10, 2009 Page 3 wireless facilities away from certain areas,without regard for their impact on the interests that the zoning bylaw is intended to protect? The installation for which the special permit was issued is not subject to any structural setbacks, not just because it is an attachment to an existing building (as the building inspector has ruled), but more importantly, because all of the elements of the installation are contained within the existing church structure. The installation is undetectable to the human senses, except for the mere knowledge (by some)that the facility exists. So one would have to ask, what safety, aesthetic or privacy issue is raised by its presence? There is none. The application of a setback limitation to it could have no other conceivable purpose other than to restrict the wireless use. (2) Without taking anything away from the ardency of Ms. Fennessey's advocacy, it is an unavoidable fact that the Telecommunications Act of 1996, and the federal court in this judicial district compel the building inspector,the planning board and this board to interpret the North Andover Zoning Bylaw in a manner that is consistent with the Act. See,Nextel Communications of the Mid-Atlantic v. _ Town of Wayland, 231 F. Supp. 2d 396 (2002); Omnipoint v. Town of Lincoln, 107 F. Supp. 2d 108 (2000). Under than injunction, it is necessary that the zoning bylaw not be interpreted or applied so as to regulate wireless facilities on the basis of radio frequency emissions. Roberts v. Southwestern Bell Mobile Systems, Inc., 429 Mass. 478, 482 (1999): There may be no regulation of facilities "on the basis of the environmental effects of radio frequency emissions," other than as required by the Federal Communications Commission (FCC). 47 U.S.C. § 332(c)(7)(B)(iv). In that regard, it really is irrelevant what the town meeting or the wireless bylaw committee "intended"the 600' setback to mean. It is important what it was intended to do, because if its intent was to advance a purpose that is in violation of federal law,then it cannot be enforced under any circumstances. It could not be clearer from the history of this matter, and from the public statements made by Ms. Fennessey and her cohorts,that the purpose of the 600' setback is to "protect" people from the allegedly harmful effects of radio frequency emissions. This purpose is plainly illegal, the setback is unenforceable for that purpose, and North Andover's town counsel, Thomas Urbelis,has cautioned the members of the wireless bylaw committee repeatedly about this, to no apparent avail. It is only right that the Planning Board members showed the circumspection and wisdom to listen to town counsel and act in accordance with the law. Zoning Board of Appeals June 10, 2009 Page 4 All sides of this issue can agree that it is regrettable that so much vituperation is generated by this case specifically and the issue generally. There is room for honest disagreement in this matter; but there is no room for lawlessness in the exercise of municipal police power. That, we believe, is what Ms. Fennessey is asking you to engage in. We are confident that town counsel has provided you with appropriate advice, and trust that the Board will act accordingly. Thank you for your attention. Very truly yours, /S/ Peter B. Morin COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT NO. 2009-559-C MARTHEA FOURNIER, et als. PLAINTIFFS V. JOHN SIMONS, et. als. DEFENDANTS AFFIDAVIT OF FRANTZ PIERRE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Now comes FRANTZ PIERRE, affiant, and makes the following statements under the pains and penalties of perjury: 1. My name is Frantz Pierre. I have personal knowledge of all statements made herein. 2. 1 am a radio frequency engineer for MetroPCS, Inc., Inc., responsible for radio frequency design in Massachusetts. One of the sites I was responsible for designing is the proposed location at issue in this lawsuit, an installation inside of an existing church steeple located at 70 Elm Street,North Andover. 3. 1 am thoroughly familiar with all of the facts relative to the decision to seek permitting for the location at issue in this lawsuit, including the evaluation of alternative sites in the vicinity, the presentation of all factual information pertaining to this site before the North Andover Planning Board, and the conduct of the public hearings by the Board, at which I was present at all times. 4. MetroPCS, Inc., the defendant in this lawsuit and the applicant before the Planning Board, operates a communications venture committed to providing integrated wireless personal communications services ("PCS") by building wireless networks in specified markets across the United States under license purchased from the Federal Communications Commission ("FCC"). One of those market areas is in Eastern Massachusetts and includes the Town of North Andover. 5. Mobile telephones using PCS technology operate by transmitting a radio signal to antennas mounted on a tower,pole, building, or other structure. Because the PCS system has a lower signal and a much higher frequency than traditional cellular technology, the range between the PCS mobile telephone and the antennas is limited, and the antenna must be placed at a sufficient height to achieve a"line of sight" between one antenna and the connecting antenna. 6. North Andover is an area where metroPCS has identified a need to locate a wireless communications facility. A wireless telecommunications facility in this vicinity is necessary to provide coverage in the area and resolve a significant gap in metroPCS' wireless network. 7. I have reviewed the accompanying application for the proposed installation of a wireless communications facility at 70 Elm Street,North Andover. I have analyzed the potential benefits this site would represent to the metroPCS network and its users through radio frequency propagation modeling. I employ computer simulations, which incorporate the results of field tests of existing facilities, to determine radio frequency (RF) coverage for the metroPCS system, and to identify gaps in coverage. These simulations model characteristics such as antenna type, antenna height, output power, terrain, ground elevation and RF propagation effects of the frequency utilized. 8. An evaluation of the proposed location has indicated that an antenna height of 80 feet above ground level (AGL) at this location is required to satisfy the coverage requirements for metroPCS' Network. Any reduction in the proposed height and/or antenna configuration would result in coverage footprint shrinkage. This significantly limits the site's effectiveness in connecting with surrounding sites and severely impacts the level of service metroPCS is attempting to provide. Changes to the site configuration would limit the site's ability to resolve a significant existing coverage inadequacy in North Andover. 9. In seeking an appropriate location for a cellular site in North Andover, MetroPCS first sought to identify existing structures, in order to minimize visual intrusiveness and to comply with the requirements of the zoning bylaw. After 2 conducting an extensive search of all areas, MetroPCS determined that the least intrusive means of providing wireless service was to install a facility within the interior of the existing church steeple at the Trinity Congregational Church, which is located in a residential zone. 10. Because of the topography and tree canopy in the area,we determined that antennas in the steeple at a centerline height of 80'feet in the residential zone would provide more reliable service than the only available alternative, which was the possible erection of a second tower at a height of 150' upon land owned by the town of North Andover known as the"Stevens Estate." 11. I examined the Stevens Estate alternative and found that although it adequately linked to the South Lawrence facility, it nevertheless left a significant gap in coverage for a substantial portion of the residential neighborhood sought to be served with wireless service. This finding was supported by the independent consultant hired by the Planning Board to review my network design. 12. There is one portion of the coverage area that the Stevens Estate location would provide coverage to that the church location does not. For that reason, MetroPCS would prefer to have installations at both locations. This is also the preference for one of MetroPCS's competitor's, T-Mobile USA. My conclusion was also supported by the independent consultant for the town. 13. We also examined the feasibility of two existing smokestacks located a short distance from the church steeple, but those structures were not available for leasing. 14. MetroPCS's proposed facility comprises the installation of three panel antennas inside of the church steeple,hidden behind louvers designed to match the existing building components of the steeple. Cables would run down the inside of the steeple to an equipment room that is secured from entry by unauthorized persons. 15. I have been responsible for installations similar to that proposed for this church, and I have observed those installations after they have become operational. Based upon my personal observations,these installations are invisible to the public from the exterior of the building. 16. It is a usual practice of wireless facility site acquisition personnel to attempt to locate wireless facilities within or upon existing structures, such as church steeples, that provide sufficient elevation for wireless antennas to be effective, because such placements eliminate the need for new and free-standing steel monopole structures of greater height and are therefore the preferred alternative to municipal permitting authorities and the general public. 3 17. In the course of my 11 years of work as a radio frequency engineer in the wireless industry, I have personally seen at least 300 wireless installations across the New England landscape. It is my opinion, based on those observations and the examination of this proposed site, that the proposed facility at issue in this law suit is one of the least intrusive wireless installations I have seen. Signed and sealed this 21 day of April, 2009 under the pains and penalties of perjury. Frantz Pierre 4 DRAFT l Town of North Andover kV 2 Planning Board 3 Minutes of the Meeting 4 December 2, 2008 5 Town Hall, 7:00 PM 6 7 8 Members present: John Simons, Chairman 9 Richard Rowen,regular member 10 Timothy Seibert,regular member 11 Michael Walsh,regular member 12 Courtney LaVolpicelo, alternate 13 14 Member absent Jennifer Kusek, regular member 15 16 Staff`present: Judy Tymon, Town Planner 17 Mary Ippolito, Recording Secretary 18 19 20 21 Chair called the meetingto order at approximately 7:10 PM. 22 23 Chair announced the following POSTPONEMENTS: 24 25 • John Cahill-1.66 Salem Street,Map 371),Parcel 21. Definitive Subdivision known as 26 The Captain Nathaniel Berry Homestead,consisting of a new 292 foot long roadway and 3 new 27 proposed lots each containing 25,000 s.f. &existing lot containing 32, 174 s.f. with existing 28 single-family dwelling within R-3 zoning district. Meetins not closed. Waiver on file until Feb 29 of 2009 30 31 • John Cahill—166 Salem Street,Map 37D,Parcel 21.—Watershed Special Permit to 32 construct a new 292 foot long roadway and 3 new single-family homes,portions of the roadway, 33 one house and a storm water detention/infiltration basin will be within the non-discharge buffer 34 zone.Meeti not closed.Waiver on file until Feb of 2009 35 36 • 674 Turnpike Street, Theodori Lon4 Site Plan Review Special Permit to allow 37 for demolition of a 2 story residential dwelling in order to construct a 2,800 s.f. 38 Commercial building consisting of 1,400 s.f restaurant and 1,400 s.f retail within CDD2 39 _ zoning district. Waiver on file until Dec. 16,2008, PD will request a new waiver. 40 41 • Discussion only with Merrimack Valley Planning,Dennis DiZolio discussion 42 regarding"Priority Growth Strategy". 43 44 45 Chair called for the following DISCUSSIONS: 46 47 • Town of North Andover,propose to construct a modular school, 13K s.f. 48 adjacent to the Atkinson School within R-4 zoning district. Ben Gary, Engineer presented Page 1 PB Minutes of the Meeting December 2, 2008 DRAFT 1 landscaping plan tonight. Will save trees at closest comer to Chickering Rd.,.added 2 evergreen,red maple for shade and planting in front of building, seeding will be done. 3 Foundation will be a crawl space. Keep stripes on parking lot for now. 4 5. Town has a short time frame to get ready for 2009 school year. Modular building will be 6 assembled at the location. Pat Saitta present tonight. Sargent and Franklin has approx. 7 7 or 8 classes of pre school children. $4M budgeted for this project. Ben Gary presented 8 proposing to use existing wooded area to place new Pre-K school. Right tum only 9 'coming out onto Chickering Rd. Over 100 feet from,wetland.. Looped around driveway 10 for buses to drop off and for parents to pick up. Diverting catch basin for flow. Internal 11 drains for roof and premiter drains. Hydrant to be close to the school at comer of 12 building. Gas and electric connected. Security lighting presented. Play equipment for 13 the children enclosed in a fenced area.At 400 feet located a swail around building from 1 14 foot to 4 feet to catch over flow form catch basin. . 15 16 . Judy submitted a letter for the record from Ben Gary to Gene Willis dated December 1, 17 2008 ....see item 2 regarding drain pipe, Mr. Gary will redesign access and confirm exact 18 location to avoid problems. Gene Willis doesn't want them to pick up 12-inch pipe: and 19 keep other pipe at 15 inch. Clean out and make sure Mr. Gary has extra clean out and all 20 of this will be incorporated into the site plan. 21 22 23 MW asked what is traffic flow? Dismissal times at adjacent schools are between 2:10 24 PM and 2:40 PM won't affect the traffic flow of the Pre-K School, not much congestion 25 only about 6 cars use this area now. Submitted picture for the record. Pat Saitta 26 explained the look of the exterior of the school. Flat roof,roof top air-conditioning units, 27 elevation of roof was discussed. Chair will issue a letter saying we find this to be a good 28 project we recommend the following.......as they go thru the development process, issue 29 this letter at next PB meeting. 30 31 Eric Asvestas, 36 Water Street,will parents have to pay for this? It was explained to Mr 32 Asvestas that there are special needs students and role model students;role model 33 students have tuition requirements and limited amount of spots available for a monthly 34 fee. 35 36 37 Chair called for the following discussion: 38 • Boston Hill project,Turnpike Street,Paul Marchionda is making refinement 39. to site layout and building design and address concerns with parking and building 40 massing. 41 42 Paul Marchionda presented;parking in front of building and size of building itself are 43 issues tonight. 25 feet lay out line from edge of Rte. 114, grading out base of 5 feet high 44 wall, limited with build out because of Con/Con issue. Will landscape parking lot to 45 dress up site from the street. Building is only one elevation. Paul Shatenau,Architect, 46 stated common space is located on first floor because it's easily accessible. He finds that Page 2 PB.Minutes of the Meeting December 2, 2008 DRAFT 1 when you break it up it makes it more complicated for the residents. Applicant stated he 2 will reserve some parking space for future use. Judy wants as much landscaping in the 3 front area disbursed among parking spaces. Make more landscaping at unused parking 4 spaces in front. Dermott Kelly will submit a traffic study. Phase one is now done. 5 6 7 Chair called forBOND RELEASE: 8 9 • Brooks School, 1160 Great Pond Road, Site Plan opening bond $l OK and 10 Watershed Special Permit bond$2K constructed a science building. As-built and letter 11 from Engineer submitted. Applicant wishes to donate this cash bond to the Town of 12 North Andover. Judy read a letter from the headmaster of Brooks School who graciously 13 wishes to donate their$12K back to Town as a gift. Chair stated let the Tribune know. 14 PD submitted letter from engineer and as built was submitted, no issues with DPW 15 Engineers. Motion by MW to release and close out Performance G bond for$12K, 2nd by 16 RR, vote unanimous 5-0. 17 18 19 20 Chair called for CONTINUED HEARING: 21 22 • Bank of America, 154 Main Street, Map 41, Parcel 33 =Site Plan Review 23 Special Permit to expand existing parking by removing the rear drive-through aisle and 24 increase the parkingarea to accommodate an additional six parking spaces for a total of 25 18 parking spaces within G-B zoning district. Meeting not closed. Decision drafted. 26 27 Judy drafted decision PB reviewed it....edits ...numbering is off 1 &2 and jumps to 5.... 28 Say after completion of construction .... 29 30 Motion by MW to close public hearing 2nd by RR; vote was unanimous 5-0. 31 32 Motion by RR,to approve a Site Plan Review Special Permit as amended, 2nd by MW 33 vote was unanimous 5-0. 34 35 36 Chair called for NEW PUBLIC HEARING: 37 38 • Metro PCS, 70 Elm Street, Special Permit,proposes to install 6-panel antennas 39 at a centerline of 80' in existing church steeple and related BTS cabinet within R-4 40 zoning district. 41 42 Judy explained this is a Public Hearing for a SP required by wireless bylaw for 43 installation of any wireless facilities. Board member Tim Seibert stated he will recuse 44 himself from sitting on the Board and moved into the audience. Plse. note: now 45 there is only Simons, Rowen, Walsh and Courtney to hear this petition. Chair .' 46 explained the procedure relative to this hearing. Page 3 PB Minutes of the Meeting December 2, 2008 DRAFT 1 _ . 2 Atty. Karen Simao was present to represent Metro PCS tonight. In the event that Atty. 3 Simao doesn't continue then Atty. Peter Morin will be here to do so. Bill McQuade, 4 consultant, Mathew Boles, consultant, and Franz Pierre, RF engineer are also present 5 tonight. Donald Hayes, was not available this evening. Mr. Mark Hutchings, RF 6 Engineer, will be doing a safety report obtained by the Town. Time is 8pm. 7 8 Mr. McQuade spoke proposing to mount antennas behind louvers, in line of 80 feet in 9 church, equipment placed in basement, only replaced louvers, other than that no other 10 exterior changes. Chair asked what is coverage gap,what is need, etc? 11 12 Mr. McQuade submitted waivers tonight, and has alternative structure report to submit. 13 which were not included in PB packet. 14 15 RR asked is the church well aware of what is being proposed? Mr. McQuade stated yes. 16 17 Franz Pierre demonstrated where the gap in coverage is, with colored dots. Look at white 18 area there is no coverage, green is where proposed coverage will go. Next page shows a 19 very large green area with coverage, with one small area 70 Elm St. where church has no 20 coverage at all,by connecting the dots on the sites it provides more coverage. Next map 21 showed once the church is connected to the green area an entire area will have coverage 22 to Town of North Andover and connecting to other Towns. 23 24 Judy asked if there may be other carrier facilities in the area, and if they provide Metro 25 PCS with coverage? W. Pierre stated other carriers are flagpole on top of hill on Rte. 26 #125, Stevens Estate, this pole is full, and there are 3 other carriers on this pole and no 27 more can co-locate there. Judy asked if frequency band is covered by another wireless 28 facilities? Mr. Pierre stated Spectrum. ,29 30 Mr. McQuade said no ground space is available for Metro PCS. Smoke stack located 300 31 yards from 70 Elm Street church; its not commercially available landlord has no interest. 32 It's more preferable for a concealed facility versus a brand new tower facility. 33 34 Judy stated VHB will do a review, and Mark Hutchings, an RF Engineer will also do a 35 review of Dr. Hayes report, coverage analysis, and alternative analysis. Mark Hutchings 36 was recommended by VHB and received a scope of work and estimate which will be paid 37 for by the applicant. Hope to have this ready for next PB meeting. The Telecom. Act of 38 1996 says health cannot be taken into consideration. Dr. Hayes will attend a community 39 meeting Monday(December 15),however,location of meeting was not discussed? 40 41 MW asked does this application agree with the guidelines? Atty. Simao stated 42 absolutely. Mr. Pierre stated based on Dr. Hayes report stated RF is less then 1 10th of a 43 percent,which is below the FCC guidelines. See report for the record. 44 45 RR asked where do you measure? Mr. Pierre stated measure at a building do it 90 days 46 after installation to take measurement. RR asked show a diagram of strongest signal and Page 4 PB Minutes of the Meeting December 2, 2008 DRAFT 1 vertically show significant drop off and show how radiation map changes horizontally 2 and vertically. Mr. Pierre stated in Dr. Hayes report on page 8 it shows distance of 3 horizontal. RR wants to see the vertical? Mr. Pierre stated he has this information in Dr. 4 Hayes packet. 5 6 Judy stated does installation fall within FCC guidelines? Our engineer will do a report. 7 8 Chair wants the waiver request explained. Mr. McQuade submitted waiver for Site Plan 9 Review, see waiver submitted. 10 11 Judy met w/Chair person of Historic Society Kathleen Szyska,regarding alteration being 12 excluded from review,.they looked at information brochure and they want to see a piece 13 of that equipment to discuss request for exclusion from review and take action at that 14 meeting. Mr. McQuade requested a determination from Building Inspector in the mail on 15 November 6`h,now Con/Com wants to have a review. He will send a sample of the 16 material to the office in a week and Mr. McQuade will attend the meeting on Dec. 15th 17 Chair spoke on regulation of wireless facilities. North Andover has a bylaw in place to 18 do this for visual and safety impact regarding freestanding structures and towers in place 19 and filing requirements etc. There is preference to co-locate versus building a new 20 wireless structure etc. Atty. Tom Urbelis provided a set of checklists for PB and carrier 21 and applicant has to provide information in their application etc. 22 23 Cindy Allen, 45 Elm St., applauded at what has happened,this came up a few years back, " 24 went before PB at this church and they dropped the idea of putting cell antennas in, so 25 she knows that health can't be taken into consideration, she.finds that for every one study 26 presented there are no health effects, she can also find another study that says there is 27 health effects. 15 years after putting these antennas in a variety of places,now we have 28 to pull them out. Number of studies going on now,people need to understand the facts. 29 You can take into-account property value,if you have two houses of equal value one is 30 opposite church without cell tower, other proper has a cell tower, which are you go to 31 choose? Buyers want to know if there are cell towers in close proximity this needs to be 32 disclosed. It's within the PB's consideration to take into account property value. 33 34 Chair stated if property value will diminish then the PB needed to see documentation 35 specifically stating the property value has been dimished. 36 37 Ms Allen.wants to-make the Church aware this is going to alienate the Church, if cell 38 tower was within the Church she would never have sent her son to that Church/school 39 how can the Church'alienate its neighbors? She will picket this on her lawn. She cannot 40 believe the church will have the almighty buck take precedence over almighty God. 41 42 Jim Gordon, 500 Rea St., were trustees of parish aware of changes made to structure? He 43 suggested PB require a certified vote from Board of Trustees authorizing them of making 44 this assertion. When is the discussion of the waiver going to take place? He feels a Site 45 Plan Review of Section 8.3 should be warranted. Chair stated Section 8.9 Special Permit 46 is in front of PB tonight. Page 5 PB Minutes of the Meeting December 2, 2008 5 DRAFT. 1 2 Mr. McQuade stated Stevens Estate has no longer any capacity for Metro PCS to 3 collocate there. 4 5 Mr. Gordon is concerned about this process at Town Meeting, he thinks the Town should 6 be looking at ways to work with people. Property values were brought up tonight- then 7 provide appraisals, the PB might want to look into this, what will be the impact on real 8 estate? Town should be seeking advice on this issue keep nagging at PB and BOS that 9 could be resolved if everyone gets on same track. Cell Tower Committee was organized 10 to look at this issue and nothing came out of it. Nothing coming out of present 11 committee? Someone needs to take charge to address this thru a vehicle and the PB in 12 conjunction w/BOS should come up with something that can or can't-happen regarding 13 these cell tower committees. 14 15 Bill Gordon, 25 Garden St.,what is Metro PCS? Mr. Pierrce stated they have locations in 16 Dallas,New York, Georgia, etc. it's second largest carrier. Mr. Pierre explained the 17 coverage map again. Does Town want another tower there? Mr. McQuade stated the 18 Stevens Estate has no capacity, Town is looking for collocation on existing structure, 19 Town is not looking for new towers. Mr. Gordon stated it would be a good thing to 20 investigate why Metro PCS is taking easy way out and it's gong to have a greater impact 21 on the Town if they put cell antennas in the Church. Bylaw regarding residential setback 22 how many feet? Church doesn't meet setback issues? it's pre-existing non conforming. 23 Mr. Gordon submitted written lawyers opinion to Judy for the record tonight. 50 children ( 24' in this neighborhood living in this area and living within 300 feet of this cell tower. 25 Abutters list is incomplete. Raised health as issue because of cell tower's interpretation 26 of the wording he knows of 100 signature petition who are not in favor of this . 27 application. 28 29 Thea Fournier, 247 Main St., Town has a right to site where antennas and cell towers will 30 be placed., and can't prohibit cell tower coming into this Town. Documentation from 31 realtors indicates there is 10 to 30 percent in devaluation of property value once tower 32 goes into effect. Mix up of interpretation of bylaw,two churches turned down antennas. 33 Mass Ave. church passed thru Building Inspector saying it was pre-existing,his 34 comments are illegal? Please note that Ms Fournier's further comments were not audible. 35 36 Chair asked Thea to put this in writing, give this to us now or later? Thea stated 600 feet 37 setback should be required, whether it be a church or not. 38 39 Chair said put this in writing and we'll have attorney review it. Gerry Brown has 40 authority to make a determination,which was not appealed. Chair advised Thea to make 41 the argument in writing and have an attorney do it for her. Thea thinks this is a legal 42 issue. 43 44 Liz Fennessy, 77 Elm St., submitted a letter to Judy, if abutters were not properly notified 45 what is protocall? Judy presented a certified abutters list which was certified by the Page 6 PB Minutes of the Meeting December 2, 2008 G DRAFT 1 Assessor and dated 2008. Judy also had the packet of certified mail receipts stamped by 2 U.S. Postal services as proof that certified mail was sent to each abutter on the abutters 3 list. 4 5 Ms Fennessy feels bylaw is subject to interpretation and doesn't understand the 600 feet 6 setback. Should this go to ZBA for review? Chair stated he will go to the Building 7 Inspector and ask for interpretation of Bylaw and if anybody disagrees with this they can 8 appeal it. Ms Fennessy feels a new tower should be built at Stevens Estate for the Town 9 to get the revenue instead of collocating it at Elm Street steeple. She wants to know 10 about the December 15'h neighborhood meeting? She only heard about it a-week ago. 11 12 Diana Warren, Wayland, Mass, stated a letter of authorization signed by the church but 13 no lease agreement was submitted? There is no binding contract yet?Chair stated by the 14 time PB makes their decision then that would be able to take place. Ms Warren stated 15 that Town Counsel's analysis is a slanted view from Town Counsel who works for BOS, 16 she urged_PB to hire their own counsel. Chair asked for this in writing. She said she 17 will. You need to know coverage of all other carriers in the Boston area to make a 18 determination. Secton 704 no municipal can inhibit communication services. FCC 65108 19 it's on docket to close loophole, if there are carriers in area that provide service then 20 communication services is being provided, so you don't have to approve Metro PCS then. 21 22 MW asked about prohibiting decimations from one carrier to another? Ms Warren read 23 Dr. Hayes report and found it inaccurate and incomplete. Chair asked.if she is willing to r' 24 submit all of this in writing. She said she will. She said this is not a co-location site. 25 Coverage maps give a false impression,but you didn't get complete documentation. She 26 said they aren't showing a large enough area how far do you go before you hit another 27 Metro PCS facility? She said citizens have to provide reports, lawyers,professionals,but .28 case law indicates under TCA indicating this is not the case. She urged PB to hire their 29 own counsel. Chair asked who would pay for it? 30 31 Chris Lathrop, 27 Church St stated confirm that the smoke stack was not commercially 32 feasible? Wants to see receiving signals on a map. He wants copy of Dr. Hayes report. 33 Mr. McQuade stated that the smoke stack structural analysis was not available because 34 the owner had no interest in leasing to Metro PCS. Mr. Pierre did a study of the gap 35 coverage,but those alternative sites were not available,he showed them on the map 36 . where they were. Chair wants Mr. Pierre to do more due diligence, and look at Stevens 37 Estate to see if there is any appetite to expand it there. 38 .39 Loretta Wentworth, 15 Pleasant St.real estate agent, stated the average consumer today is 40 aware and concerned about health issues, consumer walks away if there is gas line or 41 power line, what is the monitory value to the church? Chair stated they are under no 42 monitory obligation it's a private legal matter. Ms Wentworth stated this is a big issue 43 and will affect property values. 44 45 Eric Asvestas, 36 Water St,. has 4 children and if this goes thru the whole neighborhood 46 will move he doesn't want this in the neighborhood. Page 7 PB Minutes of the Meeting December 2, 2008 `� DRAFT _ 1 2 Diana Warran'.stated the FCC will not look to protect that their standards are being 3 followed in North Andover. Donald Hayes report has very little technical information. 4 She will provide actual reports and PB should ask Metro PCS to provide all of this 5 information. Chair stated we have hired a consultant to handle this. PB should ask Metro 6 PCS to provide technical information, which is required on a State standard level so that 7 Mr. Hutchings will have this information to assess the veracity. Random testing should 8 be done on a random basis by independent engineer. 9 10 Chair thanked everybody for the civil tone of this discussion which makes for a better 11 process; PB is looking for solid verifiable input. Chair announced that the PB will have 12 to meet again on January 6, 2009. PB will not be meeting on December 16th as we won't 13 have the sufficient number of PB members in order to do so. Chair asked Ms Warren if 14 you need to provide information please see Judy. 15 16 Atty. Karen Simao stated that PCS has license by FCC they are charged by FCC to build 17 out their network for coverage sites and NOT capacity sites. Stevens Estate is not a 18 commercially available site,no more room there, it is not available and no RFP was 19 issued and that makes it not available. She obtained a certified abutters list from the 20 Assessor's office,but, Metro PCS would not have gone thru that list and decided who not 21 to send a legal notice to and stated that Ms Warren is a lobbyist. Metro PCS can only 22 provide information in compliance w/existing bylaw and she knows Town wants 23 additional information,but for future decisions Metro PCS will comply with whatever the 24 PB wants them to do,Metro PCS has worked to meet all their requests. Can Judy gather 25 any additional information for the Dec. 15th meeting? 26 27 MW asked who is competition in this area and what is the coverage? Submit coverage. 28 from other carriers in this area. How much RF homework was done on other sites? 29 30 Thea asked why Stevens Estate would not be available to build a tower? Metro PCS put 31 this in writing. Chair will ask if there is any appitite on the part of the Town to do this, if 32 it is limited to one site there? 33 34 Ms Warren stated she is not lobbying she goes to D.C. to educate and inform and 35 illustrate fact that petition is before the FCC that carries under section 7204 -then 36 communications services are being provided. Time is 9:50 pm. 37 38 Chair asked Judy to check w/Tom Urbelis on this stuff,Ms Warren needs to submit her 39 argument in writing when she criticized Atty. Urbelis. 40 41 IMPROMPTU DISCUSSION: 42 Chair discussed that National grid wants to take down trees but some trees do not need to 43 be cut down,put public pressue or e-mail Mark Rees. If more people are opposed it will 44 tighten up. 45 46 Page 8 PB Minutes of.the Meeting December 2, 2008 Q� ' DRAFT 1 Motion to adjourn by RR, 2nd by MW, vote was unanimous meeting adjourned at 2 approximately 10:15 PM. 3 4 5 APPROVE MINUTES OF THE MEETING: 6 November 18,2008 Will have to wait until January 6, 2009 PB meeting to approve. 7 8 PLANNING BOARD MEETINGS: 9 December 16,2008 10• January 6, 2009 11 January 20,2009 12 13 14 15 16 17 18 19 20 21 22 23 f,. 24 25 26 By order of the Planning Board 27 28 29 Approved 30 31 Page 9 PB Minutes of the Meeting December 2,2008 r Jen's edits 1/23/09 1 Town of North Andover 2 Planning Board 3 Minutes of the Meeting 4 January 6, 2009 5 Town Hall, 7:00 PM 6 7 8 Members present: John Simons, Chairman 9 Richard Rowen,regular member 10 Timothy Seibert,regular member 11 Michael Walsh, regular member 12 Jennifer Kusek, Clerk 13 _, Courtney LaVolpicelo, alternate 14 15 16 Staff present: Judy Tymon, Town Planner 17 Staff absent: Mary Ippolito, Recording Secretary 18 19 20 21 Chair called the meeting to order at approximately 7:00 PM. . .. 22 23 Chair announced the following POSTPONEMENTS: 24 Street, Z7rl o �/sa i�di r 25 o John Cahill— 166 Salem Street,Map J/L,, Parcel 21. D„finiti.. 5�.,,...visio.. 26 known as The Captain Nathaniel Berry Homestead, consisting of a new 292 foot long 27 roadway.and 3 new proposed lots each containing 25,000 s.f. &existing lot containing 28 32, 174 s:f with existing single-family dwelling within R-3 zoning district. Meeting not 29 closed. Waiver on file until Feb of 2009 30 31 • John Cahill—166 Salem Street,Map 37D,Parcel 21_Watershed Special 32 Permit to construct a new 292 foot long roadway and 3 new single-family.homes, 33 portions of the roadway, one house and a storm water detention/infiltration basin will be 34 within the non-discharge buffer zone. Meeting not closed. Waiver on file until Feb. of 35 2009. 36 37 a 674 Turnpike Street,Theodori Londi, Site Plan Review Special Permit to allow 38 for demolition of a 2 story residential dwelliing in order to construct a 2,800 s.f. 39 Commercial building consisting of 1,400 s.f. restaurant and 1,400 s.f.retail within CDD2 40 zoning district. Waiver on file until January 28, 2009. 41 42 Chair called for the following vote: 43 Motion by RR to accept the waivers for timeframe from the applicant for decision for 166 Salem 44 St,2°d by JK,vote was unanimous. 45 46 i 47 Page 1 PB Minutes of the Meeting January 6,2009 Jen's edits 1/23/09 1 Chair called for the following DISCUSSIONS: 2 3 • Discussion only with Merrimack Valley Planning Commission,Mike Parquette 4 regarding"Priority Growth Strategy". 5 Mike Parquette presented The Merrimack Valley Planning Commission Regional Growth 6 Strategy/Plan. Each community, including N. Andover, had submitted to MVPC their 7 preferences for Priority Development Sites. For NA, the site is 1600 Osgood St. 8 The Growth Strategy allows communities to work collaboratively on issues such as 9 Transportation, Open Space,Development and Growth Centers. 10 11 MW asked if grant funds are available for redevelopment of downtown areas. Mike 12 responded that there are Downtown Initiative Grants available from DHCD,but they are 13 very competitive. 14 15. JS asked about the best way for a community to focus on issues. Mike responded that the 16 designation-by the community of Growth Centers, such as 1600 Osgood,is one way to 17 focus the community's energy. 18 19 Mike also mentioned that the public is invited to contact MVPC with any feedback and 20 questions about the Growth Strategy. 21 22 JS requested that the MVPC presentation be made available on the town's web site. 23 .24 - Chair called for the following discussion: 25 Plse.note: Tim Seibert Planning Board member recused himself,from the 26 Omnipoint Communications discussion. 27 • Omnipoint Communications,pre-application conference for Wireless 28 Facility application. Attorney Brian Grossman was present to discuss plan to apply for 29 a Special Permit for a Wireless Facility at 70 Elm St. Mr. Grossman stated that he 30 wanted to come before the board so that they would have the opportunity to ask any 31 questions of him regarding the application. He expects to apply in late January or early 32 February. - 33 34 Omnipoint is planning to install 4 antennas in the steeple of the church and 3 equipment 35 cabinets in the library room on the ground floor. 36 37 J. Tymon requested that he provide a sample of material for the windows so that it can be 38 reviewed by the Historic Commission. Also needed is a more detailed landscape plan 39- than what was presented on the preliminary plan. 40 41 MW asked whether there was an existing lease agreement with the church? Mr. 42 Grossman replied that the church is in discussion with Omnipoint regarding a lease and 43 that he did not know the current status. 44 45 Thea Fournier of 247 Main St. asked why the Planning Board would allow an illegal 46 application to be presented to the PB. Page 2 PB Minutes of the Meeting January 6, 2009 '� Jen's edits 1/23/09 1 2 JS responded that the Building Inspector/Zoning Code Enforcement Officer has provided 3 a written statement to the PB, stating that any installation of a wireless facility at 70 Elm 4 St. was in compliance with the setback provision of the Bylaw, specifically, section 5 8.9.c.v.2. 6 7 L. Fennessey of 77 Elm St. asked where the Building Inspector received his authority? 8 JS responded that she should read a copy of the statement from the Building Inspector. 9 10 Chair called for the following discussion: 11 The.North Andover School Department Site Plan Review memo. Motion was made by 12 . RR and 2nd by TS to change the wording on the.first page of the Site Plan Review 13 document to read as follows: "After a public-hearing given,on the above date, the Board 14 recommended the attached conditions be imposed on the project:" The vote was 15 unanimous. 16 17 TS left the meeting. 18 19 Chair called for the following discussion: 20 Zoning-Stormwater Bylaw: J. Tymon provided an update on the progress with the draft 21 of the Town's Stormwater Bylaw. J. Tymon, G. Willis and J. Hughes are currently 22 working on a draft and will have that draft reviewed by both John Smolak and Ben 23 Osgood Sr. Both had expressed interest in the bylaw and had suggested changes at ATM 24 08. 25 26 Zoning—Downtown.Overlay District: J. Tymon provided the board with an update on 27 the status of the draft of the overlay district for downtown. A consultant had been hired 28 in.2008 to draft the zoning language and had also recommended a layout for the district. 29 A copy of the layout was presented to the board. 30 31 JS stated that the Town needs to determine what it wants to accomplish by establishing 32 an overlay district. There is also a need for more outreach to neighbors and abutters. Re- 33 zoning may not be the solution. There are physical limitations to the downtown area 34 (lack of depth, parking). If there is an interested business or businesses that want to re- 35 locate to the-downtown area,the zoning should be addressed at that time. This bylaw. 36 needs more work and is not a priority at this point in time. It may more beneficial to 37 focus on the area at Elm and High Streets,where recent redevelopment has taken place at 38 the existing mill buildings. 39 40 MW left the meeting at this point. 41 42 Chair called for the following discussion: (else. note: Tim Seibert, Planning Board 43 member, recused himself and left the panel for the discussion of 70 Elm Street,then 44 returned after the discussion ended). 45 Page 3 PB Minutes of the Meeting January 6, 2009 �2 /o� Jen's edits 1/23/09 1 Wireless application at 70 Elm St., applicant MetroPCS. The board stated that MetroPCS 2 should make a formal request to the Town regarding the Town's desire to place an 3 additional wireless monopole at the Steven's Estate. This request should be made before 4 the next public hearing for this application. 5 The board also announced that the next Planning Board meeting would be held on 6 January 27th. The MetroPCS public hearing will be continued at that meeting. JS 7 requested an email reminder be sent to the board regarding this date change. 8 9 10 APPROVE MINUTES OF THE MEETING: 11 A motion was made by JK and 2nd by RR to approve the minutes of the November 18, 12 2008 and December 2, 2008 meetings,with one change: the town of residency of one of 13 the speakers at the December 2 meeting, Diana Warren,was misspelled. The correct 14 spelling is"Wayland":The vote was unanimous. 15 16 PLANNING BOARD MEETINGS: 17 January 27, 2009 18 February 3,2009 19 20 Motion to adjourn by RR, 2nd by MW, vote was unanimous. The meeting adjourned at 21 approximately 9:30 PM. 22 23 24 25 26 27 28 29 30 31 32 33 34 35 By order of the Planning Board .36 37 38 Approved 39 40 Page 4 PB Minutes of the Meeting January 6, 2009 Draft 2/19/09 4PM �� U9 /V 1 Town of North Andover 2 Planning Board 3 Minutes 4 January 27, 2009 5 6 Town Hall, 7:00 PM 7 8 Members present: John Simons, Chairman 9 Jennifer Kusek, Clerk 10 Richard Rowen, regular member 11 Timothy Seibert,regular member 12 - Michael Walsh,regular member 13 14 Courtney LaVolpicelo, Alternate 15 Staff present: Judy Tymon, Town Planner 16 Mary Ippolito, Recording Secretary 17 18 Chair called the meeting to order at approximately 7:05 pm and announced that 19 MetroPCS applicant for 70 Elm Street will begin at 8:00 pm as the School Committee is 20 at a redistricting meeting and a number of people wanted to hear 21 this petition tonight. 22 Chair announced that there are no postponements for tonight's meeting. 23 g 24 Chair called for Bond release: 25 DISCUSSION: 26 Dr. Mukherjee, 217 &219 Sutton Street&213 Sutton Street—Two Performance 27 G bonds both for$2K each. As-built and letter from en 28 issues. Judy made a site visit, drainage is in lace signs ha have beeneer submitted. �l DPW has no 29 issues. Landscaping will be done this spring. � release has no s in 30 it's entirety and release %Z of second bond and maintain a$$1 totbond balance to keep n until 31 landscaping is done,2°d by JK, vote was unanimous. Release$3K and keep$1 32 33 Chair called for Street Acceptance: (L)ne Pasture Road off Winter Street 34 DISCUSSION: 35 William J. Nigro-request to be placed on 2009 Town Meeting for Street 36 Acceptance for Long Pasture Road. Chair briefly stated the convoluted history of this 37 subdivision. Before the PB can go forward all of the proper channels have to be closed 38 with Con/Com etc. in order to move forward with this request for Street Acceptance. Mr. 39 40 Nigro, 15 Long Pasture Road, stated he's working w/Mr. Fahey and Atty. Scalise and stated that he got a call from Town Counsel 6 weeks ago, and apparently the Town has 41settled their 42 differences with Mr. Palinski regarding a superseding order of conditions.43 Atty. Scalise is working w/Con/Com on documentation and deeds. He gave documentation to Town Engineer for meets and bounds etc. He doesn't have Certificate Page 1 Planning Board January 27,2009 Minutes J �� Draft 2/19/09 4PM 1 , 1 of Compliance yet on lot IA, (which is adjacent to Mr. Palinski's property) from 2 Con/Com. 3 4 Plse note: Atty. Walsh is now present. 5 6 Chair stated there is a checklist of things that need to be done when applying for Street 7 Acceptance, work w/Judy and get issues resolved well before Town Meeting time, 8 however,there is more tree cutting than what PB approved. Mr.Nigro should make 9 provisions to put in appropriate street trees put in areas that need replanting. Mr. Nigro 10 stated he would try to push his street acceptance thru. 11 12 . 13 Chair called for PUBLIC HEARING: 14 674 Turnpike Street, Theodori Londi, Site Plan Review Special Permit to allow for 15 demolition of a 2-story residential dwelling in order to construct a 2,800 s.£ commercial 16 building consisting of 1,400 s.f.; restaurant and 1,400 s.f retail within CDD2 zoning 17 district. Waiver on file until January 28, 2009. 18 19 Judy gave an overview and stated the applicant was still working with Con/Com on this 20 project, although the applicant has changed the proposed project during recent edits she 21 recommended that a new application will be substantially different from the current 22 application. Judy recommended the applicant withdraw their current application and 23 submit a more thorough application. Applicant submitted a withdrawal request that was 24 time stamped January 28, 2009. 25 26 In CDD2 the non-conforming lot has frontage-zoning issues. Applicant may have to go 27 thru ZBA and Con/Com too. Representative for Mr. Londi thanked Judy, Jennifer and 28 Building Inspector for their assistance. 29 30 Motion by RR.to accept withdrawal without prejudice,2nd by JK,vote was unanimous to 31 allow applicant to withdraw without prejudice. 32 33 Forest Linwall, Engineer w/Mistry Associates, made presentation tonight. Lot is 34 bounded by two paper streets, Booth and Saville Street. This is non-conforming lot 35 dominated by wetlands and abuts Mr. McGregor's property. Utilize foundation existing 36 to avoid 50-foot no-build,-resulting to 1700 s.f on ground for restaurant. Build 2nd floor 37 . for dwelling unit 2990 s.f in total. This will take them out of 25-foot non-disturbance 38 zone. Parking setback.and aisle will require 5' of dimensional relief he needs a two=way 39 aisle. Replanting to be done also. Saville and Booth Street are used as driveways. 40 Applicant will continue to use those streets too; he's going to use some of the paper street 41 for his use. 42 43 Chair stated PB spent enormous amount of time planning out this district. There were a 44 bunch of small properties close to road and close to residents, the focal point was if 45 somebody wanted to build commercial structure they had to meet minimum lot size for Page 2 Planning Board January 27,2009 Minutes Draft 2/19/09 4PM 1 either side of the street. But if you wanted to put commercial inside of existing building 2 that would be allowed also. Chair stated applicant isn't complying with the spirit of what 3 PB is trying to do. You are not using existing building; you're making it much bigger. 4 Demonstrate that you can comply with the original/existing size of building fine,but if 5 not,how can you get a variance from lot size? What does that have to do with soil 6 conditions, topography? 7 8 Engineer stated the area(on the map) which lies to the left of the proposed project has 9 been subdivided under land court that means the paper streets are all within land court. 10 He runs into development obstacles because commercial structure would be divided from 11 the parking area by a paper street. Surrounding lot is owned by Town, another adjacent 12 lot isnot selling. He's run into obstacles because building would be too far away from 13 the parking. Owner wants to protect rights they need to deal with relief in the zoning 14 district. PB doesn't agree with engineer's interpretation. 15 16 Please note:John Cahill's petition is going 17 to be heard at 10:45 pm tonight. 18 CONTINUED MEETINGS: 19 20 John Cahill- 166 Salem Street,.Map 37D,Parcel 21. Definitive Subdivision known as 21 The Captain Nathaniel Berry Homestead, consisting of a new 292 foot lon&roadway and 3 new 22 proposed lots each containing 25,000 s.f. &existing lot containing 32, 174 s.f. with existing 23 single-family dwelling within R-3 zoning district. Meeting not closed Waiver on file until Feb 24 27, 2009 25 - 26 John Cahill—166 Salem Street,Map 37D,Parcel 21.,Watershed Special Permit to 27 construct a new 292 foot long roadway and 3 new single-family homes,portions of the roadway, 28 one house and a storm water detention/infiltration basin will be within the non-discharge buffer 29 zone.Meeting not closed Waiver on file until Feb 27 2009 30 31 Judy stated applicant originally proposed a 4 lot subdivision. PB did a site visit and 32 submitted plan showing cul de sac;which conformed to regulations_After input from PB 33 they want to consider small footprint for the roadway, and Mr. Cahill will present a 34ot .34 subdivision with roadway scaled back and to allow for less structure in terms of storm 35 water management,minus drainage pond_ 36 37 RR asked if they were entitled to 4 lots and now they are talking about 3 lots? Judy 38 stated yes. 39 40 Mr. Cahill stated that Phil Christiansen, Engineer, was on his way. Mr. Cahill will 41 telephone Phil now. 42 43 Please note: Phil Christenson is here now. 44 He wants waivers on roadway. Driveway 18 feet wide. RR asked if PB wants to waive 45 sub-division rules and regs, make sure that street as laid out shows lots with right area Page 3 Planning Board January 27,2009 Minutes Draft 2/19/09 QM 1 frontage. If you drew in all lots with frontage and area would you have sufficient 2 frontage on paper with 3 lots? Phil said yes. Chair said cutting on Salem St. is visibility 3 less now? Cut is important it's a bad curve/curb? Is Keith Mitchell happy? Mr. Cahill is 4 not going to touch the tree that Keith wants to keep. No open technical issues raised by 5 VHB. MW asked is there concerns about road and drainage answered? Phil will submit 6 a drainage report to PB. Rain garden will provide calculation that garden treats the over 7 flow and go into wetland behind in the farm field. House located in back will face Salem 8 St. Chair said this is a nice improvement and results should be good—Chair Chair wants 9 extension until end of March. Judy to draft a decision. Motion to accept extension by 10 MW, 2nd by RR, PB accepted extension until end of March. 11 12 Time is 11PM. 13 14 P"ROMPTU DISCUSSION. 15. Judy stated new and/or revised zoning bylaw that she knows of is the wireless bylaw. 16 She suggested the PB look at her revision of the bylaw and put on PB February meeting 17 agenda. 18 19 Judy is working on revision of zoning map which should be approved at Town Meeting. 20 Joyce Bradshaw can approve a zoning map.instead of getting it approved at Town 21 Meeting. Judy stated that most of the changes are already on GPS now. ( 22 23 Chair stated the other zoning issue is Mr. Carroll regarding the Andover St. property; he 24 wants to take down existing structures and replace them with something else. Judy 25 discussed this at prior meeting; she knows what property it is. This is a rezoning issue 26 because he can't utilize the adaptive re-use bylaw. Paper Street exists and he wants to 27 build on top of paper street. Chair will talk w/Mr. Carroll but doesn't have a lot of 28 optimism. 29 30 Tim Seibert asked is there enough time to circulate Judy's language on the cell tower 31 bylaw to other people? Judy submitted a draft as a placeholder already. 32 33 34 DISCUSSION: 35 21 High St. wants to file Planned Development District application for apartments. Chair 36 wants Mr. Steinberg to talk to PB now before they get too far into the project. PB didn't 37 like the building done too close to the abutters and parking lot. Get them to Feb. 3`d PB 38 meeting. 39 40 Judy talk w/Chris Huntress regarding landscaping for Messina's Plaza. Chris to bring 41 landscaping changes to the PB for discussion on landscaping. 42 Page 4 Planning Board January 27,2009 Minutes ,� 17 Draft 2/19/09 QM 1 RR asked is installation of new lamps around the common depending on the removal of 2 old power lines?Don Stewart stated the Town will have to get a loan to have this done, 3 should be done this summer. 4 5 ' Judy stated a Site Plan Special Permit will come in for Police station to add addition to 6 rear 2200 s.f. addition. Gerry Brown, Judy and Ray Santilli reviewed the design and it's a 7 cell—a-port. This will be a full Site Plan Special Permit. 8 9 10 CONTINUED HEARING: _ 11 12 Metro PCS, 70 EIm StreeS ecial Permit t, p t,proposes to install 6-panel antennas 13 at a centerline of 80' in existing church steeple and related BTS cabinet within R-4 14 zoning district. Waiver on file until Feb. 18, 2009. 15 16 Recording Secretary circulated a request for name and street of people present tonight for 17 the record.Chair reconvened the PB meeting of Jan. 27th, 2009 tonight. Chair thanked 18 everyone attending tonight's meeting. Chair explained the procedure and will make time 19 for anyone asking questions tonight. 20 21 Please note: for the record that Tim Seibert recused himself now at 8:05 pm. 22 23 .Judy stated applicant to provide map showing pre-existing facilities within one mile of 24 the facility. Show on plan a security barrier, address requirement of.DEP noise 25 measurements, review material for louvers,Mark Hutchins, consultant,provided a report, . 26 applicant to provide information regarding possibility of co-locating at existing Stevens 27 Estate. See letter from Gerald Brown dated Dec. 3h'd regarding setback for pre-existing 28 structures. Atty. Peter Morin dated Dec. 11 th regarding gap in coverage with case report 29 ZBA involving Town of Pelham. VHB review dated Dec. 18th. Hudson Design provided 30 co-location at Stevens Estate information. Amended application provided with signature 31 of Trinitarian.Church&MetroPCS. Noise report provided regarding pure noise Dec 23. 32 Atty.Morin alternative sites Jan. 20th. Thea Fournier letter Dec 2nd letter from Atty. 33 Fitzgibbons. Liz Fennessey submitted letter at last meeting. Additional NEPA 34 environmental report. Dr. Hayes, Engineer, is here tonight. Applicant to address all 35 these issues tonight. 36 37 Atty. Peter Morin,present tonight. Two letters in Judy's file address whether or not the 38 coverage of competitors is to be considered whether there is a gap in MetroPCS wireless 39 coverage. First circuit Court of Appeals letter was issue regarding gap in coverage in 40 first circuit court of appeals the coverage of competitors is irrelevant whether there is a 41 gap in the applicants coverage. 2nd letter addresses alternative sites,the Steven's Estate 42 and two smoke stacks at 21 High Street. Stevens Estate question is whether or not 43 MetroPCS had or would ask the BOS to.release a new RFP for a second tower. He Page 5 Planning Board January 27,2009 Minutes / Draft 2/19/09 4PM 1 presented in Dec. of 2007 a representative for Metro did have a meeting ex 2 interest. g p ressin g 3 4 Town was aware that there was interest in a RFP being released and none was released. 5 Atty. Morin stated he feels it's not up to hint to release RFP for Town owned property, 6 Town didn't release it. Two people attending the meeting said Town Manager at time 7 had cautionary words to this with regard to what the climate was in Town and they went 8 away with notion they were not certain if Town would be willing to fallow thru on this. 9 Mark Hutchins report stated that even if the Steven's Estate were available that location 10 would not solve a gap in the coverage that would occur along Rte. 133 and Rte. 125. 11 12 Atty, stated the 2 smoke stakes one of which is located on High Street were in litigation 13 years ago,permit was appealed;and T Mobile said property owner wasn't interested in 14 pursuing this project. 15 16 Atty. contacted other owner of other smoke stack and was informed that other owner w 17 not interested in cell tower using their smoke stack.. as 18 19 RR doesn't know RFP process and only asking if people in Town would ask if they 20 would consider building a second tower,just looking for a yes or no. End of subject if 21 they were not interested in this project. RR read Mr. Hutchins report and look at graphs 22 it looks Like driving force form law point of view is that they encourage coverage along 23 main roads, if this is criteria over residential coverage then it looks like proposed citin 24 covers better on southern end of Rte. 125 and Rte. 133. Look at alternativee at siting a 9 25 Osgood Hill there is less good coverage on southern end and far superior coverage on 26 North side. Based on that the site at-Seven's Estate seems to be a far better location. Did 27 they ask question of right people in Town of possibility to build a second tower at 28 Osgood Hill? " 29 30 Atty.Morin said obligation to seek alternative sites is that alternative must be available at 31 the time the application is under consideration. Bylaw specifically requires before a new 32 tower is built that a more preferable alternative is not available before you can get a 33 permit 34 35 RR asked if current application was approved and a gap is still at Rte. 125 and 133 then 36 will they come back in and say they still need to close a gap? 37 38 Franz Pierre, Engineer,presented he can't say if he would come back because as 39 customer base increases and for capacity reasons he might h 40 that gap some time in the future. ave to come back to close 41 42 Franz Pierre, stated he agrees w/Mark Hutchins report. Cell phones are used for travel 43 and at home, Metro objective is to provide reliable coverage that is to provide service, 444 based on residential, highways,building, and anywhere where there is significant gap in 45 coverage. Page 6 Planning Board January 27,2.009 Minutes Draft 2/19/09 4PM l • 2 Alternative at Stevens Hill would be for cov 3 and Rte. 133 area, but not as good as Metro p posed for residential p in covegra n Rte. 125 4 coverage. 5 Bill McQuade spoke regarding security Plan, he's developing 6 week for the church. NEPA is in PD file; there is no.adverse ffec�fall have one in a 7 Design letter and reviewed flagpole at Steven's and it's at capacity and compound arch. Hudson 8 . capacity for 3 carriers at this site. Noise study, its is at 9 church location. No sites within one mile of proposed church location no arable in 10 facilities). Amended application submitted � wireless 11 church and MetroPCS. R 1 an original of co-applicants signature are 12 commission and church. Dec letter from Building u 1 material is ac ceptable by the historical 13 w/Section 8.93 cd2 preexisting structure is proposed amouector nt and setback g collocation complies 14 zoning district does comply, k provision of 15 16 Mark Hutchins, Engineer, is speaking on behalf of the.Town 17 name as an RF engineer. He has 40 years ex and VHB submitted his 18 providers or tower developer for approx. 9 ears. S' and not accepted work from 19 guidelines. Dr. Hayes looked at exposure for approxit2000 fcompliance Concerned wit FCC 20 Program in place where church needs to mak eout 21 contractor be aware of existence of antennas that's the osomebodye y�,heze FCC getting on ladder that 22 would be exceeded, FCC has case tt, guidelines 23 to do interference to neighbor's electronic devices Supreme Court where you are pre-empted 24 possibility of 3 alternatives, a new tower in area from this equipment. RF coverage 25 stacks filed bced ea of existing pole there, looked at 2 smoke ant26 available for non RFreasons. Discrepancy at same"her ght, it appears those sites are 27 applicant from the North by exit on 495,there is en his coverage rage and n coverage from 28 there it's BOS0211;he was not getting sector site and from 29 their map. g g COV�ge to the North that applicant showed on p One way to provide coverage to the North to add 4t'sector somewhere 30 between 80 and190 to direct more signal in that direction. Report Page 5 s 31 of court decisions looked at A g section 4H, lot 32 coverage than just on highways.PP�1 Con he said users expect more wide spread 33 coverage on highways, atGood history where courts as � ys,but that Covera a is n same there will be 34 tremendous dropin g needed in residential area. There is people who have wire lines. Losing subscribers in Maine,N.H. and 35 Vermont, losing customers and had to wait 3 weeks 36 wireless service. Omnipoint went to Stevens Estate because it was better to get weed service and counting on 37 because they couldn't get permission to Iocate on smoke stacks. � nothing 38 39 MW asked based on environmental effects we're precluded from.den 40 based on environmental effects of RF? Mr. Hutchins said -yes. Ymg an application 41 environmental would include in your opinion? MW asked and 42 RF radiation because that's clear to him that's what they ins detect he wished they said 43 Page 7 Planning Board January 27,2009 Minutes Draft 2/19/09 4PM 1 Mr. Hutchins stated FCC has said measurernents aren't necessary, procedure has an 2 endless litigation. Applicant should agree to do measurements after application process, 3 but recommends applicant volunteers to do measurements, 4 5 MW asked if RF levels would be well below FCC guidelines require? Mr. Hutchins 6 stated yes, said at base of tower he does spectrum analyzer to measure. 7 8 RR asked if emissions allowed by FCC at base of church what is percent? Mr. Hutchins 9 said 1 to 5 percent of maximum. Are there any devices in use by people in Town in their 10 own homes compared to an antenna? Mr.Hutchins stated a leaky microwave oven would 11 be higher than what would be in the area at church. See report for the record. 12 13 Judy asked if Mr. McQuade would write up a maintenance pian? McQuade is drafting it 14 now. � - 15 16 Caroln McDermott-Zimmer, 135 S.Bradford St.,Z future applicant at same location? Is i 17 RF cumulative? Mr. Hutchins said it is cumulative, Does it affect 2nd applicant? Mr. t 18 Hutchins stated according to FCC it applies to everybody it's cumulative. 19 20 Loretta Wentworth, 15 Pleasant St., lives 276 feet from church. Mother and 21 grandmother, worried about future generations. RF emission neighbors are exposed 24/7 22 to emissions. Negative effect on property values. Submitted petition of residents 23 opposed to.cell-tower in church. Consider Stevens Estate or other sites it would 24 revenue to Town. Completed market analysis assessment at 45 Elm St. valued agenerate 25 $665,000.00 could cost home owner$20K if presence of cell towers are located so close 26 to their property. Submitted petition of 189 residents in opposition for the record. 27 Submitted appraisal affidavit stating property, value will drop so church will make mone 28 is unacceptable(submitted for record). Chair asked for documentation to be submitted y 29 for the record. 30 31 Dagmar Schnellinger, 83 Elm St., lives 60 feet from the church property. Submitted 32 affidavit of home appraisal to the PB price of home 33 antenna were to be located in church and has a potentialhealth would be iriissk.tedif cell phone 34 35 Jim Gordon, 500 Rea St., what is relevance of Dec, 2nd Building Inspectors 36 determination? Chair stated he's Zoning Enforcement Officer for Town, PB relies on his 37 guidance as TB makes their decision. Anyone has alternative to disagree with his 38 decision. Mr. Gordon asked has anyone challenged Building Inspector's interpretation 39 for antennas in church steeple at Mass Ave. steeple? MW stated Atty. Fennessey, of 40 Methuen, takes issue with his interpretation(in the record). 41 42 RR stated our Town's counsel said the proper authority is our Town's Zoning 43 Enforcement Officer go to him and he's rendered his decision. 44 Page 8 Planning Board January 27,2009 Minutes Draft 2/19/09 4PM I Mr. Gordon asked if any member of this Board has an opinion that differs from the 2 Building Inspector. Mr. Gordon asked when does a church steeple become a tower? If 3 this is the issue the building inspector should be dealing with a change in application? 4 Petitioner can take this issue to Appeals Board. Mr. Gordon asked if PB could become a 5 party aggrieved of the decision of the Building Inspector? 6 7 Town Counsel told the PB if you want direction on this go to the Zoning Enforcement 8 Officer, so the PB went to the Zoning Enforcement Officer,the BP looked at the bylaw 9 under Section 3B location, #1 (refer to Bylaw)that's the interpretation the PB intends to 10 follow. Mr. Gordon wants PB to appeal this issue. Chair stated the PB does not have 11 standing, someone-else has to do that as a party aggrieved. 12 13 Aaron Pertus, 62 Elm St., has issues with fire, ventilation system, emergency lighting, 14 back up batteries, smoke.management system,procedure for battery spill and back up 15 system. There are statements inaccurate such as "no emissions"address these issues. 16 . Bill McQuade said he doesn't have specific answers at this point but will provide these 17 answers to PB. 18 19 Chair said when getting a building permit some of these would be addressed then? Mr. 20 McQuade said yes. Mr. Curtis will provide PB with his questions tomorrow. Mr. 21 McQuade said he filled all requirements of this board and fulfilled the requirement for the 22 Fire Dept. also. 23 24 Mr.Allen, 45 Elm St.,read Mark Hutchins' report. Mr. Rowen did a good job of 25 addressing the report Rte. 125 and Rte. 133.Why would PB grant this variance when there-is a 26 better site in town? PB stated it's not variance it's a Special Permit.27 28 Liz Fennessey, 77 Elm St., lives 50 feet away from church; she talked to people who 29 changed bylaw in 2000. Researched in 2000 interest in inventory towers 30 revenue for Town. .Walter Soule requested a committee be formed for this puiposeo get 31 Stewart,Mitchell, Bernice Fink, Lynn Avakar and Garrath Morfill.They all stated 32 interpretation of bylaw made by Building Inspector and Town Co 33 Walter's intent was to keep tower at least 600 feet away from homes and peopel was le.Ms 34 Fennessey read committee report of people involved at the time. Ms Fennessey said 35 Building Inspector, Town Counsel, and PB should reconsider their interpretation of the 36 law and follow its content and refer this matter to the ZBA where it belongs. 37 38 Lynn Avacar, 125 Barker St,. said let's think about environmental issues,historical . 39 building, there can be full coverage but we don't know what health coverage will do. 40 Wants compromise on this matter, why make people move from their homes? 41 42 Cindy Allen, 45 Elm St., read her argument(submitted for the record). How can the 43 language of the bylaw be mis-construed? Town has no good reason to allow church to 44 auction off the steeple to cell tower for financial reasons. Best options is to'uize til 45 Stevens Estate,residents of Elm St. would win, even church would win because they Page 9 Planning Board January 27,2009 Minutes ` Draft 2/19/09 4PM 1 would be able to keep kindergarten at the church. If coverage shrinks, then applications 2 would increase to get stronger coverage? RR to a degree yes, the more people who have 3 PCS service then more people who would complain. Ms Allen asked how could you 4 sleep at night if you do this to this neighborhood? What about our who kids are sleeping 5 on 2nd and 3`d floor in this neighborhood? Riverwalk has antenna arrays. Airport has 6 antenna arrays. 7 8 Karen Carroll, 11 Woodbridge Road, she feels PB is being misled reg. interpretation of 9 bylaw. There are no FCC regulations relative to biological effects. No research is 10 available. Bylaw is meaningless as written it states 600 feet setback, and pre-existing and 11 existing can't be inter-changeable. She previously submitted opinion from a lawyer thru 12 Thea Fournier. 13 14 Ann Oliver, 46 Elm St., health risk to residents around church if you put cell tower there. 15 Too many scientists looking at low intensity exposure. Her daughter got cancer because 16 there was a transformer box outside of her house, according.to Dana Farber from RF 17 emissions. Physical changes due to RF emissions in school children. Non-thermal 18 effects are potential health risks. 1.9 20 Chair said PB can't make determination based on health issues, the 21 forum to do that is to,go to FCC. PB can't make decision based on research submitted 22 (Ms Oliver submitted paper for the record). 23 24 George Schruender, 71 Elm St.,he recommends to continue this hearing, go to ZBA first 25 and oppose opinion by the Building Inspector. 26 27 Bruce Baker, 257 Main St., Town meeting passed bylaw to prohibit cell towers within 28 600 feet of residents. 29 30 Mark Depolito, 9 Pleasant St.,presented PB with case law study. T. Mobile is going to 31 look for another tower for gap in coverage but relevant because Metro PCS is stating 32 Stevens Estate is not going to provide enough coverage. RR said no one has permission 33 to put an additional antenna on the Steven's Estate right now. Everyone here can contact 34 Town Manager or BOS and ask for anRFP so that it's at least a viable alternative. 35 36 Thea Fournier,247 Main St.,Jan Williams went to BOS meeting and asked to propose 37 . they go to Metro PCS and propose to put a new monopole at Stevens Estate. BOS told 38 Ms Williams that it wasn't up to them. Mis-communication with BOS because Ms 39 Fournier is trying to get them to communicate. 40 41 Mr. Depolito, (submitted handout tonight) interpreted Telecommunications Act of 1996. 42 Town could not prohibit cellular service. But Town had opportunity to determine whe 43 they would locate the coverage. Mr. Depolito submitted report for the record tonight. See er 44 page 9, 10, 11, & 12 for District Court's interpretation of TCA. `. 45 Page 10 Planning Board January 27,2009 Minutes a3 QJ� Draft 2/19/09 4PM 1 Thea Fournier, 247 Main St.,presented document by Atty. Edward Collins from Wayland 2 Mass—submitted letter for the record. His opinion is zoning bylaw establishes a setback 3 requirement of at least 600 feet between wireless service facilities including antennas and 4 mounting structures etc.....she skipped to ......term pre-existing structures whether 5 conforming or non-conforming refers to structures actually in existence and being used 6 by wireless service facilities at the time provisions of current zoning bylaw became effective etc.......Section 2 does not apply to mounting of antennas in that church, it's not 8 a pre-existing structure, it's a new existing structure and governed by requirements of 9 Section 1 etc.....(see letter for the record). 10 11 Ms Fournier stated whatever decision PB makes she wants to be notified and provided 12 copy of PB decision at same time Town Clerk receives PB decision. 13 14 Don Stewart, 52 Prospect St.,he was on committee and intent was 600 feet from 15 residential structures. Town divided, intent over-weights interpretation. He will get RFP .16 tomorrow from Town. 17 18 Lynn Avacar, stated intent was only to grandfather in the old structure because they 19 didn't want to say if there is cell phone tower they were only grandfathering them in. 600 20 feet was for anything new. 21 22 Applause from audience drowned out the name of the next speaker who lives on Webster 23 Wood Lane? Speaker stated the police station; down town has wireless antennas now? 24 How does WYFI systems compare? She doesn't have leaky micro-wave. What about 25 baby monitors? Mark Hutchins stated those devices are lower power and doesn't require 26 license from FCC. 27 28 Lynn Avacar stated she did not base the reasons on health, they were based on 29 environment,property value many other reasons. 30 31 Lynn O'Neill, formerly of Elm Street, stated she has thyroid cancer,has health concerns, 32 she had radiation and measure for public safety and it was a different measure which was 33 ok for her to go back to her home...she stated that the effects of a wireless located at the 34 church are not know. 35 36 Don Hayes, Health Physicists, stated use of iodine is outside of the PB purview. 37 Migration into public versus close relatives is a different type of RF energy than what 38 we're talking about tonight. 39 40 Ms Gordon, 25 Garden St.,people have a choice to use a cell phone because it's a choice; 41 there's no choice if you live close to a tower. 42 43 Diana Warren, Waylvnd, MA; what is range from signal from Metro PCS facility in 44 miles? Mark Hutchins. said depends on direction. Mr. Hutchins said range could be Page I 1 Planning Board January 27,2009 Minutes Draft 2/19/09 4PM 1 several miles, generally half mile or more. Ms Warren stated North Andover's request 2 for a one-mile range is insufficient. RR said he believes that wasn't what PB asked for. 3 Ms Warren stated some evidence was deleted from what was submitted to the committee. 4 Ms Warren stated Town Counsel is hired by BOS and PB should have their own attorney. 5 Town Counsel supported BOS and BOS is of a mind-set and his opinions expressed 6 indicate that. Ms Warren stated Section B limitations etc., FCC doesn't regulate 7 biological effects. 8 9 Chair instructed further questions to be directed to Judy. Chair wants follow-up on 10 applicant to address issue on wireless facilities within one mile. Applicant provide 11 information maintenance fire/safety issue. 12 13 Chair wants.to distill in common patterns and threads and evaluate everything and put 14 into categories as PB moves forward. 15' 16 Chair took a poll of what PB members are available for the next PB meeting of Feb. 3rd 17 Jennifer not available next week. 18 19 Meeting on Feb. 17th Rowen won't be here and Courtney will be absent on Feb. 17th 20 21 PB will meet on Feb. 3'd, to continue this hearing. PB may have to schedule a Special 22 Meeting to bring in a decision. We need a quorum before the Feb. 17th meetine. Rowen 23 will be out 17, 18, 19, and out 8t'and 13th of March. Chair would 24 week(Feb. 3rd) in order to catch up. like to hear this next 25 26 Bill McQuade wants article number in bylaw for the.one mile?Judy stated Section 27 8.95dii. 28 29 Steve Tryder, 386 Chestnut St.,where does this stand in taking it to ZBA? Mr. Tryder 30 stated there is a mis-interpretation that PB will be basing their decision on and you are 31 going to go ahead and make a decision about having that clarified for us,we want to take 32 that .......Chair said you're suspecting that we're going to deny he wasn't finished 33 talking yet, Chair asked if you will let him finish? Chair thanked everyone for coming 34 tonight,this is the most people PB had in the past 20 years at their meetings. About 60 35 people tonight. Chair stated the subject of interpretation of bylaw is that you shouldn't 36 interpret bad faith by Building Inspector or anybody else. PB has changed bylaw and 37 developers came in and said they wanted to do such and such; therefore, the language 38 isn't as crisp as the PB intended it to be. Chair said he'll go back to ZBA and have a 39 dialogue with them. Problem exists here is when bylaw was amended it was 40 incompletely amended, only minor changes of a couple paragraphs,therefore, conflicting 41 language remained in bylaw after the change that is contrary to the interpretation of what 42 you have. Even though somebody intended something to happen that is not necessarily 43 what.they executed. 44 Page 12 Planning Board January 27,2009 Minutes X} a5 Draft 2/19/09 QM 1 Mr. Tryder said when law was amended in 2000, for 6 years that law meant something 2 different, Building Inspector came to Town and suddenly it became an issue. 3 4 Chair said there has been legitimate ambiguity in bylaw, intent was one thing, written 5 was something else. 6 7 Mr. Tryder tried to get Building Inspectors intent for 6 years and he hasn't gotten 8 anything. 9 10 , Liz Fennessey said intent is the word not environmental. One thing that is clear is that I 1 the bylaw is unclear. 12 13 Chair called to APPROVE MINUTES OF THE MEETING: 14 Motion by JS, to approve January. 6,2009 Minutes, 2nd by TS,vote was unanimous 15 approved. 16 17 18 PLANNING BOARD MEETINGS: 19 January 20,2009 cancelled .20 February 3,2009 21 February 17, 2009 22 23 24 25 Time is 11:00 pm 26 27 28 Motion by RR to adjourn, 2nd by JK,vote was unanimous. 29 30 31 32 33 By order of the Planning Board 34 35 Approved 36 37 38 39 40 41 42 43 Page 13 Planning Board January 27,2009 Minutes ,�2� Z4 DRAFT Jen's edits 4/1/09 Mary's edits 4/6/09 Approved 4./7/09 1 Town of North Andover 2 Planning Board 3 Minutes of the Meeting 4 February 24, 2009 5 Town Hall, 7:00 PM 6 7 Members present: John Simons, Chair 8 Jennifer Kusek, Clerk 9 Richard Rowen, regular member 10 Timothy Seibert,regular member 11 Michael Walsh,regular member 12 13 Member absent: Courtney LaVolpicelo, alternate 14 15 Staff present: Judy Tycoon, Town Planner 16 Mary Ippolito, Recording Secretary 17 18 Chair called the meeting to order at approximately 7:05 pm and announced that the 19 discussion items would be called first,the bond release for 400 Willow St.;the traffic 20 signal on 210 Holt Road; and extension request for 12 Bonny Lane. Chair announced 21 that the Cahill project for 166 Salem Street is postponed. Chair will call for Metro PCS 22 then finish with remainder of discussion and"Minutes", etc. 23 24 25 POSTPONEMENTS: 26 none 27 28 29 Chair called for DISCUSSION: 30 Bond release: 31 8 Stephen Foster, 400 Willow Street, request close out of$l OK bond. As-built 32 and letter from MHF Design Consultants submitted. Letter from Gene Willis, DPW, 33 stating his concerns have been satisfied. Tim Willett, DPW, stating-he has no concerns. 34 Judy made a site visit has no issues. Motion by RR to release all bond money, 2nd by TS, 35 vote was unanimous.5-0 36 37 38 Chair called for DISCUSSION: 39 Traffic Signal: 40 N Mr. Thomson, 210 Holt Road, applicant has installed signalization at Holt Road 41 and Rte. 125, as required by the Board of Health — site assignment and the Planning 42 Board's Site Plan Review decision. There are remaining funds to be placed in an escrow —� 43 account to be used for future changes to the installed traffic signals. 44 Page 1 February 24, 2009 Minutes DRAFT Jen's edits 4/1/09 Mary's edits 4/6/09 Approved 4/7/09 1 Judy spoke wBOH there was a requirement in Site Plan Special Permit by the Planning 2 Board in the decision and also contained in part of site assignment decision from BOH to 3 contribute $200,000.00 for traffic light etc. Place money in escrow account to install a 4 traffic light at future date. Estimate is $184,000.00 to install a light, BOH questioned if it 5 would cost that amount? 6 7 Chair: talked wBOH does intersection need to be signalized or not? Applicant installed a 8 blinker light there, however, they may have to upgrade this light in the future. Only half 9 of the $184K may have to do with the light. PB: has a separate bond account with$15K 10 basically for landscaping that wasn't done. Chair: subtract the amount that has nothing to 11 do with the traffic light then the left over should be the escrow amount. 13 RR: if they set money aside to build and design a traffic light the light has been installed 14 now;they have fulfilled their obligation. 15 16 Chainthe idea of escrow is to have money-there in case something happens. MW: asked 17 is there$184Kworth of light? Chair said no. MW: have them come in and explain 18 attorney fees, etc. and schedule them for future discussion to clear up this matter. TS: if 19 intent is to put in traffic light then put it in,whether a more elaborate light is needed in 20 the future then is this to be put on them? Chair:hold the money for five or ten years, no 21 one knows what total volume of this facility will be. Bottom line bring Mr. Thomson 22 back in for a discussion with the PB.. .23 24 Chair called for DISCUSSION: 25 Extension request: 26 o Tony Grasso,request for an extension for a Watershed Special Permit.for a lot 27 located on 12 Bonny Lane under the name of Bonny Realty Trust granted on 3/12/07. 28 29 Mr. Grasso is in the process of purchasing this property—Decision has been recorded. 30 Atty. Don Borenstein to represent applicant.Watershed Special Permit filed w/Town 31 Clerks office. 32 33 Atty. Don Borenstein, 12 Chestnut St,Andover,MA stated two years ago applicant ' 34 Bonny Realty Trust;was in front of the PB, Con/Coin and ZBA. A lot of discussion took 35 place with the Town at that time,unfortunately the market was on its way down. Buyer 36 is Mr. Gra_ sso's son who will apply for building permit ASAP. Watershed SP will expire 37 in March of 2009,he wants a few months extension. 38 39 Judy asked are there changes to foot print? Applicant may not build as big as what was 40 originally permitted, at some point he may come back in for a modification to the Special 41 Permit. Motion by RR to grant one-year extension for a Watershed SP for 12 Bonny 42 Lane for March 6, 2007, 2nd by JK,vote was unanimous. 43 44 45 Chair moved this DISCUSSION to the end-of the meeting: Page 2 February 24, 2009 Minutes zg DRAFT Jen's edits 4/1/09 Mary's edits 4/6/09 Approved 417/09 1 Article for Town Meeting: 2 o Wireless Bylaw, Section 8.9 of the Bylaw. J. Tymon's proposed changes to the 3 existing Wireless Bylaw. 4 5 6 Chair announced postponement for following CONTINUED MEETING: 7 8 m John Cahill— 166 Salem Street,Map 37D,Parcel.21. Definitive Subdivision known as 9 The Captain Nathaniel Berry Homestead,consisting of a new 292 foot long roadway and 3 new 10 proposed lots each containing 25,000 s.f. &existing lot containing 32, 174 s.f.with existing 11 single-family dwelling within R-3 zoning district. Meeting not.closed. Waiver on file until 12 March 31,.2009 final plan submitted 2/18/09 13 . 14 m Jo*hn Cahill—166 Salem Street,Map 37D,Parcel 21.—Watershed Special Permit to 15 construct a new 292 foot long roadway and 3 new single-family homes,portions of the roadway, 16 one house and a storm water detention/infiltration basin will be within the non-discharge buffer 17 zone.Meeting not closed.Waiver on file until March 31, 2009. final plan submitted 2/18/09 18 19 20 Chair announced the Planning Board would not vote on MetroPCS tonight: Board 21 member Timothy-Seibert recused himself from this petition tonight. 22 _Metro PCS, 70 Elm Street, Special Permit,proposes to install 6-panel antennas 23 at a centerline of 80' in existing church steeple and related BTS cabinet within R=4 24 zoning district. Waiver on file until March 10, 2009. 25 26 Judy gave an update'on the following punch list: Letter submitted by Atty. Peter Morin 27 requesting a waiver, 8.95D other pre-existing and approved wireless facilities within one 28 mile of..N.Andover's boundaries, Another letter from.,Atty.Morin of property value . 29 assessment by William Pastusick? Sign plan/safety barrier plan, applicant's engineer will 30 review this. 31 32 Public submitted items via e-mail today,which include: collection of requirements 33 related to installation of telecom facility regarding Fire Department requirements. Judy 34 presented this.today to Gerry Brown and he submitted a written opinion, she spoke 35 w/Chief Martineau. Received via e-mail a letter from David Deens and he received letter 36 from Counsel from FCC and submitted to Judy. 37 38 Atty. Morin addressed waiver requests. Alternative site is issue, looked at the area of this 39 gap, and identify existing sites that wouldn't work. Other existing sites don't serve this 40 particular gap area. Granting a waiver for this would make sense. If they are outside of 41 area that would achieve coverage then we know there are rooftops in S. Lawrence that 42 MetroPCS uses, tower in S. Lawrence/Andover line that everybody uses. They serve no 43 useful purpose for this application because they are so far outside of this gap area. 44 45 Judy read requirement: map showing other pre-existing approved wireless service . 46 facilities in N. Andover and outside N. Andover within one mile of its boundary. See Page 3 February 24, 2009 Minutes A9 DRAFT Jen's edits 4/1/09 Mary's edits 4/6/09 Approved 4./7/09 1 section#5 application procedures,page 111, 94 in Bylaw. Once an applicant submitted 2 this report then it would be easier for the next applicant to add on their information, etc. 3 4 Judy. this is a difficult thing to keep track of, due to co-location, carriers changing their 5 name, no reporting requirements by carriers; PB doesn't keep track of change in 6 ownership of the cell tower companies. 7 8 Chair: based on coverage area have you identified every single one? Atty. Morin said 9 yes. Atty. Morin: said Bylaw said we want you to use pre-existing structures and submit a -10 "full application for 100 %invisible installation,then the purpose of identifying other 11 facilities is wrong, no purpose for it. 12 13 Atty. Morin: said real estate letter and report, was produced by Mr. Noon referring to 14 Schneider Electric smoke stack application. Tt concluded that the installation was visible 15 in neighborhood would have an impact on real estate values.Atty. Morin's letter deals 16 with fear of potential buyers relative to adverse health impact.He got appraiser to do real 17 estate study for scientific methodology done to identify similar installation to this one and 18 examine realestate activity out side of neighborhoods regarding the impact on real estate 19 sales. Reference report for Calgary Baptist and Bradford Church and West Parish Church. 20 21 Bill McQuade, MetroPCS, compared 70 Elm St. steeple to 3 other churches. 22 a). West Parish Church, Andover. (Residential location older homes; etc. No unusual 23 trends regarding absentee ownership etc.). 24 b). 586 Mass Ave,N. Andover, First Calvary Baptist Church, comparison in residential 25 near school, impact two sales of homes recently sold for prices above the median price. ...26 c). 10 Church St.,Haverhill, T. Mobile tenant, and Metro PCS there too. First Church of 27. Christ, competitive location,residential area, no measurable impact from antennas,listing 28 indicates 3 listings fall within perimeter of listing price. Construction and operation will 29 not have any adverse affect on property values within the subject site. 30 31 Atty.Morin put: into file a NEPA letter stating"no significant impact on historical 32 neighborhood" (he submitted letter tonight dated Jan. 26,2009.) 33 34 Don. Hayes: spoke regarding RF Safety Plan report done by Hudson Design Group 35 relative to roof top installations. Mr. Hayes:reviewed this report and finds this report 36 acceptable to use as RF safety plan. 37 38 No signs required throughout facility with exception of direct access to tower itself. Blue 39 sign A posted into steeple/near antennas is not required by law to do so. Sign B is caution 40 sign needed to notify individuals that they may exceed potential for exposure in direct 41 access to antennas. It's acceptable plan on file and made available for individuals who 42 would repair or do construction on the facility. 43 44 RR: would church have final authority to shut down antennas? Mr. Hayes: said 45 - responsibility falls on the landlord. Page 4 February 24,2009 Minutes 3v DRAFT Jen's edits 4/1/09 Mary's edits 4/6/09 Approved 4./7/09 1 2 Atty. Morin: request for 5 minutes to sum up issues (at the end of the meeting). 3 4 Steve Tryder, 386 Chestnut St., did people who bought this real estate know there was 5 invisible source of radiation in church where they were buying their home? Bill 6 McQuade stated he presented the report he didn't compile the statistics. 7 8 Loretta Wentworth, 15 Pleasant St., stated real estate agent has to divulge anything that 9 would affect the consumer,high power lines, gas line, it's immediate deterrent. 10 11 Mr. Tryder: asked if there were a church located in a particular area would a buyer be 12 inclined to ask if there are wireless antennas located in the steeple? Ms Wentworth: said 13 yes,but at this point maybe not. Mr. Tryder: this is major loophole in the study. Ms 14 Wentworth: stated the report would carry much more weight if person who wrote it were 15 here tonight. 16 17 Chair: wants this report put-on line. Judy: sent it via e-mail to a mailing list today. Chair: 18 stated you can see the results of study if you think it's wrong get back to 1'B. 19 20 Ms. Wentworth: stated Bylaw is not being adhered to. Why isn't Bylaw adhered to?. She 21 wants to review the report, and continue this hearing to March 3'd. She has information � 22 on effected property values she wants to put into the record(submitted letter forrecord 23 tonight.) . 24 - 25 Don Elliott,266 Main St.,he's a licensed radio amateur operator, Technical Director in 26 high-tech company,member of the Board of Trustees of Congregational Church. How _ 27 many folks present own a cell phone? They are.ubiquitous?.Cell phones should be 28 attacked,not cell tower or bay station. Power outlet here 10 Mila watts up to 200 Mila 29 watts. Bay station numbers are around.1 to .5 Microwatts. Who looked at Mark 30 Hutchins report? Section in there about going down from 4-bars to 1-bar and this is next 31 to your head, the power goes up automatically. GPS antenna you get location what sector 32 of antenna you will get connected to. Looking at 120 degrees 3 sided configuration, 33 you'll get connected with one of those antennas. Mr. Elliott lives at the Fields Estate and 34 is planning to put up an amateur radio transmission tower no higher than 200 feet on his 35 property. He read article by Diana Warren from Wayland, emissions levels are much less 36 than the RF emissions are. Submitted newspaper article to PB tonight regarding cell 37 towers that are planned to go next to school in Florida. 38 39 40 Liz Fennessy, 77 Elm St.,presented how the Bylaw was applied since 2000. 41 Trinitarian Church, letter from Bob Nicetta 8.9 a SP is required prior to installation of 42 wireless facility, advised to obtain prior variance. 43 Page 5 February 24,2009 Minutes 3 � DRAFT Jen's edits 4/1/09 Mary's edits 4/6/09 Approved 47/09 1 2001 letter July 27, from Attorney letter to Mr.Nicetta for 401 Andover Street, PB 2 agreed facility is type of facility consistent with Bylaw,but apply for a 600 `variance 3 first. 4 5 Letter from Michael McGuire on 2001 stated a variance is required for 600' setback from 6 ZBA. 7 8 Letter in 2002 to One High St., Omnipoint, from Mr.Nicetta a setback of 600' is required 9 petition the ZBA for variance. 10 11 2006 letter regarding First Baptist Calvary Church, from Gerry Brown 600' section does 12 not apply to First Calvary Baptist Church"because as proposed antennas will be installed 13 in church spire,therefore,no.need to go to ZBA for a variance. 14 - 15 Letter in Dec. 3, 2008 regarding Trinitarian Church from Gerry Brown 600',Section does 16 not apply to church as antennas will be within existing church spire, no need to go to 17 ZBA for a variance. 18 19 Ms. Fennessey: stated it's the duty of Town Board and officials to apply the Bylaw in a 20 consistent manner refer this issue to the ZBA where it belongs (letter for the record). 21 22 Jim Gordon, 500 Rea Street, wants PB to deny this petition with respect to a fire safety, 23 issue. Issue is un-suspected children that might become impacted by approval of this 24 decision. 25 26 .. Judy: no recommendation was made by Fire Department. Building inspector submitted a 27 letter today,he's reviewed material presented and the issue addressed in material pertain . 28 to fire related safety standards,would be addressed by the Fire Department at the time of 29 issuance of a building permit. 30 31 Mr. Gordon: stated Fire Department has to sign off on form M and the PB would want to 32 weight in with.Fire Chief to find out what are the merits mentioned at the last meeting 33 regarding fire safety issue. 34 35 Cindy Allen, 45 Elm St., she identified existing wireless facilities within one mile and 36 locations of towers within 3 mile radius from surrounding"communities (hand out for the 37 record). She has no choice regarding cell tower in her neighborhood. 38 39 Aaron Pertus, 62 Elm St.,Referring to National Fire Protection Agency, issue of back up 40 batteries emit hydrogen gas when being recharged, which is explosive in contained 41 environment such as equipment room,needs automatic ventilation system. Judy. sent e- 42 mail to Chief Martineau with the packet information. 43 44 Cindy Jalbert, Webster Woods Lane, did PB talk to ZBA about this issue? Chair: talked 45 to Chair of ZBA and informed him of this process and letter of Gerry Brown. It was left Page 6 February 24, 2009 Minutes 32 DRAFT Jen's edits 4/1/09 Mary's edits 4/6/09 Approved 4/7/09 1 that is the opinion of the Zoning Enforcement Officer and not the prerogative of the ZBA 2 until someone brings something in front of them. 3 4 Cindy: asked if existing antennas had to go in front of the Planning Board process to get 5 permitted? Chair: thinks they existed before the Bylaw was written. Nothing has been 6 put in since the Bylaw came to place. 7 Cindy: Town passed Bylaw to exempt these things and put them where they want to? 8 Cindy: asked do all antennas contribute to RF emissions? 9 10 Dr. Hayes: range breaks down to 1 to 1 %percent of the FCC exposure limits to members 11 of the public. 12 13 Did church officially sign a contract w/MetroPCS? Chair said they are co-applicants and 14 filing jointly. 15 16 Thea Fournier,.247 Main St., home is in family for 75 years. Problem is not the Bylaw 17 but town officials have failed to uphold Bylaw. Gerry Brown and Town Planner did not 18 adhere to requirement of Bylaw, Chair objected to her making a personal attack against 19 the Planner,Thea scratched Town Planner...Thea went on to say PB needs to uphold 20 enforcement of 600 foot setback. 21 22 .PB should turn application down because it doesn'.t comply with clear wording of the 23 Bylaw calling for 600 feet setback from schools and residences with houses close as 27 24 feet to proposed antennas. 25 26 Application belongs in front of ZBA not the PB. PB must according to.Bylaw turn this 27 down, then applicant will go ZBA fora hearing. BOS made alternative site available for 28 Metro and other carriers at Stevens Estate.Town officials have failed to adhere to Bylaw 29 provisions, citizens are confused about the Bylaw, she submitted copy of a letter in the 30 Citizen and a letter from her Atty. Collins(submitted for the record). 31 32 Lynn Avacar, 125 Barker St.,Bylaw enacted and got committee together included 33 telecommunication.companies,workedlogether to come up with this law, citizens voted 34 on this law and unless citizens have a chance to say otherwise she doesn't understand 35 why a law is being questioned? 36 37 Mark DeIppolito,Pleasant St., question for Dr. Hayes? How far away from cell tower 38 was he when he made these measurements? Dr. Hayes: spoke he made measurements at 39 close proximity to this proposed site to get base line to get ambient readings. Performed 40 theoretical calculations from base of antennas at ground level out to including 10,000 41 feet. 42 43 Cindy Allen:presented drawing sound rays and radio waves and microwaves and 900 44 megahertz cordless phones and they go up to 500 megahertz and cell phones are 45 somewhere in there. There's danger of UB rays. She explained waves. Page 7 February 24,2009 Minutes 33 DRAFT Jen's edits 4/1/09 Mary's edits 4/6/09 Approved 4..`7/09 I 1 2 Diana Warran, Wayland, dispute Attorney can't provide information on current on line 3 build out of all carriers that have licenses in Boston area. 4 5 She will fax tomorrow copies of maps that show all carriers in the area proposed and the 6 ones on line.. A member of wireless committee consults for Metro, she's protecting her 7 client who is member of wireless company. Moratorium by National Fire Association 8 voted in 2003 for a moratorium. Mr. Hayes hasn't submitted any power density projected 9. for this facility it was not provided. Ms Warren will fax 2 copies of other town's that he's 10 (Dr. Hayes)had done a comprehensive report on. They are keeping you in the dark on 11 purpose.. . .12 13 Dr. Hayes:-demanded apology from Ms Warren stating that he's omitting certain =14 information tonight: Dr. Hayes: indicated see column-with power density included in the 15 column.. 16 17 Chair: advised Ms Warren to stick to the facts and stay away from the interpretation. 18 19 Applause drowns out the name of next abutter, 257 Main Street,home values are hard to 20 follow but irrelevant. Don Elliott asked how many people use cell phone? How many 21 people here attend and vote at Town Meeting? At Town Meeting it was determined what 22 was in the best interest for the Town and voted clearly that there shall be no cell tower 23 without a 600-foot setback. 24 25 Chair want thru information to make a decision. Judy: read following letter from David 26 Deeds...(Paraphrase)....Church leadership.and its members have taken steps with their 27 neighbors and community to get neighborhood feedback........as part of this process our 28 'Church has compiled a binder w/research and opinions and research studies compiled by 29 neighborhood residents. Investigated their concerns regarding health and encouraged by 30 the finding which was not paid for by Wireless companies.....-..studies indicating that 31 such installation would be significantly lower than what would be necessary to cause 32 harm etc. 33 34 Atty. Morin: bows historyof Building Inspector's interpretation of 600-foot setback. 35 36 He doesn't remember if T Mobile got a variance from ZBA in 2002? 37 38 If 600-foot setback was to prohibit any wireless installation regardless of what 3.9 installation or non-health related impact was then application of setback would violate the 40 Telecommunication Act. Inspector has obligation to interpret the Bylaw to be consistent 41 and in conformance w/Telecommunication Act. 42 43 Thea Fournier: spoke stating setbacks are allowable under the Telecommunications Act, 44 you can't prohibit a cell tower company from coming in but you can site where they go. 45 Requirements under First Circuit Court of Appeals asked for proof if the site is in the Page 8 February 24, 2009 Minutes 3�f DRAFT Jen's edits 4/1/09 Mary's edits 4/6/09 Approved 4.`7/09 1 right place and prove there are no alternative places etc. Process begins in the ZBA. 2 (paraphrase).... She would challenge in a court of law health effects,Telcom Act talks 3 about environmental effects it does not talk about health effects and it has been 4 challenged in Europe,most recently in France(Chair: stated we're not in France). We 5 don't want this kind of business in the middle of our neighborhood, and she wants her 6 rights. She expects PB as leaders of our Town to uphold our rights, otherwise she doesn't 7 know why you guys are sitting there, applause......she doesn't back down when she went 8 to court with Mr. Morin the last time it took effort on her part to stand up and do it 9 because she didn't have the Town Leaders backing up residents, if you won't stand up for 10 -a law you shouldn't have it. Doesn't get it when a church morally doesn't care about the 11 neighborhood. Applause.....She feels bad that we don't have a Town that has the balls to 12 stand up for its residents. 13 14 15 Chair: asked if all PB members will be here next week? Board said yes. 16 17 Chair: ran thru criteria that PB has to use to judge the application. 18 19 1. Significant gap in coverage, there was demonstrated a significant gap in coverage 20 and proposed site fills the coverage gap. 21 - 22 2. - Where there is not an alternative site available. Speculative if Stevens Estate 23 would be available. RR said if gap is in Southern end of Rte. 125 then church site closes 24 the gap better than Stevens Estate would. If it's closing maximum gap along Rte 125 25 then Stevens Estate closes it's better than proposed site does but sacrificing the gap in the 26 neighborhood itself. 27 28 3 Health issues: all evidence is RF levels are substantially within compliance with 29 FCC guidelines. 30 31 4 Antenna can't fall down cause it's enclosed within tower. 32 33 5 Visual that it's ugly don't exist. 34 35 6 issue of applicability of Zoning Bylaw. Building Inspector is the Zoning Office is 36 the one who makes the interpretation of the Bylaw and believe that no variance is 37 required. 38 39 7 RR: said Liz Fennessey brought up inconsistency over the years. The PB 40 followed the direction of the Zoning Enforce Officer. 41 42 Judy: said she has amended application w/church as co-applicant, named the other reports 43 the PB has NEPA etc. In-house reviews and VHB reviews were done in compliance with 44 the compliance with the Bylaw. -45 Page 9 February 24, 2009 Minutes 35 DRAFT Jen's edits 4/1/09 Mary's edits 4/6/09 Approved 4/7/09 1 Chair: said keep this.open until the next PB meeting just in case something else comes in. 2 3 RR: said waiver issue in his opinion is requested that they don't comply with application 4 requirements .........entertained a possibility of it if they had requested a waiver when 5 they submitted the application but not at this point. WW: this Bylaw is clear. PB will 6 agree to keep the record open for time to comply. 7 8 Liz Fennessey: said on June 5, 2001 meeting occurred by PB in revisiting the proposal a 9 variance is required for a 600 foot setback?......Chair: advised you should go back to PB 10 Minutes of Meetings to fully understand your question. -12 Judy wants a waiver on file until March 31,2009. 13 14 Judy said other waivers that have been requested. 15 1. waiver distance at grade..... 16 2. waiver contours at 2 feet within-300 feet applies for monopole facility etc. 17 3 waiver for location of wetlands within 100 feet ...... 18 4 waiver for design landscape plan trees and shrubs.... 19 20 Judy wants these waivers because it's a collocation opposed to a new facility. 21 22 Steve Tryder: is-another wireless joining this application? No they-can't. 23 24 This meeting is scheduled for March 3, 2009. 25 26 Time now is 9:55 pm 27 '28 8.9 re-write by Judy. 29 Judy submitted to Town Manager, Town Clerk the version of the Bylaw that she 30 submitted to the Board and accepted as part of the warrant by BOS last.night. That is the 31 only item on the warrant by the PB now. Down town initiative Bylaw was submitted and 32 will be on the warrant accepted by BOS and sponsored by Community Development 33 and not by the PB..committee continues to meet and if they wish to submit a Bylaw it 34 will have to be submitted as a citizens petition and would need to be heard by the PB as 35 with any other change. 36 37 RR: what's with storm water management?That's not a PB Bylaw. It was submitted and 38 accepted as part of the warrant. 39 40 TS: asked is there aplace holder for specifics of the Bylaw wireless re-write?.......Judy 41 said there will be a full public hearing and the committee will come up with a revised 42 version of the Bylaw. TS needs clarification of word-smithing,.....send comments to 43 Judy. JS:wants to deal with this issue piece by piece. 44 Page 10 February 24, 2009 Minutes a� DRAFT Jen's edits 4/1/09 Mary's edits 4/6/09 Approved 4. - 1 Judy: asked if everyone could make March 3rd?PB said yes. March 17th MW can't make 2 that meeting. Everyone get back to Judy on this. 3 4 RR: wants Judy to send stuff to work and to home? 5 6 Liz: can the public attend a meeting on discussing of specifics of the Bylaw? PB said 7 Yes. 8 9 Mr. Tryder: said Judy and Curt are on the committee for Bylaw re-write. Did PB ask 10 them to write a different Bylaw than what the committee recommend? Chair :said they 11 had no draft and had to put a place holder there because committee didn't come up with a 12 draft.RR: said original committee was formed 2 years ago, and PB stayed out of the fray 13 and committee didn't come up with are-write of Bylaw. PB would not go another year. . 14 with no change. If they end up with 2 warrant articles then the Town can make their 15 decision. Mr..Tryder: said you have undermined the committee. 16 ' 17 Thea Fournier: said she attended 36 meetings and she is the only one that has missed one 18 meeting. She came up with a Bylaw and told it would never fly with BOS or PB, it was 19 probably Curt Bellevance who advised her to just do a citizen petition. She worked so 20 hard and nothing got done. She was re-elected to a board and it took until September for 21 people to be elected to the board. Committee has two people employed with the Town, 22 and another person is a committee member who.morks.for wireless committee and that's 23 a conflict of interest. Thea: said Judy toldcommittee if you guys don't get something 24 produced by middle of January we'll write our own. Thea: feels she was undermined and 25 given up hours of her time and feels totally undermined by the people on the committee 26 that,should be working with us them to get something good and done.. 27 28 TS: said you are describing a committee that you call a sham, .......a year ago the 29 committee had close to a finished draft and as a committee thought it's a good idea to get 30 buy in of.BOS,ZBA, and PB. Draft not circulated because didn't have it done until 31 February,Tim: asked do we hold out for another year or go forward w/citizens petition 32 and go with another year and Thea said l'et's go with a citizens petition. It's been 2 33 years, things are due on Friday and we've seen nothing other than some drafts. 34 - 35 Perhaps if your committee produces a Bylaw to put in front of Town Meeting,we 36 endorse it, or not; say no comment,if we don't like what we see(which is a possibility) 3 7 it's irresponsible.of us to go back in front of Town Meeting to say we have nothing else . 38 to offer you we are fulfilling our obligations that we have to the Town to at least be able 39 to produce something now and it's been 2 years with no Bylaw. Thea: accused Tim of 40 not coming to the committee meetings, Thea: wants to see the records of attendance. TS: 41 said as you know there are no records, and Thea is being disingenuous. Where was 42 Steve Tryder at these meetings? 4: 44 Mr. Tryder: stated he quit. 45 Page 11 February 24, 2009 Minutes 37 DRAFT Jen's edits 4/1/09 Mary's edits 4/6/09 AAmroved 417/09 1 TS: feels this is very disingenuous to create a committee and call it a sham and then 2 blame the PB. 3 4 Cindy Allen: If somehow a Bylaw gets written that's clear and it gets put in 5 the warrant and it gets passed does it go into effect for this existing application? 6 MWsaid no. 7 8 Can the resident provide the PB the ability to say No? Chair: said two things don't have 9 any connection. 10 11 Thea: said the Bylaw as it stands is clear it's being portrayed as being flawed but it isn't 12 and it's clear. 13 14 . _ 15 16 PUBLIC HEARING: 17 ® None 18 19 20 21 ® APPROVE MINUTES OF THE MEETING: 22 January-27, 2009"Minutes". 23 24 Motion by JK to approve the January 27,2009 "Minutes", 2nd by MW,vote was 25 unanimous_ 26 27 ® PLANNING BOARD MEETINGS: -28 February 3, 2009 cancelled 29 February 17,2009 cancelled -30 March 3,2009 31 March 17, 2009 32 33 Motion by JK-to adjourn the meeting, 2nd by MW meeting adjourned.at 34 approximately 10:30. 35 36 37 38 39 40 By order of the Planning Board 41 42 43 Approved Page 12 February 24, 2009 Minutes 38 Judy took Minutes Mary made additional edits DRAFT 3/31/09 4/6/09 Mary's edits approved 4/7/09 1 Town of North Andover 2 Planning Board 3 March 3, 2009 4 Minutes of the Meeting 5 7:00 PM 6 7 Members present: John Simons, 8 Jennifer Kusek, Clerk 9 Richard Rowen, regular member 10 Timothy Seibert, regular member 11 Michael Walsh, regular member 12 13 Member absent: Courtney LaVolpicelo, alternate 14 15 Staff present: Judy Tymon, Town Planner 16 17 Staff absent: Mary Ippolito, Recording Secretary 18 19 20 Chair announced he would hear MetroPCS draft decision first. 21 22 POSTPONEMENTS: 23 none 24 25 DISCUSSION: 26 Traffic Signal: 27 o Mr. Thomson, 210 Holt Road, applicant has installed signalization at Holt Road 28 and Rte. #125, as required by the Board of Health — site assignment and the Planning 29 Board's Site Plan Review decision. There are remaining funds to be placed in an escrow 30 account to be used for future changes to the installed traffic signals. Mr. Thomson to 31 attend. 32 33 Judy did not get a response from Mr. Thomson. Chair: can get his attention by telling him 34 PB isn't going to give him some money back. JT: he may be on vacation. 35 36 DISCUSSION: 37 o JT: would the PB like to have a discussion on March 16d' about the wireless 38 bylaw? The Committee would like to come to the next PB meeting to discuss changes. 39 Chair said whoever comes should not have the intent to fight. It's got to be a good faith 40 discussion on both sides. PB would like to see something submitted in advance by 41 Committee. Yes, put it on March 16''agenda. 42 43 44 Page 1 March 3, 2009 Minutes 3q Judy took Minutes Mary made additional edits DRAFT 3/31/09 4/6/09 Mary's edits approved 4/7/09 1 2 DISCUSSION: 3 s. Chair: regarding down town overlay district? Does it eliminate or modify with 4 setbacks? IT: there is language in there it's overlay district language about mixed use 5 and dimensional language. 6 7 Chair: start with a redevelopment mentality and then build the zoning around what you 8 think you are going to be able to do. Look at it as a parcel by parcel basis. To just think 9 you are going to just tweak a few things is going to make it better, it's not! Send PB a 10 version of it and ask Curt to come to our BP meeting. 11 12 13 Chair called for CONTINUED MEETINGS: 14 15 0 John Cahill— 166 Salem Street, Map 37D,Parcel 21. Definitive Subdivision 16 known as The Captain Nathaniel Berry Homestead, consisting of a new 292 foot long 17 roadway and 3 new proposed lots each containing 25,000 s.f. &existing lot containing 18 32, 174 s.f. with existing single-family dwelling within R-3 zoning district. Meeting not 19 closed. Waiver on file until March 31. 2009 final plan submitted 2%18/09 20 21 IT: has a copy of 2-page review document that she had put together, and a memo from 22 Gene Willis on 3`d page, and copy,of E-mail received from Chief Martineau. 23 24 Phil Christensen,Engineer,was present,there are two lots there now and existing house 25 and form A lot on the right,provided a 50-foot right of way,asked for a wavier on 26 roadway construction and basically have a driveway. IT: there should be a plan showing 27 without waivers the 3 lots similar to what was shown with the 4 lots. 28 RR: work to make sure plan is totally conforming 29 don't need another sheet showing cul de sac 30 sheet 1 is fine showing road not built according to Town standards 31 Deed restriction 32 Decision will be recorded 33 add another rain garden where depression was 34 Salem St. is at crest and is super-elevated towards cemetery 35 flow goes to 2 catch basins on either side of entrance 36 Gene wants driveway to go downhill. Match edge of existing pavement and then 37 go downhill 38 line of easement 39 will wall come down? 40 keep the stonewall if possible 41 42 Address: 43 Chief Martineau prefers 166 Salem St. address. 44 Residential Sprinklers: Page 2 March 3, 2009 Minutes Judy took Minutes Mary made additional edits DRAFT 3/31/09 4/6/09 Mary's edits approved 4/7/09 1 Order of Conditions: required them for all subdivisions 2 life safety issues 3 feels very strongly that if sprinklers are properly installed they save lives 4 has no problem w/no hydrant and no cul de sac, show this in Order of Conditions 5 if more than 50%re-construction, would like sprinklers, life safety. 6 7 Changes to be made to plan: 8 add small rain garden at depression 9 10 Sprinklers: 11 Chair has no problem not requesting sprinklers for existing house but would like 12 to have 2 new houses sprinkled. 13 14 Jack Cahill: Existing house has been cleaned up, no construction done. Tiffany Lane 15 sprinkler installation was done at request of previous Fire Chief, as Tiffany Lane is 16 located far out country. Engineer has located fire hydrants at two locations on 166 Salem 17 St., and Mr. Cahill prefers not to install sprinklers. In consideration of time and distance 18 rational it seems that to sprinkle 166 Salem St.property would be unreasonable. 19 20 Chair: there are other circumstances that PB would ask for a structure to be sprinkled, not 21 just distance, additional factors as well were considered such as a very long driveway. 22 23 TS: are sprinklers an expense issue? 24 25 Mr. Cahill: thinks it's unreasonable,he doesn't see any benefit to sprinklers, they are 26 ' deficient rather than efficient. 27 28 Chief Martineau: feels strongly about approving sprinklers, Tiffany Lane being the first 29 one because it was so far out,there.were also additional residential structures in far out 30 areas that were sprinkled, also, Leanne Drive which is located next door to the Fire 31 Department was sprinkled. If sprinklers are properly installed then they don't cause 32 problems. 33 34 TS: in general has no issues 35 36 RR: in general has no issues 37 38 JK: in general has no issues 39 40 MW: in general has no issues,has no problem requesting sprinklers 41 42 Chair: thanked Mr. Cahill for time and effort he put into this,keep this open and draft a 43 decision for the next meeting. 44 Page 3 March 3, 2009 Minutes q1 Judy took Minutes Mary made additional edits DRAFT 3/31/09 4/6/09 Mary's edits approved 4/7/09 1 o John Cahill— 166 Salem Street,Map 37D, Parcel 21,Watershed Special 2 Permit to construct a new 292 foot long roadway and 3 new single-family homes, 3 portions of the roadway, one house and a storm water detention/infiltration basin will be 4 within the non-discharge buffer zone. Meeting not closed. Waiver on file until March 31, 5 2009. final plan submitted 2/18/09 Chair said: keep this open and draft a decision. 6 7 8 DISCUSSION: 9 Sign Bylaw: Atty.John Smolak to present: 10 Chair: In a couple of cases we were able to waive filing requirements, notion of waiving 11 zoning related dimensional requirements is not something we've ever had the right to do, 12 doesn't want to take authority that the Board should not have. 13 14 Atty. Smolak: is representing RCG, 21 High Street applicant. They have been going thru 15 the multiple phase development for redevelopment of the East Mill site. Already gone 16 thru 2 phases, about another 2 phases away from completion. He wants a master 17 comprehensive plan for this site. RCG has been working w/Community Development to 18 create a better understanding of the signage plan for Machine Shop Village. Chair: RCG 19 is going to make a contribution to Community Preservation Committee for that signage 20 as well. Because this property is within the I-S zoning district it enabled RCG to propose 21 a PDD. He's provided a master plan and is referencing the last two pages regarding types 22 of signs,but in that master plan it didn't pay particular attention to the signage 23 provisions. 24 25 RR: As part of the overlay district, can a mini sign bylaw be set.up within the district? 26 JT: Machine Shop Village is a historical conservation district, so it doesn't have a 27 corresponding overlay it governs appearance, get permission for certain exterior 28 improvements. 29 30 Chair: who is the granting authority for sign bylaw: JT: it's Building Commissioner and 31 he issues the building permit. 32 33 Atty. Smolak requested that the PB approve the sign bylaw and condition it accordingly. 34 Our Bylaw has a waiver condition that allows PB to waiver requirements. See Section 35 11-5 as opposed to Section 6. 36 37 JT: summarized that Atty. Smolak is asking the PB to go beyond Section 16 the Overlay 38 District and waive the requirements. Atty. Smolak: yes,it's under the guise of a SP so if 39 PB doesn't like what they see then condition it accordingly. 40 41 JT: there should be consistency in design standard for Machine Shop Village and with 42 our down town area. 43 44 TS: RCG is doing a great job and he's inclined to help them out. Page 4 March 3, 2009 Minutes Judy took Minutes Mary made additional edits DRAFT 3/31/09 4/6/09 Mary's edits approved 4/7/09 1 , 2 JK: agreed. 3 Atty. Smolak will file the article. 4 5 6 7 CHAIR CALLED for MetroPCS first: 8 @ Metro PCS, 70 Elm Street, Special Permit,proposes to install 6-panelantennas 9 at a centerline of 80' in existing church steeple and related BTS cabinet within R-4 10 zoning district. Waiver on file until March 31, 2009. 11 12 Tim Seibert recused himself from voting on this petition. 13 14 . Chair and PB will edit draft decision: 15 16 Bill McQuade was present, stated he submitted a report which complied w/8.95di4 17 (location filing requirements of Bylaw) showing a map of other pre-existing and 18 approved wireless facilities in N. Andover and outside of N. Andover with one mile from 19 it's boundary. List of 40 sites were compiled by his RF Engineers. Some sites actually 20 contain t%o facilities in some cases.Note by Judy#16 should be Middleton. 21 22 Bill Pastus zzek,Newton,MA,real estate appraiser,presented areal estate study. He 23 viewed 70 Elm Street site and collected information on some of the competitive sites and 24 prepared the study presented to the PB tonight. First part contains analysis and second 25 part contains data as back up for the reportregarding antenna in church steeple. Reached 26 conclusion that there is no impact on real estate value(report for the record). Look at 27 location D in Newton, Lincoln St.,mixed uses in addition to a Church, that steeple 28 contains communication equipment within the steeple but has an antenna plainly visible 29 on the top. Looked at condo sales and single-family sales; in looking at the sales in close 30 proximity to the Church he saw no real difference in prices based on market. 31 32 MW: in your methodology did you include talking with realtors,brokers, assessors,home 33 owners, and were they all included in each of these sites? Mr.Pastuszek, in some cases it 34 depends on the site.Newton site he spoke to brokers, assessors, appraisers, homeowners 35 in close proximity, spoke to church secretary, inquired if they received any feedback 36 about the installation and he didn't. 37 38 JK: how long have the towers existed? Mr. Pastuszek: Newton towers have been there 6 39 or 7 years. Location of tower on Mass Ave. in North Andover that tower is less then 2 40 years old. Tower in Haverhill 4 or 5 years. 41 42 Chair: PB is about to close the public hearing and asked that if members in the audience 43 wished to make a comment to please make the comment relative to something that the PB 44 has not Iieard already or that it pertains to one of the topics raised this evening. Page 5 March 3, 2009 Minutes LA3 Judy took Minutes Mary made additional edits DRAFT 3/31/09 4/6/09 Mary's edits approved 4/7/09 1 2 Steve Tryder, Chestnut St., Is there any documentation, and did people who bought the 3 property know that a cell tower was installed in these Church steeples when they 4 purchased or sold? Mr. Pastuszek: some were aware and some were not. Mr. Tryder:is 5 this documented in your report? Mr. Pastuszek: doesn't know if it is. 6 7 Mr. Tryder: Mr. Pastuszek's study is a study of sales and neighborhoods that have 8 churches; there is no variable of cell antennas in that study,no documentation that the 9 buyer's knew that cell towers were installed. Mr. Tryder feels this report is invalid and 10 should have no bearing on real estate values. 11 - 12 Thea Fournier, Main St., asked Mr. Pastuszek who paid you to do this report? Mr. 13 Pastuszek, stated MetroPCS. 14 15 James Fennessey, 77 Elm St.,his daughters are being put to sleep about 65 feet away 16 from where the church has decided to put a cell antenna. Stated the Bylaw is being mis- 17 applied by the current Building Inspector. Read letter regarding applying the bylaw to 18 this application. Ironic part is that we're fighting our own Town, asking that BP allow 19 for the application of Bylaw as it was intended and applied in the past. Mr. Fennessey 20 said that RR said even though the outcome is different between the past two Building 21 Inspectors the BP was consistent in following the decision of the Zoning Enforcement 22 Officer? RR said yes. Mr. Fennessey stated: last week Atty. Morin stated that possibly 23 reasoning behind current Building Inspector's recent decision which are contrary to the 24 previous Building Inspectors decision is that the current Building Inspector may feel that 25 any decision he makes while following a 600 foot setback decision would not hold up in 26 court. 27 28 Chair: you're getting into a little bit of hear-say,you're drifting, stay with facts,please 29 finish your statement ....Mr. Fennessey interrupted: ...the BP is following the decision of 30 the Zoning Enforcement Officer on advice of Town Counsel which means the Bylaw 31 passed at Town Meeting is being diluted by the opinion of one person which doesn't 32 seem right. By differing to opinion of Zoning Enforcement Officer and Town Counsel 33 who works not for the PB but for BOS the BP isn't making their own independent 34 'decision with or without input from its own independent counsel, any approval from this 35 Board is based on the Zoning Enforcement Officer and Town Counsel. PB hands are not 36 tired here and a vote for approval is not mandated by any prior decision by any other 37 Town Board. 38 39 Steve Tryder, 300 Chestnut St., —what is appeals process? Chair: Within 20 days of a 40 filing of a decision you can file an appeal in State Court. Chair further answered Mr. 41 Tryder's questions regarding the appeal process. 42 43 RR: if you appeal the decision, you appeal because you may disagree with the 44 interpretation that the PB is following the Bylaw. Mr. Tryder: appeal would include the Page 6 March 3, 2009 Minutes Judy took Minutes Mary made additional edits DRAFT 3/31/09 4/6/09 Mary's edits approved 4/7/09 1 fact that as a PB you are letting the Zoning Enforcement Officer make your decision for 2 you. Chair: we don't want to get ahead of this, PB will make their decision if you don't 3 like the results,of the decision you can appeal it. 4 5 Motion by RR to close public hearing, 2nd by MW, vote was unanimous. 6 7 Draft decision, edits were discussed. RR: check findings of facts: See Section#3 edit was 8 made by Judy. Chair: where did number 4 go, move the numbers down. MW section 17, 9 in findings of fact, documentation is now 16. Chair take what is at bottom of 3 and make 10 it 4 it will be 17 again, so make your changes first and then go back and check the 11 sections. Chair: see condition 15, change after 3-years and make it 2 years. On 12 performance guarantee put in specific amount. JT first one is insurance, second is annual 13 maintenance in all prior decision we did not have an amount, Chair: in 3A just put instead 14 of SPGA just put the Town Planner and the same thing on 3B. JT: look at next page 15 under 4D applicant shall maintain....3B may have been a condition of a wireless facility 16 of Town's own property? Chair take 3B out. JT in 4B there was reference to maintaining 17 .... Chair that should be sufficient then. JT bond amount prior to start of construction is 18 specified it's for$5K. MW in 4A SP issues shall be valid for 3 years, is that what we just 19 corrected? RR no there are two different things. 20 21 Motion by RR to approve SP for MetroPCS, LLC and Trinitarian Congregational Church, 22 as amended a Wireless SP for 70 Elm St. 2nd by MW,vote was unanimous. 23 24 Chair thanked everybody for their civility and patience and... There was a boo from Mr. 25 Tryder who interrupted and said your decision was made long before people lined up to 26 talk to you...thanks for representing your community. 27 28 29 Please note: Chair then moved back to 166 Salem Street(Cahill project). 30 31 32 PUBLIC HEARING: 33 © None '34 35 36 37 Motion by RR to adjourn,2nd by JK,vote was unanimous. 38 39 40 By order of the Planning Board 41 42 Approved 43 Page 7 March 3, 2009 Minutes 'IS Judy took Minutes Mary made additional edits DRAFT 3/31/09 - 4/6/09 Mary's edits approved 4/7/09 1 Plse. note: The Planning Board reserves the right to take items out of order and to 2 discuss and/or vote on items that are not listed on the agenda. 3 Page 8 March 3, 2009 Minutes DRAFT. 4/1/09 4/6/09 Mary's edits approved 4/7/09 1 Town of North Andover 2 Planning Board 3 Minutes of the Meeting 4 Monday, March 16, 2009 5 Town Hall, 7:00 PM 6 7 Members present: John Simons,Chairman 8 Jennifer Kusek, Clerk 9 Richard Rowen, regular member 10 Timothy Seibert,regular members 11 12 Members absent: Michael Walsh, regular member 13 Courtney LaVolpiecelo, alternate 14 15 Staff present: Judy Tymon,Town Planner 16 Mary Ippolito, Recording Secretary 17 18 Chair called the meeting to order at approximately 7:05 PM. 19 20 21 POSTPONEMENTS: 22 none 23 24 25 Chair called for NEW PUBLIC HEARING: 26 o Town of North Andover— 1475 Osgood Street, Map 34, Parcel 16. This 27 application is for a Site Plan Review Special Permit and is a renovation and addition to an 28 existing office building for use as a police station. One-story addition of 3,064 sq. ft.to 29 accommodate a sallyport and detention area within CDD3 zoning district. Application 30 received February 2009 31 32 Ray Santilli,Assistant Town Manager presented,this is Site Plan Review Special Permit 33 for a renovation of what used to be the Merrimack Valley Credit Union to make it into a 34 Police Station for the North Andover Police Department to utilize. Kevin Nigro is the 35 Project Manager. Town Meeting voted in May of 2008 to purchase this property at 1475 36 Osgood St.,hired an architect and is currently working wBuilding Committee and Police 37 station have drawn up tentative plans for the restoration of the building. Police Dept. 38 project requires an addition on backside of building to house sallyport to transport 39 prisoners into building and cellblocks along with State and Federal requirements etc. 40 41 Chair: what is traffic pattern, lighting,how close to residential property and drainage? 42 43 Mr. Santilli: Police will utilize entire building as is presently constructed,public access is 44 by Orchard Hill Road,back side of building is restricted to police personnel &marked Page 1 March 16, 2009 Minutes of the Meeting �l DRAFT 4/1/09 4/6/09 Mary's edits approved 4/7/09 1 vehicles. Two control gates are located to control access; public access is on Osgood 2 Street side. Mr. Breen's property is the only resident adjacent to 1475 Osgood St. 3 Several businesses located at backside which access off of Orchard Hill Road, a dance 4 studio, gas station, Dunkin Donuts, etc. is located to the side. 5 6 Worked funding thru capitol improvement budget for FY'09. No changes to be done to 7 outside of building other than securing access to back addition. Fire Department has 8 approved passage of fire trucks thru area. It's a one-way counter clockwise access 9 around the building. 13' 7" foot roadway on backside of building for police vehicles to 10 exit. 11 12 Judy: replacing existing impervious surface- there is actual decrease in impervious 13 surface. Mr. Santilli: renovating basement level and first floor, utilizing entire second 14 floor and going to ZBA for variance for rear setback. 15 16 Judy: submitted a review today,requesting a waiver of community impact, fiscal impact 17 and traffic impact. Mr. Santilli: is not requesting a waiver of the Commonwealth 18 Review because there are no requirements for that, landscaping will remain as is. 19 Meets required parking under zoning, lighting will stay the same and be downcast and 20 will add more lighting in sallyport area. 21 22 JS: flat roof, any run_off? Kevin Nitro, PMA Consultant Services, developing plumbing 23 plans and will be collecting from flat roof the rainwater and enter into existing drainage ..24 system,this should introduce less water into the system.. 25 26 Mr. Santilli: spoke w/previous owners were told there have been no identifiable issues 27 regarding drainage. 28 29 Memo from Gene Willis, DPW,identified a few.catch basins that need to be lowered and 30 paved around them. 31 32 Fire Department provided a letter stating fire truck can get around the perimeter of the 33 property. Applicant needs to provide information to the BOH stating current septic 34 system will be able to handle this new usage, as this will be done at the time of 35 submission of the building permit. 36 37 Chair: keep this open, advised Judy to prepare a decision. 38 39 40 Chair announced that he would go out of order on the agenda because there are 41 more people here for the Wireless Bylaw: 42 43 44 CHAIR called for CONTINUED MEETINGS: Page 2 March 16, 2009 Minutes of the Meeting �v DRAFT 4/1/09 4/6/09 Mary's edits approve(.4/7/09 1 2 John Cahill— 166 Salem Street,Map 37D, Parcel 21. Definitive Subdivision 3 known as The Captain Nathaniel Berry Homestead, consisting of a new 292 foot long 4 roadway and 3 new proposed lots each containing 25,000 s.f. &existing lot containing 5 32,174 s.f. with existing single-family dwelling within R-3 zoning district. Meeting not 6 closed. Waiver on file until March 31, 2009 final plan to be submitted.on 1/16/09. 7 Judy's edits: see waiver for 50-foot right of way strike it under Special Conditions. Phil 8 Christenson did submit corrected information such as zoning district,rain garden. 9 Motion by JK to close 166 Salem Street Definitive Subdivision and Watershed Special 10 Permit, 2nd by TS, vote was unanimous. 11 12 RR: page 2 Earth Removal Permit, is it pertinent- is it prejudicial in PB decision? Chair: 13 take it out and include it in Findings of Fact instead. Say they don't need earth removal 14 permit.... etc. Chair: put Earth Removal.Permit language and add dates in Watershed SP 15 as well. Chair: in Finding of Fact put it toward the beginning of this decision see C or D 16 final pzoposed plan, say...is less intrusive,but better environmental impact, for example 17 they don't have to apply for earth removal permit. - 18 19 Chair: under 2 first bullet that is the one. Chair: reference that what PB has done ...that 20 PB waived actual construction of roadway to Town standard. Chair : we need it for the 21 record because if PB ever wants to do this in the future it needs to be clear what PB did, 22 if som tion comes back in the future and they want snow removal they won't be able to 23 get it because it's a private way. Judy did include this is the decision but Chair wants it 24 in wri:ing for the record. Chair: there can't be any further subdivision of the property, 25 can't grab off another lot for the future....put that in decision. Chair: at end of list of 26 waivers,reason is because of positive environmental impact and better sensitivity to the 27 land 28 29 Cha all street address need to be on intersection of Salem St. 30 31 RR: granite stone have all three street numbers on it on a stone bollard. 32 33 RR: will stonewall on Salem St.be rebuilt? 34 35 Jack Cahill: stonewall will definitely be rebuilt,blended and rounded and replicated at 36 existing fence. Chair: suitable plan will be submitted for wall and fence to be reviewed by 37 Tovm Planner. 38 39 Strike sign saying private drive. 40 41 JK: see hours of operation during construction ..Say"hours of construction". 42 43 Motion by RR, to approve Definitive Sub as amended this evening,2nd by TS, vote 44 unanimous. Judy send a copy before you file. Page 3 March 16, 2009 Minutes of the Meeting �9 DRAFT 4/1/09 4/6/09 Mary's edits approved 4/7/09 1 2 3 4 CONTINUED HEARING: 5 o John Cahill— 166 Salem Street,Map 37D, Parcel 21_Watershed Special 6 Permit to construct a new 292 foot long roadway and 3 new single-family homes, 7 portions of the roadway, one house and a storm water detention/infiltration basin will be 8 within the non-discharge buffer zone. Meeting not closed. Waiver on file until March 3 1, 9 2009. final plan to be submitted 3/16/01171 10 11 Chair: current design limits the intrusion by limiting the detention pond.Chair: Put in 12 something like the overall design of.....Chair: earth removal permit do the same as 13 subdivision,wrap earth removal into lesser impact. Judy already has it in there. Judy said 14 she would take out something. 15 16 Motion by RR to approve a Watershed Special Permit for 166 Salem as amended this 17 evening, 2nd by JK,vote was unanimous. 18 19 PB thanked Jack for working w/them on the 3-lot subdivision; it should look much better 20 than a traditional Definitive Subdivision. 21 22 23 LOT RELEASE 24 N Dean Chongris—Redgate Subdivision. Developer is requesting two Lot releases 25 for lots 1 and 2. Lots 3 and 4 were previously released in August 2007. 26 27 Mr. Chongris could not make this meeting,however,he stated that he would send an 28 attendee to represent him tonight. Apparently,the attendee was a`no show'. 29 30 Chair: PB isn't going to give Mr. Chongris a lot release for lots 1 and 2. Chair: there are 31 water problem that go onto Salem St.,which caused an accident. 32 33 Judy made a site visit and explained her site visit of this property. 34 35 Chair: Have Gene Willis,DPW, and direct Mr. Chongris with making changes to redirect 36 the water flow issues. 37 38 RR: Mosquito Brook is underneath this property and it floods adjacent lots. Flood plain 39 for Mosquito Brook is on the other side of the street. If this complex is not done just right 40 then it's difficult to manage the site. Builder dug up more than they should and haven't 41 pulled down tree coverage. Chair doesn't want to release any more lots until they resolve 42 their problems. PB needs to know from Gene Willis if there are problems or deviations 43 from the plan. 44 Page 4 March 16, 2009 Minutes of the Meeting 50 DRAFT 4/1/09 4/6/09 Mary's edits approved 4/7/09 1 2 DISCUSSION 3 a Wireless Bylaw—Members of the Wireless Bylaw Committee will be present to 4 discuss their version of proposed changes to the Wireless Bylaw. 5 6 .7 Judy provided the PB with a summary tonight. She provided a version of the Wireless 8 Bylaw that she drafted presented to the Town Clerk and it's on the warrant. There is a 9 version of the Bylaw that the Committee has drafted. 10 11 The following is a summary: 12 Matthew.J. Ginsburg, Esq. -Chairperson of Wireless Bylaw Committee. Atty. Ginsburg 13 has a disagreement between members of what the makeup of what the Bylaw should ".14 contain. Because the Committee did not come up with a draft Bylaw in time to have . 1'S something placed on the warrant to present to the PB an alternative to.Judy's draft 16 (doesn't know:to what extent.PB had input to Judy's draft)but he understands his 1 T oppo,rtunityis to present to the PB an alternative to what Judy has provided. 18 19 A". Ginsburg: Regarding review of redline version there are many more things in 20 common than differences. Tried to retain current Bylaw and what Judy proposes. Most 21 significant difference has to do with setback section. In Judy's draft there is a distinction 22 drawn between application of a 600-foot setback to new construction of new towers and 23 to existing structures. His draft does not contain a distinction of application of 600-foot 24 setback. 25 26. He wants to apply the setback only to properties in which.residential, educational, or 27 child care usage were in existence at the time of the application,so that bring back a lot 28 of sites.that might be zoned residential but don't have a residential, educational use or 29 childcare use on the property. His draft opens.up a lot of areas in the Town for potential 30 placement of Wireless facilities. Make sure there are sufficient areas in Town for 31 consideration of structures,but avoid placement near residential and densely populated 32 residential areas. He-tried to make uniform to both types of applications. 33 34 Karen Carroll: explained that track changes from existing Bylaw are there, and then 35 Committee did their changes in different colors. 36 37 TS: who else has seen their version of setbacks? Atty: Ginsburg: ZBA was not provided a 38 copy of this information. Assumed that Atty. Urbelis was cc'd on a lot of 39 correspondence that went back and forth. 40 41 Judy: Atty. Urbelis has written memos regarding setbacks regarding changing the 600 42 foot setback. 43 Page 5 March 16, 2009 Minutes of the Meeting 51 DRAFT 4/1/09 4/6/09 Mary's edits approved 4/7/09 1 RR: this is a recommendation from the Committee, at this point PB has what they thought 2 would be good and is on the Warrant and this is a recommendation from the Committee 3 and PB should do everything they can to help get that in front of the Town and the Town 4 can.choose what the Town thinks is the better way to go. RR wants to spend time 5 critiquing it the Committee's Bylaw now. 6 7 Please note: Edits are not submitted in any chronological order. See attached redlined 8 version of Bylaw for reference: 9 10 RR: regarding put tower in shallow field, the height could only be 10 feet high, wouldn't 11 work from a practical point of view. ....should be corrected, it's too restrictive.(Judy: see 12 page 3 C ii). 13 14' RR: regarding antenna can't be higher than-the tallest building...too restricted and modify 15 this on the floor of Town Meeting if need be. 16 17 RR: if open area not camouflage with dense trees (scenic landscapes and vistas under 4D). 18 19 RR: Filing requirements 5 D 2 &3....putting a lot of detail on a map at a scale of 1 to 20 1500...showing existing structures, RR doesn't think you're going to get there. 21 22 RR: See page 4, 1 second portion of sentence V 1 .....minimum setback of 600 feet 23 etc...Atty. Ginsburg: it should say from the property line of all buildings or structures or 24 from properties, which contain buildings or structures. '25 26 RR: 3B 2 applicant shall burden there are no feasible existing structures etc.....RR: it's 27 not the correct burden to put on applicant. 28 29 RR: 3A 2 it says shall not exceed terms and conditions of SP etc. what does Atty. 30 Ginsburg mean by that? Atty. Ginsburg: it's verbiage in SP now. Chair: it makes 31 reference for Site Plan Review but this is for a Special Permit for a wireless facility only. 32 33 RR: has language gone away saying we treat this like a license for three years? Judy: she 34 took that language out of the version she presented, the provision that requires the 35 applicant to renew the license in three years. 36 37 RR: language about fines isn't enforceable! Judy: she took that language out. 38 39 Atty. Ginsburg: asked what is history of trying to collect fines? RR: if PB tried to collect 40 those fees we would be in court. Chair said if you tie fine with license approach there 41 was a technical violation because some licenses were not current,however, if someone 42 did violate the Bylaw the fine remedy should be the same one that exists anywhere in the 43 Bylaw for the same reason that anything else exists,but wordsmith it. 44 Page 6 March 16,2009 Minutes of the Meeting DRAFT 4%1/09 4/6/09 Mary's edits approved 4/7/09 .1 RR: if applicant wants to change out antennas then he should come back for a 2 . modiffcation of the SP to change equipment, provided that it is no worse than it was then 3 he should be able to replace old antennas....see maintenance section. 4 5 Atty. Ginsburg: there are monitor and maintenance requirements already. 6 7 RR: if every three years you have to demonstrate you are operating within bounds of SP? 8 9 Atty. Ginsburg: monitor of noise levels, general maintained of structural integrity. Atty: 10 Ginsburg: within 90 days they prove that certain standards are being met and that at 11 annual intervals of that date. He thinks RR is referring to the renewal requirements? 12 Atty. Ginsburg: his Committee voted to keep Judy from throwing out the renewal 13 requirement for 3 years, the important part are the monitoring requirements because it's 14 important that the carriers be held to those and fines are important. Chair: If PB didn't 15 get certification on a wireless facility to say that we can collect$300.00 a dollar for each 16 day that it's late is a enormous stretch etc. 17 18 Curt Bellevance: Atty. Urbelis recommended if we follow any violation of Bylaw a letter 19 should go to violator saying why haven't you done what you were supposed to do, send 20 another letter if you don't respond within 30 days then the following measure would take 21 place. 22 23 TS: what if they ignore the final letter? RR:then shut them down, carrier would do so at 24 their own risk, PB is saying they take the whole process seriously,they could put this as 25 language in time for Town Meeting. Chair- Judy draft this language along lines that RR 26 said. 27 28 RR: under monitoring and maintenance,measure the before conditions and the after 29 conditions but on a yearly basis (existing and current are one in the same). Atty. 30 Ginsburg: Annual intervals from date of issuance of SP. 31 32 RR: Edits: See page 10 section 8 VIII p2. If applying for a permit in order to determine 33 compliance provide statement existing and maximum of....RR doesn't know if this is 34 possible to do? Chair: it's the second part that is a problem because it's moot. 35 36 Atty. Ginsburg: it refers to permit being requested as to collocation in future. RR: what's 37 happening if applicant wants to install 3 antennas,but application is for 6. However, what 38 is max he can put up? However, applicant is not in a position to say how many antennas 39 will be put up by other cell tower companies. Ask applicant to forecast the maximum 40 that only he can do. Chair: take the word maximum out and it will be fine. 41 42 Chair: in the draft that PB had they took new tower in one category, additions to existing 43 towers and effectively put into the same category if you hid something inside of an 44 existing building that that was the same. Chair: believes that Atty. Ginsburg's draft Page 7 March 16,2009 Minutes of the Meeting 53 DRAFT 4/1/09 4/6/09 Mary's edits _ approved 4/7/09 1 makes no exclusions for anything except for existing towers, if existing tower is within 2 600 feet? 3 4 Atty. Ginsburg: he.believes collocations require it to comply with 600-foot setback. 5 6 Atty. Ginsburg: impact of tower monopoles visual impacts on property values, Bylaws .7 are designed around. There is legal president that supports notion that even aside of 8 visual impact, esthetic issues and property values and consideration of property value 9 provides justification for requirements for setbacks from wireless facilities. In 2007 case 10 in N.H. court-found apart from visual impact that decline in property values was 11 sufficient evidence to support the ZBA decision denying a permit, (it was a new tower). 12 13 Chair: 600-feet is a presumption that there is an impact on property values? In case of 14 monopole adding additional antennas what is effect on property values? 15 16 Atty. Ginsburg: governed by 40A Section 6 regarding legally non-conforming uses, 17 needs reference to statue requirements and could be reconsidered, major issue is 18 placement on existing structures, having setback in those setbacks is defendable. Town 19 of Concord requires 500-foot setback from existing structures such as childcare, school 20 uses. Town of Hamilton etc. ......Town of Wakefield etc....... 21 22 TS: interesting you mentioned 500 feet from structures and not from property lines. Have 23 any of these been challenged? 24 25 Atty. Ginsburg: he doesn't know. 26 27 TS: has anyone tried to site one and been denied?Atty. Ginsburg: doesn't know. 28 29 Chair: N.H. case is free standing structure. Atty. Ginsburg: largest issue is property 30 value issues. Chair: if you can't see it nor hear it why do you need 600-feet? 31 32 Atty. Ginsburg: property value isn't born of visual impact or noise; decline in property 33 value by itself is substantial evidence for denial of the permit. 34 35 RR: is your intent to say no lattice-no guide towers in town? 36 37 Atty. Ginsburg: Gin Valanti said visual and standpoint they are undesirable. 38 39 Thea Fournier,Main St.,we don't get sued for having setbacks. Atty. Ginsburg was clear 40 in giving reasons for setbacks. Courts don't prohibit setbacks. It's a matter of whole 41 Bylaw prohibits provision of wireless service communications. Issue is there is 42 significant gap in coverage? Wireless people go to court and find there are alternative 43 sites they can use to uphold their setbacks. 44 Page 8 March 16,2009 Minutes of the Meeting S� DRAFT 411/09. 4/6/09 Mary's edits approved 4/7/09. 1 Chair told Judy to make edits tonight to PB version but give Wireless Committee a 2 -version of a PB working copy. Put this on as discussion for April 7, 2009 PB meeting 3 agenda. Town Meeting is May 120'. Judy: what is date for public hearing for annual 4 Town Meeting? Formal hearing on 21 sc and talk about it on the 7h for discussion. 5 6 Karen Carroll: is there a placeholder on the Warrant for a draft of the Committee's 7 '3ylaw? 8 9 Chair: only article on Warrant is PB article at this point as the Warrant is closed as there 10 wasn't an article submitted by the Committee. PB objective is to review the differences 11 to as few as possible so they have a consistent article. PB can edit the article as long as 12 PB doesn't change the scope of the warrant for instance, PB couldn't take 600 feet and 13 make it 1000 feet because it wouldn't be in the published version. If Chair submits PB .14 version and there are substantial changes that the Committee disagrees with then 15 Committee can make amendment on the floor of Town Meeting to change it. 16 17 RR: It's too late for a citizens petition article, Warrant closed on March 6`h. 18 19 TS: all the more reason if this were to happen that we minimize all of the other bits of 20 discrepancies so if you did have to do an amendment it will be a very brief and direct 21 amendment. 22 23 Steve Tryder, Chestnut St.,why is there a separate PB version of the Bylaw? You asked 24 Judy to write her version of the Bylaw outside of the committee, and you wanted it done 25 by her and not by the Committee,would you agree we have 2 different versions? 26 27 Chair: fact is there is one article on Warrant for Town Meeting and it's PB article that's 28 the only fact that exists and that's a reality so not sure what purpose it would serve by 29 going back it is what it is. 30 31 Mr. Tryder: Committee was charged with drafting the Bylaw and bringing it to Town 32 Meeting. At the same time,people who were serving on the Committee were writing a 33 separate Bylaw from the Committee and here we are tonight looking at the differences in 34 the versions. Why did PB ask for a different version outside of the Committee? 35 36 Chair: because we wanted to get a version that we could put on the Town Warrant before 37 it closed so that it didn't look like in the PB's view that the Committee was going to be in 38 a position to have that. 39 40 Mr. Tryder, did you know that? Chair: we asked the Committee many times for their 41 version of the Bylaw. At this point it's done. 42 43 Mr. Tryder: he knows,but he's questioning the process and why it's gotten more 44 confusing. Page 9 March 16, 2009 Minutes of the Meeting SS DRAFT 4/1/09 4/6/09 Mary's edits approved 4/7/09 1 2 Chair: fact is there is only one article, let's not go back and rehash the past, if you want to 3 accuse the PB of bad motives you are certainly willing to do that but the point is... 4 5 Mr. Tryder: interrupted....said he was asking an objective question .. 6 7 Chair: gave an answer there was no article coming forward and PB was not going to go 8 another year without a revised Bylaw so we put it in. 9 10 Mr. Tryder: did you go to the Committee and ask for their draft before the Warrant? Did 11 you send somebody from the Board? 12 13 RR: If Committee had wanted to submit an article for the Warrant they could have 14 done so themselves. 15 16 Mr. Tryder: when you asked Judy to do rewrite, PB didn't say they are doing their own 17 separate version, this version is not a finished product placed on the Warrant. Committee 18 didn't have a chance to put their unfinished draft on the Town Warrant. From what he 19 sees the PB version is not a finished product by the time the Warrant deadline came 20 about. 21 22 TS: the issue was discussed several times at several meetings during the first year of the 23 Committee it was the reason why the first irritation of the Committee did not move 24 forward before putting something on the Warrant was because of this whole discussion 25 having the Bylaw committee get into an?????process with that PB,ZBA, BOS. He 26 would be surprised if you speak on behalf of the Committee and that the Committee did 27 believe that the PB was not considering doing something like this. 28 29 RR: Mr. Tryder go back and look at all of the tapes of the PB meetings and you will find 30 that a couple of months ago we discussed in this public forum that if the Committee 31 doesn't come forward with an article because if they don't we are not going to sit here 32 two years in a row with a deficient Bylaw and do nothing. 33 34 Mr. Tryder: did you send a letter to the Committee? 35 36 TS: no we didn't. 37 38 Chair: this discussion is going nowhere, ....please... 39 40 RR: if you had the .... 41 42 Atty. Ginsburg: interrupted stating that Mr. Tryder does not speak of the Committee. 43 Page 10 March 16, 2009 Minutes of the Meeting DRAFT 4/1/09 4/6/09 Mary's edits approved 4/7/09 1 Mark DiIppolito: he understands why the second version of the Bylaw was created to get 2 it on the Warrant but since it doesn't have-to be final instead of`it being one versus the 3 other why can't the one Judy wrote be amended as we discussed including the setback 4 which the Town residents voted on the last time there was a vote. Is there a particular 5 reason why the PB wants to remove the setback? 6 7 Chair: that's what we're having a continued discussion about etc. Chair thanked 8 everyone for coming to tonight's meeting. 9 Jennifer not available on April 7h PB meeting, other PB members are probably available. 10 11 12 Motion by RR to adjourn tonight's meeting, 2nd by JK,.meeting adjourned at 9:30 pm. 13 14 15 16 By order or the Planning Board 17 18 19 20 21 22 Approved 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 Plse. note: The Planning Board reserves the right to take items out of order and to 41 discuss and/or vote on items that are not listed on the agenda. 42 43 Page 11 March 16, 2009 Minutes of the Meeting 57 Site Specific Cellular Communications Installation Analysis Concerning: 70 Elm Street North Andover,Massachusetts 01845 Effective Date February 10,2009 William J.Pastuszek Jr.,MAI,SRA,MRA Shepherd Associates 15 Shepherd Associates Real Estate Appraisal & Consulting Services February 17,2009 Kate Rugman Boston Market MetroPCS 285 Billerica Road,Yd Floor Chelmsford,Massachusetts 01824 Attention:Bill McQuade RE: North Andover Proposed Fully Enclosed Communications Antenna Location: 70 Elm Street North Andover,Massachusetts 01845 Owners:' Trinitarian Congregational Church Deed Reference: Essex County Registry of Deeds Assessors ID: Map 42-Block 2 Date of Inspection: February 12,2009 Dear Mr.McQuade&Ms.Rugman: The following summarizes my findings relating to the subject site. Based on information provided to me,MetroPCS proposes to construct a telecommunications antenna on the referenced site,referred to as the site. The proposed structure consists of a completely enclosed antenna located within a church steeple.The proposed installation is designed to provide and enhance personal communications services in the area. Equipment would be within the building. The installation will be unlit,unmanned and generate no traffic,and will require infrequent visits for routine maintenance.The site would be entered and exited from existing access to the property. Power will be provided by existing lines.No water and sanitary disposal access will be required by the proposed project. The following consists of my study and findings. 1 199 WELLS AVENUE, SUITE 201•NEWTON,MASSACHUSETTS 02459 (617)928-1778•Fax 558-0057•E-MAIL:SHEPHERDCO A YAHOO.COM 3 Pertrrent Character�st�cs Area and Community _. Community: North Andover is a community located in northeastern Massachusetts. The municipality is bordered by Boxford to the east, Andover and Lawrence to the west,Methuen and Haverhill to the north,and Middleton and North Reading to the south. North Andover is 24 miles north of Boston, 12 miles east of Lowell,33 miles south of Manchester,NH,and 243 miles north from New York City. Land Area: 26.6 sq.miles Density: 1,058 persons per square mile Form of Government: Board of Selectmen,Town Manager,Open Town Meeting Year Incorporated: As a town: 1855 Major Community Routes: Principal highways include Interstate Route 495 and State Routes 114,125,and 133. Demographic Data. Population information is summarized as follows. r opuldttoCehsus'ggv� .: M x .,... Year Population %Change 2000 27,202 -- 2007 27,637 1.60% Icome Caractrrstics 2000 SIS Cens nhes1 �.:: Median Household Income $93,073 Per Capita Income $40,024 Median Family Income $113,796 qb Unet iptoymep U.S. 7.2% Massachusetts 6.9% Essex County 6.9% North Andover 5.5% Unemployment and labor force characteristics are competitive with other similar communities. Unemployment tends to be higher in these outlying rural locales than in communities closer to major cities and transportation and employment centers. 17 4 Housing Characteristics.The housing stock is a mixture of I -4 family dwellings.Ages and housing styles vary widely. Real Estate Activity. In terms of real estate activity,the boom real estate market of 2003-2005 has subsided.The following summarizes market activity over the recent past. TM Median Sates Prte¢s Rn Volume Northrtdover,MAS r e psi T N (The Warren Information: roup): Year Price-SF #Sales-SF Price- #Sales- Condominiums Condominiums 2008 $500,000 185 $208,000 145 2007 $476,200 240 $185,000 191 2006 $513,750 284 $262,900 261 2005 $565,000 259 $238,500 131 2004 $520,000 303 $225,000 1 200 Data for all transactions between$25,000 and$1,000,000. Condominium sales and prices are included. The national and regional Housing downturn continues.Low interest rates can be considered a positive factor,but access to credit is difficult. Summary:Positive factors include good employment access,a well developed transportation network, and access to the area's cultural,recreational,.and educational amenities. Negative factors include high housing and living costs,and a recessionary environment. Neighborhood. The mixed use neighborhood is located within the town center in the approximate northwestern section of the community. State Routes 114, 125& 133 are main state routes in the Town. Interstate I-495 is located to the west. General boundaries consist of the Lawrence Municipal Airport and the Merrimack River to the north,I- 495 to the west,several reservations and Lake Cochichewick to the east,and Massachusetts Avenue to the south.The specific neighborhood is bounded by commercial uses along Water Street which are located within 1200 yards of the subject,Waverley Road to the west,Main Street to the south,and Routes 125& 133 to the east. The subject neighborhood is a fully built up,urbanized area containing a mixture of uses.These include single family homes,multi-unit dwellings,condominiums,apartment buildings,and commercial uses, including office and retail/service establishments. Religious,institutional and commercial uses are located within the neighborhood. Dwellings in the neighborhood are mostly of wood frame construction and are a mixture of ages and styles.Lot sizes are consistent with the buildup of the area.Many of the homes were built in the 19'h Century,according to assessing records. t� 5 The topography consists of typical variations with no atypical,adverse,or detrimental topographical features. No adverse influences are evident. Site. The 45,600 SF site(per zoning drawings)contains the church building in which the proposed installation is to be located on the west side of Elm Street.It has a typical shape and a generally level topography. The site is at the corner of Elm and Cross Streets.Church Street is to the west and Water Street is to the north.The portion of the site where the tower is to be located is located at the east edge of the site. The subject property-The Trinitarian Congregational Church-consists of a wood frame structure built c. 1915.It is currently used as a church and school.Access into the site is by way of a driveway. The zoning is in a residential district-Residence 4.The site exceeds frontage and lot area requirements. Based on information provided,the proposed installation meets relevant setback requirements. The parcel is not located in a flood zone and there are no significant wetlands resources. It is assumed that all regulations will be complied with in the construction and operation of the subject facility. .Subject Antenna Characteristics.According to provided drawings,the proposed antenna will be located within the church steeple,Le.,bell tower.The installation will be fully enclosed and not visible from the street. Related equipment will be located within the church building. The antenna will consist of a single 51.5"x 11.75"x 2.75"panel with downtilt bracket and pipe clamps. A fiberglass louver painted to match existing colors is proposed. A lease area of 68"x 12'10"under the stairs consisting of 4:86 SF,according to the zoning drawings provided,will house related equipment. Additional conduit/wiring runs within the structure. Equipment cabinets(3:indoor,power,and battery cabinets)are to be located within the church structure.Based on information provided to me,the installation will generate minimal noise. Access is along existing roadways. No additional construction is necessary to provide for access.Once operational,infrequent visits for repairs or inspections will be required. According to the information provided,the spire is+-150'. The single antenna installation will be at+-80' high.The steeple is a pre-existing structure. My analyses and conclusions follow. 9 6 Analysis.I have reviewed the proposed project in detail and have made a personal inspection of the site.I also visited the surrounding neighborhood and competitive sites. A number of sites within the subject's market area were examined.I concluded there was sufficient data within the subject's area from which meaningful conclusions could be drawn. With the information collected,I was able to form an opinion with respect to the effect on real estate values on the subject area. Analysis Methodology. Analysts typically employ a comparative process.in establishing whether home sales are affected by the presence of communications towers.Data from home sales with proximity to telecommunications towers is collected and compared with data from sales from competitive locations within the same market without proximity to telecommunications towers. With smaller data samples,smaller sets of data or individual sales can be compared to establish if clear patterns emerge which show any effect on sales prices from homes with proximity to telecommunications towers compared to those without such proximity. It is also appropriate to consider days on market comparing properties with telecommunications tower influence and those without.Differences in marketing times between the two groups can help establish if there is an effect on the length of time it takes to sell a home based on proximity to a telecommunications facility. Further,analysts can consider listing activity.Areas where detrimental conditions exist often experience higher listing activity and longer marketing times.Analysis can determine whether the higher listing activity and extended marketing time are due to the presence of a telecommunications facility. Finally,inspection of the neighborhood can uncover other factors that contribute to home values.Areas with detrimental conditions often tend to experience higher and more persistent vacancy and lower levels of upkeep and maintenance.In the case of telecominunications facilities,it is appropriate to examine neighborhoods in which antennas are located to uncover patterns of neglect or higher than normal vacancy. My analyses and conclusions follow. 7 Analysis of Competitive Facilities. I have reviewed the proposed project in detail and have made a personal inspection of the site. I also visited the surrounding neighborhood and competitive sites. From a review of competitive sites,several sites within the subject's market area were examined in detail as found below.There is sufficient data within the subject area from which meaningful conclusions could be drawn.My study follows. Study of Competitive Antenna Locations. The analyst searched for towers within the subject's market area in order to understand what types of towers are typically built in this environment.Consideration was given to the study of towers near or within residential areas. As the subject area is not close to major highways,but locations within the Town are,towers along these highways and not near residential areas are not considered since their location characteristics are not similar to those of the subject. The following summary and analysis represent towers that are reasonably comparable to the proposed facility and is not meant to be all inclusive.The source for the data includes the appraiser's files, applicable public records,client information,FCC databases and www.antennasearch.com.According to Antenna Search,there are nearly 40 towers and many more antennas located within 40 miles.of the subject site.Communications towers are not unusual for this market area. The following data consists of locations of antennas on or within church steeples.These have been studied as they are most similar to the proposed subject installation.The location are considered competitive with the subject location.Sales data over the past year was considered most reflective of the current market and was analyzed.With the information collected,I was able to form an opinion with respect to the effect on real estate values in the subject area. My analysis and conclusions follow. 8 Location Facdrry' Name Comparison a fa s impact' , t `.�, - r� a4 7o*Subj�c t S , .. - y .. f1�OR�� S 70 Elm Proposed Fully Trinitarian . Street, enclosed steeple Congre- North antenna:not visible gational Andover from the street Church MA Steeple A 127 Fully enclosed West Competitive Residential location.Mostly older homes. Reservation steeple antenna:not Parish -abutting Road, visible from the Church community No unusual listings or vacancy trends noted.Days on market fall within normal Andover street patterns for the area.No unusual trends toward absentee ownership. MA B 586 Massa- Multiple enclosed First Residential Residential location.School nearby. chusetts antennas in steeple: Calvary location Avenue, not visible from the Baptist near School Two sales of colonial homes took place within the church's immediate vicinity. No. street. Church Based on comparison with other sales of colonials in the town,these properties sold Andover for prices that fall above the median and average prices of 44 sales considered.Days MA on market for these sales fell at the lower end of the range of the comparable data.A discussion with a broker involved with one of the sales indicated that the presence of the antennas played no part in the listing or sale of the homes. Based on this analysis,the presence of these fully enclosed multiple antennas has had no effect on home prices in this location. Ra 9 Location Faczltty Name Comparison ;10 Suli'ect { ;Y Impact y A 1" i. C 10 Church Enclosed steeple First Competitive Primarily residential area on a well traveled street.Mostly older homes. Street antenna-not visible Church of location. Haverhill from the street. Christ A review of real estate activity indicates no measurable impact from the presence of (Bradford) Existing T-Mobile the antennas. MA antenna with more recent equipment No unusual sales or listing activity.A review of listings of victorian era homes installed in the past indicates three listings within 1/10 mile of the installation out of 8 properties year.Steeple height: currently listed.The listings fall within the parameters established by the data in +-135' with terms of listing price and days on market.They are not clustered at the lower end of equipment mounted the range nor have they been listed for atypically long period of time.The limited @+-1001. sales data available indicate no difference in prices paid between a home in close proximity to the installation and one further from the installation. No excessive vacancy or lack of maintenance noted.Prices in area do not reflect any out of the ordinary trend when compared with competitive locations. 10 Location Facthty!: Name =Com ar'ison<- # Impact: P .. to SubJeCt }f D 54 Lincoln Steeple antennas: Newton Competitive Newton Highlands location:mixed area with commercial uses.Mostly older Street, visible from the Congre- location. Victorian era single family homes with some multi-family dwellings and Newton MA street and within the gational condominiums. . neighborhood. Church @ There are two other comer of No atypical listing activity noted.No unusual vacancies or patterns of non-owner antennas on the Lincoln occupancy.Sales activity and pricing falls within the range of competitive areas property,according Street within Newton. to a representative at the Church,which A sale of a victorian dwelling at 39 Chester Street took place in September 2008 for have been $1,560,000,according to MLS records.The home is located with 1/10 mile of the operational for a antenna.A comparison of the sales price/SF($453)with 18 similar properties number of years. indicates that the price paid exceeds the median and average sales prices competitive properties and that the DOM is significantly lower than those of competitive properties. Two condominium units at 72 Lincoln Street-in very close proximity to the antenna -sold for$365&$484 PSF.Analysis of 78 similar Newton condominium sales in MLS indicates that these units sold for more than the average and median prices of the data surveyed.The average days on market for this data set- 109-is well above the days on market for these two units. Based on the preceding observations,no effect on residential price is noticeable. This antenna,since it is not enclosed,but located on the top of the steeple is more visually prominent than the proposed installation. 11 Comparison Location Facility.'. :- Name �7rripact t 3r _Y fo Subject 0 ... y u E 474 Centre Enclosed antenna Eliot Street Urban Located in a mixed use area.within Newton Comer,with a concentration of older 1 - Street Church location. 4 family dwellings.A school is located nearby. Newton MA Commercial /residential/ No unusual listing of sales activity or preponderance of non-owner occupied homes multi- was noted. Homes sell for prices within the general range of prices for comparable family uses. homes elsewhere in the community.No effect on prices or residential real estate activity is apparent. A victorian style two family dwelling located at 126 Church Street sold for$575,000 in September 2008.The price paid and days on market(27)fall well within competitive two family sales with similar physical and location differences, indicated that there is no measurable effect on prices. o 01 12 Additional Data Considered. Other locations considered include an enclosed steeple installation located at 255 Grapevine Road,Wenham MA at Gordon College and a steeple installation at 217 Main Street, Haverhill.These were not sufficiently similar to include as direct comparisons but are nonetheless supportive as additional instances of such installations. Discussion. The appraiser searched for instances of antenna locations within church steeples throughout eastern Massachusetts. The results of the search indicated that this type of installation is common. The specific locations noted consist of installations that have no visibility from the street.Unlike cellular towers,which are visible,these installations have no visual impact. An analysis of real estate activity at competitive locations indicates there is no undesirable impact on residential prices in those locations. Based on this analysis,no measurable impact is likely at the subject location. Further,the subject contains a mixture of 1 -4 family dwellings,apartments,institutional/educational,and commercial uses. In a mixed use area,a visible antenna structure is not unusual;a structure that is not visible has no significant effect since it has no visual impact. The client notes that the facility,once constructed,generates only infrequent traffic and poses no burden on Town services. A supplied noise impact study indicates that the facility would not create significant noise. No unusual activity was noted in these areas which would suggest that the presence of the towers have a negative effect on housing in either case.Unusual activity would include trends such as abnormal MLS listings of homes for sale,sub standard maintenance,inharmonious uses,a higher than normal degree of absentee ownership,or excessive vacancy. Unlike freestanding cellular towers,which are clearly visible to passers by and,as a results,are visually and aesthetically intrusive in many environments,these enclosed installations have no visual impact,as they are not seen from the street or from nearby properties.This would also be the case for the subject. The one exception is Location D,where a tower is mounted on the top of the steeple and is visible throughout the neighborhood.Even in this worst case instance,no measurable negative effect resulted. I 13 Conclusion. In arriving at my conclusion,I have taken into consideration my inspection of the subject site and neighborhood,of comparable sites,and my detailed review of the proposed project.I have also considered that the enclosed installation is not visible to surrounding homes and the results of a supplied noise impact study,indicating that the proposed facility would do not create significant additions to the noise levels in the neighborhood.I also have assumed,based on information provided by the client and my experience with other sites,that the facility,once constructed,will generate only infrequent traffic and would pose no burden on town services. Based on my findings,it is my professional opinion that the construction and operation of the project will not have any adverse effect upon the property values of residential real estate located near the site. This consulting report is written to conform to the Uniform Standards of Professional Appraisal Practice (USPAP),as promulgated by the Appraisal Foundation,to the extent they apply,and with the supplemental standards of the Appraisal Institute. The consultant certifies that: 1)The statements of fact contained in this report are true and correct.2)The reported analyses,opinions,and conclusions are limited only by the reported assumptions and limiting conditions,and are the personal,unbiased professional analyses,opinions,and conclusions of the consultant. 3)The consultant has no present or prospective interest in the property that is the subject of this report,and the consultant has no personal interest or bias with respect to the parties involved.4)The consultant's compensation is not contingent upon an action or event resulting from the analyses,opinions, or conclusions in,or the use of,this report.5)This assignment is not based on a requested minimum valu- ation,a specific valuation,or the approval of a loan.6)The consultant has inspected the subject site.7) Analyses,opinions,and conclusions were developed,and this report has been prepared,in conformity with the Uniform Standards of Professional Appraisal Practice.8)no one provided significant professional assistance to the person signing this report,9)the use of this report is subject to the requirements of the Appraisal Institute and other appraisal organizations with which the consultant is affiliated relating to review by its duly authorized representatives. My qualifications follow.Please contact me if I can be of further assistance. Respectfully submitted, William J.Pastuszek,Jr.,MAI,SRA,MRA Massachusetts Certified General Real Estate Appraiser 410 WJP:b encls. I � 7 ASSUMPTIONSAND LIMITING CONDITIONS:The report's certification is subject to the following conditions and to such other specific and limiting conditions as may be set forth in the report. 1. The consultant assumes no responsibility for matters of a legal nature affecting the properties considered or the title thereto,nor does the consultant render any opinion as to the title,which is assumed to be good and marketable. 2. The consultant is not required to give testimony or appear in court because of having performed the consulting assignment with reference to the property in question,unless arrangements have been previously made. 3. The consultant assumes that there are no hidden or unapparent conditions of the property,subsoil, or structures,which would render it more or less valuable. The consultant assumes no responsibility for such conditions,or for engineering which might be required to discover such factors. 4. Information,estimates,and opinions furnished to the consultant,and contained in the report,were obtained from sources considered reliable and believed to be true and correct. However,no responsibility for the accuracy of such items furnished to the consultant can be assumed by the consultant. 5. Disclosure of the contents of this consulting report is governed by the Bylaws and Regulations of the professional appraisal organizations with which the consultant is affiliated. 6. This consulting report has been prepared for the exclusive benefit of the client specified. It may not be used or relied upon by any other party. Any parties using or relying upon any information in this report do so at their own risk. Possession of this report,or a copy thereof,does not carry with it the right of publication. It may not be used for any purpose by any person other than the party to whom it is addressed without the written consent of the consultant,and in any event only with the properly written qualification and only in its entirety. Neither all,nor any part of the content of the report,or copy thereof(including conclusions as to the property value,the identity of the consultants,professional designations,reference to any professional appraisal organizations,or the firm with which the consultant is connected),shall be used for any purposes by anyone but the client specified in the report. 7. The analyses and conclusions contained herein are meant for review by persons knowledgeable in the particular real estate valuation techniques and analyses set forth. 8. The data and conclusions contained herewith specifically relate to the locations in question and for the effective date.Conclusions drawn by others with respect to the relevance of this data to other locations and under other market conditions are done at their own risk. i NORTH ANDOVER, MASSACHUSETTS WIRELESS FACILITY ANALYSIS MetroPCS'Massachusetts, LLC d/b/a MetroPCS Proposed Site #BOS0380C at Trinitarian Congregational Church, 70 Elm Street Prepared by Mark F. Hutchins Radiofrequency Engineer January 19, 2009 www.MarkHutchins.org Brattleboro, VT 05302-6418 ;� 76 • R ©2009 Mark F. Hutchins Broadcast Services, Inc. Copyright claimed in the Analysis. Report copying is allowed by the Town, Applicant, and federal/state.reviewing agencies for planning and permitting procedures. Brief quotations are allowed by other parties with proper attribution. �Z8 frl 1. EXECUTIVE SUMMARY 1_a. The.pr-opnsal,.hy..MetroP.CS Massachusetts, LLC d/b/a MetroPCS ("MetroPCS"), to con- struct-a personal-wireless--communications-fac!ityat Trinitarian-Congregational-Ghurch ("Church"}-is-based-on a-reasonable expectation-to establish.-its-network. Technical studies -supplied by the applicant,and corroborated by independent modeling, indicate that-the pro- posed facility is a necessary network component within the Town cif North Andover. -I.b- The.pmposa[meets Town-of North Andover Zoning Bylaw' goals and requirements re- lating-to RF.-engineering issues.,-as-discussed-berein. _Infrastructure-of-the-.type being-pro- -posed -is-necessary-for-O.ersonal--Wireless-S.ervicee ('5PWS/ "-) -in-particular, Advanced Wire- less Services:'('.A.W. S") spectrum has been allocated by the'Federal Communications Com- mission-J"FCC")-in response to "explosive growth in the demandfor-both voice and data ser- vices."'3 This is coupled with can expectation of continuous service not only aion-g roads and in .-vehicles.but al so.within.buiidings. -EvBn with-mblization of-other existing structures as planned by-the-applicantfor-its-new-network, there will stillbe-an-area-in-the-viandprimariJy-east, of theChurch wifih inadeg fate-coverage-unless-the-proposed facility-(or-cell-with-substantially similar location) is employed. 1.c. The Church steeple will enable_placement of 6 transmit-receive antennas, concealed .within.the structure. All antennas would be placed behind fiberglass RF-transparent re- placemen(-louvers-with Ahe-exception-of-a sma114�G PS-antenna-mounted ex-ternaNy below the -louvers. -Radiofregaency-("RF 2)interference to-abutters-is-unlikely;-however,-locai-control.of interference is preempted bythe FCC. 'Cumulative RF radiation is certain to be within FCC guidelines for human exposure, as long as antenna access is restricted. The Federal Avia- tion-Administration,("FAA") requirements for obstruction marking and lighting..generally apply to structures exceeding 200' (feet) above ground level ("AGL"), which is not the case. There- fore, it can be assumed that applicant will comply with FAAIFCC height and marking regula- tions. 2. INTRODUCTION 2.a. According to the Telecommunications Act of 1996 ("TCA"), "the term `personal wireless services' means commercial mobile services, unlicensed wireless-services, and common car- rier wireless exchange access services."5 The services examined in this analysis are a sub- set of.Commercial Mobile (Radio) Services ("CMRS"). According to the FCC, `[t]he primary components of CMRS are currently the Specialized Mobile Radio Service (operating in the BOOMHz and 900MHz bands and authorized under Part 90 of-our Town of North Andover Zoning Bylaw,118.9:Wireless Service Facilities; Bylaw amended 7/13108. 2 Conventional cellular operates in the 800MHz range. Most paging is below 1,OOOMHz,which is 1 Gigahertz ("GHz"). Of all Personal Wireless Services,the subsets known as broadband PCS(Personal Communica- tions Services,-operating just below 2GHz)and AWS-1 (Advanced Wireless Services,operating at 1710- 1755MHz and 2110-2155MHz)are more difficult from the standpoint of RF propagation. '3-The-FC-C,regaining-AWS. wee-http`.7/Wirdiessfcc.gov/SeNicesTindeg.htm-?job=seMce_home&id=aws -Tbe-Glob&Posifioning-System(GFS)antenna is approximately-F-high-by-37 diameter, see Site-Plan Z-2, -Elevation;andZ-3,-GPS and-Aritenna-Detail. The relevant-language df TCA-Section704 is attached as Appendix 1. � _ 7z rules), the Cellular Radiotelephone Service (800MHz band, Part 22), and the Broadband Personal Communications Service (1900MHz band, Part 24).'6 Under this definition fall the vast majority of wireless telephony and data services; other per- sonal wireless services include traditional commercial paging services and wireless broad- band (Internet) services. 2.b. The TCA preempted some local regulation, but most land-use jurisdiction was specifi- cally preserved by the Act for local bodies such as the Town of North Andover Planning Board. While it is acceptable to require demonstration of need and to employ rigorous re- view, the TCA requires action without undue delay, and forbids discrimination among provid- ers or decisions that would effectively prohibit personal wireless services. Additional federal preemption is discussed in the RF Interference and Radiation section. 2.c. According to the application with accompanying engineering submissions, MetroPCS is establishing service in the Town of North Andover to meet the requirements of its FCC li- cense. 2.d. The Church enables radio "sight"' along Chickering Road and Osgood Street over a two-mile section that is also Routes 125/133 as it passes through the area intended to be served by the proposed facility. 2.e. The proposed facility includes placement of 6 transmit-receive antennas in the steeple behind fiberglass RF-transparent replacement louvers, along with a small external GPS an- tenna. Given the antenna model proposed, the center-of-radiation (or centerline "C/L") height would be approximately 80' AGL. A secure area for ancillary equipment is proposed inside the church. 3. APPLICATION SUBMISSIONS 3.a. The MetroPCS application material included site plan, RF coverage discussion and pre- dicted-coverage plots, RF radiation statement; additional information was subsequently pro- vided in response to my 12/5/08 request.8 3.b. Figure 1 shows the location of the proposed facility in relation to neighboring applicant cells, as well as three alternative sites and a traffic count discussed later in the analysis. 3.c. The MetroPCS RF engineering submission included predicted-coverage plots that showed 1.)the proposed-site performance alone; 2.)the area of inadequate service resulting if all the other sites were used without the proposed facility; and, finally, 3.)the aggregate of coverage from all sites. The applicant plots used the desired signal (coverage) level that MetroPCS considers the minimum for adequate service. Regarding the signal-strength val- ues shown.on the submissions, neither Congress nor the FCC has directly defined what con- stitutes an adequate level; threshold levels will be discussed later in the analysis. 6 FCC WT Docket No. 02-353,"In the Matter of Service Rules for Advanced Wireless Services in the 1.7 GHz and 2.1 GHz Bands", Footnote 6, 11/7/02. The analogy between radio coverage and visible light is discussed in the"Demonstration of Need—General Considerations"section. a Mark F. Hutchins email to Judy Tymon, 12/5/08. 7 2 � J 4. DEMONSTRATION OF NEED—GENERAL CONSIDERATIONS 4.a. Personal wireless services are considered "line of sight" because coverage at these higher radio frequencies is generally limited to the area where the antenna could be seen were it not for trees and buildings. While sight is not a literal requirement(the signal does considerable bending — known as diffraction —around obstacles), RF propagation is impaired by hills, buildings, and trees, particularly when the base-station antenna is lower. Shadowing, blockage and, particularly, distance from the transmitter are generally even more critical with proliferation of low-power hand-held transmitters (phones) operating at high frequencies. 4.b. Signals that graze treetops and blocked paths do not mean affected areas will have no communication, but ideally will be avoided. As previously mentioned, MetroPCS uses higher- frequency AWS spectrum, which means terrain and foliage impact will be more severe: Therefore, providers generally seek antenna placement at sufficient height to minimize foli- age losses. Signal strength deteriorates rapidly with increasing distance from the base sta- tion and, particularly with AWS, we may see solid coverage of only a mile or so. Another consideration is that there must be enough overlap of coverage to allow handing off mobile users as they travel from one cell to another. 4.c. In attempting to illustrate how radio waves travel to the desired destination, the analogy is often made between RF propagation and visible light. Preferable to shining a test light is the utilization of"real-world" computer modeling, which calculates signal attenuation and bending caused by the particular terrain and ground cover. The analyses herein employed the widely accepted Okumura9 RF propagation model, with 30-meter-resolution terrain data. "The Okumura approach is probably the most widely quoted of the available models. It takes into account not only urban, suburban, and rural environments, but also describes the effects of different kinds of terrain. All phenomena and effects can be computed well in practice."90 An empirical model with decades of utilization and refinement, Okumura is particularly sensi- tive to the impact of irregular terrain. The model performs pertinent reliability factoring, which takes into consideration seasonal variation due to foliage. Longley-Rice" and Bullington12 propagation models were also employed; among other uses, the Bullington model has com- puted field strengths in the protected Table Mountain quiet zone near Boulder, Colorado. Questions are sometimes raised regarding prediction versus actual measurements from what is known as a drive test. Both have advantages and limitations. While a drive test indicates the "real world", it is a snapshot—generally on a particular day—that may not sufficiently re- flect seasonal (foliage) and user-traffic variations or even variations in user devices. As a practical matter it is often unrealistic to test indoors or areas inaccessible to vehicles, so the drive test is normally limited to highway/street coverage, which then can be extrapolated to predict overall area coverage. 4.d. Adequate Coverage, as previously noted, has not been directly defined by Congress or in the FCC Rules and Regulations. In adopting PWS siting regulations, some communities 9 "Field Strength and Its Variability in VHF and UHF Land-Mobile Radio Service,"Yoshihisa Okumura,et al.,- Review of the Electrical Communications Laboratory,Vol. 16, No. 9-10, Sept-Oct., 1968. 'o Radio Propagation in Cellular Networks, p.261; Nathan Blaunstein, Ph.D.;Artech House Publishers,2000. 11 "Prediction of Tropospheric radio transmission over irregular terrain,A Computer method-1968",A. G. Long- ley and P. L. Rice, ESSA Tech. Rep. ERL 79-ITS 67,July, 1968. 12"Radio Propagation for Vehicular Communications", Kenneth Bullington, IEEE Transactions on Vehicular Technology, vol.VT-26, no. 4, Nov., 1977. 3 have included coverage definitions. In its objection to the-95dBm13 adequacy level set by the Town of Concord, T-Mobile's predecessor stated in relevant part: "For VoiceStream's network our receiver sensitivity specification for phone makers is -102dBm with 0 gain/loss at the antenna. Then 8db is accounted for with fading losses and 3dB is applied for head/body user loss. After factoring in the variables, this-results in a value of -910[m] signal strength, which VoiceStream uses for on-street cover- age."14 This is indicative of industry practice employing a reliability margin; Omnipoint(T-Mobile, for instance, more recently has utilized a 9dB fade margin, resulting in a-900m on-street goal. This -90dBm (or Concord's-95dBm) level in a yard or outside a vehicle almost always means an even lower signal inside a vehicle and even less inside most buildings. MetroPCS cover- age plots show its desired -88dBm level. In addition to the MetroPCS goal, I also show the previously mentioned -90dBm "on-street" level on my plots, as well as -95dBm which may also provide street service, albeit somewhat less reliably. Failure to achieve MetroPCS's minimum level does not mean there will be no coverage, but rather means there will likely be decreased reliability. 4.e. Adequate Capacity should be considered to the extent that it relates to coverage. While we'are initially concerned about the ability of one user to establish and maintain a connection, increasing numbers of users may tax the ability of the cell to handle additional traffic. A sys- tem at maximum capacity would result in a situation comparable to getting a busy signal on a wired phone. In the dynamic wireless environment, the practical outcome of heavier traffic is that the cell size may effectively shrink. A method taken by some providers uses a 10dBm differential to illustrate what is termed "soft measure of capacity" due to cell "breathing" of the network from increased user access. In other words, coverage at the -88dBm level may ef- fectively shrink to -78dBm coverage under heavy loading, so base station coverage can be quite dynamic as the number of users varies. 41 Coverage plots are for reception of the signal transmitted from the tower, known as the forward-link coverage. In the case of communication between a base station and a hand- held phone, signal from the phone (the reverse link) presents a greater challenge. Keep in mind that the links must work in both directions in order to have successful communication. However, calculating and mapping the reverse link is more difficult due to variability in user devices, so forward-link study parameters are chosen to accurately predict the overall two- way situation. In addition to continuous service along principal roads, the expectation of in- building/in-residence service is increasingly taken for granted. While original cellular custom- ers in North Andover employed higher-power portable phones, proliferation of pocket phones and digital devices challenges communication with base stations. 4.g. Adequacy of other providers should be examined, but not used as reason to deny. The TCA limitations include the provision that local "regulation...shall not prohibit or have the ef- 13 The dBm is a power level expressed as decibels ("d6") above one milliwatt. The dB is a logarithmic unit used to characterize a ratio(difference). In the case of RF power, if the second level is twice as much power as the first, it is 3dB higher, if the second level is ten times that of the first, it is 10dB higher, if the second is a million times the power of the first, it is 60dB higher. As can be seen,the use of decibels enables describing very large power ratios with modestly sized numbers. Note the use of negative numbers, so that-90dBm is 5dB stronger than-95dBm. 14"VoiceStream's Protest Memorandum Relative to§7.8.2.2. 'Adequate Coverage' as Defined in its Bylaw." Submitted to the Town of Concord, 5/17/01. 4 fect of prohibiting the provision of personal wireless services."15 (Emphasis added.) This is consistent with the underlying basis for the TCA to encourage service competition. 4.h. Where there must be adequate coverage is another point of FCC and Congressional ambiguity. Court decisions originally indicated there must at least be adequate coverage on principal roads. The Third Circuit Court offered this guideline in its Ho-Ho-Kus decision: "We think it matters a great deal, however, whether the 'gap' in service merely covers a small residential cul-de-sac or whether it straddles a significant commuter highway or commuter railway. Unlike a utility such as electrical power, cellular service is used in transit, so a gap that covers a well-traveled road could affect large numbers of travelers— and the people who are trying to communicate with them. Over the course of a year, the total disruption caused could be quite significant!" At a minimum, the Route 125/133 travel. corridor is a principal highway, as evidenced by traf- fic data,17 and it should enjoy coverage without a significant gap. Although "significant gap" may seem somewhat subjective, consider that to a user, even a small gap might cause a call to be dropped that will not automatically re-establish itself even when the caller exits the gap. Importantly, tremendous subscriber growth since the Ho-Ho-Kus decision means users ex- pect more widespread coverage than just along principal highways. A 2005 decision in the U. S. District Court for New Hampshire18 was instructive in confirming that in-building/in-home service is also an important consideration: "In evaluating the extent of a gap in coverage, courts have considered the availability of both in-vehicle and in-building service. See, e.g., Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630, 643 (2d Cir. 1999). Therefore, the [Dunbarton]ZBA's conclusion, based on town counsel's representation, that in-home service was not pertinent for purposes of satisfying the requirements of the.TCA was legal error and was also inconsistent with the evidence of record.19" 4.i. The issue of whether cellphones should be used by driver subscribers clouds the ques- tion of in-vehicle service. Many drivers employ hands-free phones and some devices can re- ceive data without any interaction with the driver; furthermore, passengers often are the in vehicle users. Therefore, in-vehicle service should be considered a valid MetroPCS goal. 4.j. Questions are often asked regarding alternatives, such as satellite phones and roaming coverage. The former is useful for those who must have coverage virtually anywhere in the world, but satellite phones and rates are expensive. Moreover, TCA provisions must be met without regard to availability of satellite service. Roaming coverage allows users to maintain and initiate wireless service when they leave the coverage area of their home provider, albeit at possibly higher cost. Often, the licensee for the subscriber's operating frequencies will change between different geographical areas, and roaming allows seamless—usually auto- matic—coverage for the mobile user without regard to who holds the license. Being able to 1s 47 U.S.C. § 332(c)(7)(B)Limitations:(i)(II). See Appendix 1 for the entirety of TCA Section 704. 16 Cellular Tel. v.Zoning Bd.of Adj. of Ho-Ho-Kus, 197 F.3d 64 (3rd Cir. 1999). 17 Merrimack Valley Planning Commission, History of Average Daily Traffic shows 16,955 daily on Osgood Street during May,2007. The counter point is indicated in Figure 1. 16 U.S.C.O.C. v. Dunbarton, 04-CV-304-JD; 04/20/05. 1s Decision, Footnote 2: "It is true, however, that'[w]here holes in coverage are very limited in number or size (such as the interiors of buildings in a sparsely populated rural area, or confined to a limited number of houses or spots as the area covered by buildings increases)the lack of coverage likely will be de minimis so that denying applications to construct towers necessary to fill these holes will not amount to a prohibition of service.'Willoth, 176 F.3d at 643-44. In this case,the ZBA rejected all evidence of gaps in service to homes and did not find that any such gaps were merely de minimis." 5 take your phone on a cross-country trip is a benefit of roaming, and is also likely to be seen near state lines as outlined in the Pelham case 20 in New Hampshire. (A customer in Pelham may receive roaming service from a Lowell provider due to her or his proximity to the state border.) Another type of roaming —switching between spectrum blocks licensed-to different providers within the same area, known as in-market roaming —is not always seamless. It is contingent on two important factors, the first being that the customer has a phone that is multi-mode in a way that ensures compatibility with the other system. According to the FCC, "Another technical consideration in the context of roaming is that, in order for roaming on digital networks to be successful,a customer must have a handset that employs the same digital standard (e.g., GSM or CDMA)as the carrier on whose network the cus- tomer is roaming. Thus, a carrier that uses GSM would not be expected to enter into an agreement with a carrier that uses CDMA, because the customers of each carrier would not be able to access the other carrier's.network. This, of course, limits the number of carriers in a given geographic area that can enter into roaming agreements. However, if, in the future, handsets become available that employ multiple digital technologies or software-defined radio capabilities, this may reduce or eliminate technical impediments to the subscribers of any carrier roaming on any other carrier's network..21 In view of the above FCC technical consideration, it is my opinion that roaming should proba- bly not be considered a viable alternative for adequate coverage. 4.k. Finally, in spite of any power increase from the base station, return signal from hand- held phones can only be increased a small amount,22 so the base station's ability to "hear" or receive adequate signal limits the usefulness of increasing base station forward power. 5. DEMONSTRATION OF NEED=SPECIFIC CONSIDERATIONS 5.a. Figure 1 is a shaded-relief map showing the planned and alternate North Andover sites, along with the proposed facility location. 5.b. For the propagation study(Figures 2-8), a grid of 14,257 equally-spaced study points (each one 50 meters23 from the next)was employed over the 13.8 square-mile study area consisting of the northern portion of North Andover. Resulting coverage plots are for signal transmitted from the tower, known as the forward link. Industry practice is to employ suffi- cient loss margins to reliably guarantee useful signal. In this case, the supposition was that results are indicative of 95% of the locations at that point.24 Percent-of-locations is a reliabil- ity indication, meaning that it can be assumed that the majority of locations (at the particular study"square")will receive that signal level. 5.c. Each coverage plot displays three signal levels25 and the weakest/lightest (-95dBm) is the minimum considered useable by many providers for coverage under good conditions. 20 Second Generation Properties, LP v.Town of Pelham,2002 WL 31819852 (1st Cir. 2002). 21 See Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers,WT Docket No. 05-265, Notice of Proposed Rulemaking,147; 8/24/05. 221n many areas of poor coverage,the base station may already be setting the handset to full power output. 23 A 50-meter distance is approximately 164 feet. This distance was used for graphing purposes; note that for the study,the terrain data was sampled every 30 meters for greater accuracy. 24 Grid spacing of 50 meters means each study point represents an area of 0.618 acres;there may be some signal variation within an area that size. 25 Remember the earlier discussion of negative numbers:-88dBm is 10dB weaker than-78dBm. The legend parenthetical number indicates the number of study points that meet the specified signal threshold. 6 t The middle level is for-90dBm and will work well in out-of-door and most vehicle situations. The strongestidarkest(-88dBm) level corresponds to the MetroPCS goal shown on its maps. Remembering the discussion at 4.d., failure to meet any threshold does not mean there will be no service, but makes it likely that calls will be more difficult to place and maintain with quality acceptable to most users. 5.d. Figure 2 shows AWS coverage from neighboring sites; this plot shows only the -88dBm level used by MetroPCS and for the most part is comparable with the applicant prediction of coverage without the proposed facility.26 Figure 3 shows existing coverage with addition of the -90dBm and -95dBm levels. Keepin in mind the discussion of capacity at 4.e., indicated -95dBm coverage may effectively shrinle�to the -88dBm coverage (or possibly even less) when there is heavy user traffic. So while Figure 3 doesn't look as unfavorable, areas with lighter shading cannot be considered to have consistently reliable coverage, particularly in- side buildings and when there is heavy network traffic. Therefore, it can be concluded that there are significant gaps along Routes 125/133 as claimed by the applicant and indicated on its mapping. 5.e. A valid question is whether neighboring cells can be adjusted to close the gaps. One method almost always impractical is to increase transmit power at the other sites; while this might improve outbound signal, the talk-back situation remains unchanged, plus there may be an issue of interference to other cells. Coverage and interference both become issues if the sector antenna gain and orientation are changed; in other words, we might modestly help some areas with an antenna change, but at some cost to the system elsewhere. Therefore, I conclude that the other MetroPCS cells cannot be adjusted to help. 5.f. Figure 4 shows the coverage of only the proposed facility, which covers the problem area well. Figure 5 shows the aggregate of proposed coverage along with that of the other cells, and for the most part this closes the coverage gaps. Note that the legend indicates how many study points (of the 14,257 total) meet the particular signal-strength threshold. 5.g. Figure 6 shows the coverage likely from a facility at the Stevens Estate (ALT1). There is already a collocation flagpole facility-there which, as pointed out in an applicant submission, appears unable to accommodate additional antennas. The supposition was that a second structure would be located approximately 500' east of the flagpole and high enough to give adequate tree clearance. Although ALT1 has favorable ground elevation, it is almost a mile from the proposed site and unable to adequately fill the coverage gap. Indeed, its coverage footprint is far enough away that it might prove to be a good location for a second facility, al- lowing the applicant to completely close the gap along Route 125 in the northern portion of the Town. 5.h. Figures 7 and 8 show coverage from using the 1 High Street smokestack (ALT2), and the 21 High Street smokestack (ALT3), respectively. The latter has about a 20' height advan- tage, although both would provide comparable coverage. Due to being higher and closer than the Church, both would more effectively close the Routes 125/133 coverage gap south of the Sutton Street intersection. However, there are two problems with either smokestack: 26"Proposed Coverage Without BOS0380C"submitted with the application. 27 The signal strength does not literally decrease; rather, the effective area of useful communication shrinks. Although how this works depends on the modulation scheme, capacity-challenged coverage reduction is common to all systems and providers. 7 7 94 First, it isn't clear that either is available. Second, both would require surface-mount anten- nas — perhaps with standoffs to allow sector aiming —which would be more visible than the antennas hidden in the steeple. 6. RADIOFREQUENCY INTERFERENCE & (NON-IONIZING) RADIATION 6.a. The FCC has requirements relating to RF interference, primarily between licensees. In- terference is unlikely beyond the calculated blanketing zone, which is just a few feet for power levels anticipated. Interference is always possible, particularly with poorly designed consumer electronics equipment, but unlikely. Nonetheless, it is impossible to state with ab- solute certainty that there will never be interference to nearby electronic equipment. Signifi- cant to this proceeding is that Town authority to regulate regarding interference was effec- tively preempted by the refusal of the U. S. Supreme Court to hear the Freeman case.28 6.1b. Each licensee must also comply with FCC RF radiation exposure requirements for the general population, as well as for employees and contractors with antenna access. The ap- plicant submitted an analysis by Dr. Donald L..Haes, Jr. to demonstrate likely compliance with FCC guidelines regarding Maximum Permissible Exposure ("MPE")to RF radiation. Dr. Haes made ambient measurements and then calculated the additional exposure likely from activation of the proposed facility. (Some of his assumptions are addressed by the Local Of- ficial's Guide30 published by the FCC.) Note that if we were to to face one of the trans- mitting antennas, MPE would normally be exceeded only within 5 or 10 feet; otherwise, expo- sure on the ground and other public areas will continue to be substantially below the FCC guidelines after activating the proposed facility. Accessibility is the key to MPE compliance, so restrictive measures are important and, in the case of a steeple (concealed)facility, a pro- cedure must be in place to make sure no worker approaches the area immediately outside the antennas during painting or other maintenance. The applicant should engage the land- lord to ensure adoption of a worker-safety program. 6.c. The Massachusetts Department of Public Health discontinued its notification and ap- proval requirement for RF sources in 2002. Beyond addressing the above-referenced safety issues, the Town cannot regulate the placement of the facility on "environmental" or health grounds, although it can seek demonstration of compliance using guidelines of the FCC Of- fice of Engineering Technology Bulletin 65. 28 Freeman,et al.,v. Burlington Broadcasters, Inc. et al., Petition for Writ of Certiorari to the U.S. Court of Ap- peals for the Second Circuit; denied October 2, 2000. 29 RF exposure study by Donald L. Haes, Jr., Ph.D., CHP, dated 11/11/08. 30 A Local Official's Guide to Transmitting Antenna RF Emission Safety. Rules, Procedures, and Practical Guid- ance(June 2,2000), available at http:/IWireless.foc.gov/sifing/FCC—LSGAC—RF—Guide.pdf (The LSGAC is a body of elected and appointed local, State, and tribal government officials appointed by the Chairman of the FCC. It provides advice and information to the Commission on key issues that concern local and State gov- emments and communicates State and local government policy concerns regarding proposed Commission actions.) 8 7. CONCLUSIONS AND PROPOSED FINDINGS OF FACT 7.a. MetroPCS is not able to provide adequate coverage along Routes 125/133, and areas near the Trinitarian Congregational Church, using spectrum for which it is licensed by the FCC. 7.b. MetroPCS is unable to use nearby sites to provide coverage to its inadequately-served area(s). Roaming, or the use of services that might be available from competing providers, is not a viable coverage alternative for MetroPCS customers. Repeaters and small-scale an- tenna systems are unable to address such a large area of inadequate coverage, since they are primarily intended to provide fill-in of small gaps. 7.c. MetroPCS has proposed use of the existing Church steeple to mount its antennas, re- sulting in almost no visual impact. Other than a small GPS antenna, the main panel-type an- tennas will be mounted inside, and hidden by, the steeple louvers. The existing louvers will be replaced by new ones which, while visually the same, are transparent to RF signals. 7.d. MetroPCS has examined three alternate sites: The Stevens Estate is too far away to close the southern-most coverage gaps along Routes 125/133, and would require a new sup- port structure. The two smokestacks appear viable from the standpoint of RF issues. How- ever, it is unclear that either is available. Furthermore, both would: require antennas which would be more visually obtrusive than the proposal for panel antennas concealed inside the church steeple. 7.e. MetroPCS will be in compliance regarding RF radiation exposure as long as it is able to restrict access to the antennas, primarily with regard to construction or maintenance person- nel who might work on the steeple. MetroPCS needs to outline how it will demonstrate com- pliance if and when the facility is activated. 8. STATEMENT OF MARK F. HUTCHINS 8.a. I am a Radiofrequency Engineer and a former broadcast station owner and communica- tions site landlord. I obtained my first FCC license in 1965, and currently hold lifetime FCC General Radiotelephone Certificate PGO 111356. 1 am a 37-year Senior Member of the Sock ety of Broadcast Engineers ("SBE"), Certified (#1098) as a Senior Broadcast Engineer by the SBE since 1977; I have served as Vice-Chair and Secretary-Treasurer of the Boston Chap- ter. I am an 11-year Member of the-Institute of Electrical and Electronics Engineers ("IEEE") and the IEEE Microwave Theory & Techniques Society. 8.b. Over more than 40 years I have prepared numerous FCC applications. Well versed in facility collocation and interference issues, I am an Accredited Frequency Coordinator for FCC Part 74 spectrum below 2 Gigahertz for the State of Vermont—a position I have held for the past 16 years. I am experienced in RF design and analysis, and my clients have included many FCC licensees and government entities. 8.c. I chaired the engineering panel for the 1996 Vermont Law School international RF/Microwave Conference, and was one of two independent engineers who assisted the 1997 FCC radiation study of the multiple-emitter Mount Mansfield communications site. The 9 �a Vermont Environmental Board submitted results of my RF studies—crucial to land use permit decisions—to the FCC in two Rulemaking proceedings. The National League of Cities and the National Association of Telecommunications Officers and Advisors cited my comments in one of these FCC proceedings to support their reply comments. I authored the chapter on RF exposure prediction and measurement for the book "Cell Towers: Wireless Convenience? Or Environmental Hazard?" published in 2001 (ISBN 1-884820-62-X). 8.d. Numerous local, regional and state planning bodies have employed me to review facility applications and conduct workshops. 1 have submitted evidence and been.qualified to testify before municipal bodies, district environmental commissions, the Vermont Environmental Court, and state and federal courts. U. S. Senator James Jeffords invited me to meet with FCC Chairman William Kennard and Vermont leaders prior to 1998 meetings in that state on tower siting, and subsequently to brief Congressional staff in Washington on siting issues. 1 regularly assist in development of regulations,and perform wireless telecommunications planning. I work primarily for municipalities,_reviewing wireless facility applications. Neither myself individually, nor my corporation, have any business or financial relationship with MetroPCS or any affiliate. I no longer accept site-acquisition work on behalf of any PWS pro- viders or tower developers, and have not done so for over nine years. 8.e. This analysis was prepared personally or under my direct supervision. [ORIGINAL SIGNED] Mark F. Hutchins 10 _ � j News Articles Regarding Wireless Application NORTH ANDOVER CITIZEN hftp://www.wickedlocal.com/northandover/archive/x776482541/ Trinitarian Church steeple may be new wireless antenna site By M. Renee Buckley/rbuckley@cnc.com Thu Dec 11, 2008, 03:29 PM EST Another cell phone antenna installation for a North Andover church is being considered, this time for the steeple of the Trinitarian Congregational Church on Elm Street. Two companies have approached the church for access to the steeple — Metro PCS and T-Mobile — and so far the church has authorized Metro PCS to apply to the town's Planning Board for permits. The church has not, however, decided whether it will go through with leasing the space to the two companies. "We started by allowing Metro PCS to approach the town to fill out the application and be reviewed by the Planning Board so we could get feedback from the town on their prospective," said Trinitarian Congregational Church Moderator David Deems, a Boxford resident. Deems said the church decided to start with getting the town's perspective, because the town has faced the issue of cell antenna installation several times, and the church wants to understand the town's position before making its own decision. "This is part of our information gathering so we as a congregation have access to all perspectives," Deems said. Another attempt by the church for information gathering was via a public information meeting held Monday night. There, representatives from both Metro PCS and T-Mobile spoke before a crowd of congregation members, church neighbors and parents of students in the church's Century Preschool, to present their plans for the antennas. About 40 people turned out and asked a variety of questions ranging from concerns about the aesthetics of the projects, to whether the installation would be safe for neighbors, churchgoers and the young children who attend regular preschool classes at the church. In regard to the appearance of the wireless installation, nothing would 1 be visible from outside the church, said Bill McQuade of New England Wireless Solutions, which represents Metro PCS. The installation for Metro PCS would entail putting in six antennas behind the louvers of the church steeple. The louvers would appear the same, he said, but would be rebuilt fiberglass replicas. He said an example of the louver would be available this week at the Planning Department Office at 1600 Osgood Street. Completing the installation would be the insertion of an 80-foot cable down the centerline of the church, reaching to the basement where a small equipment area would be installed. T-Mobile's installation would involve four antennas in reconstructed fiberglass steeple windows —this maximizes the church's available space for wireless antennas — as well as its own equipment area in the basement Many at the session raised the issue of possible health effects the wireless installation could have on neighbors, especially children. There to answer questions about those effects was Don Hayes, who described himself as an independent consultant with a Ph. D. in radiation safely, working in the field for 30 years. At the later inquiry of an audience member, he told the group he had been hired for the evening by Metro PCS. Asked at what levels a person can get cancer from wireless antennas, based on studies, Hayes said, "We're talking RF radiation, not ionizing. Studies show RF shows it's neither carcinogenic nor cancer promoting." When asked what studies he was referencing, he told the group he got his information on carcinogenic properties from the World Health Organization database online, specifically a 2005 study in Geneva, Switzerland. Church neighbor Thea Fournier — who has opposed the town in the past due to possible infractions of the town's wireless bylaw by allowing such facilities within a residential area .— said the World Health Organization study was funded by the wireless industry. Fournier works as a nutritionist and environmental health consultant. She said to the group, "We are hearing from the industry tonight. Just like the tobacco industry hid the truth and the asbestos industry hid the truth." It was Fournier who asked Hayes who was paying him for the evening. He eluded answering the question for several minutes before it was asked again and he said, "Tonight it's Metro PCS." 2 Shortly after, another neighbor asked if Hayes could point to a long- term study that would show the wireless antennas would have no effect on her or her family. Hayes said while there are studies those studies have "limitations." "Can you say there's a study? Yes or no," she asked. He said, "I'm not going to be forced to say, yes or no." Another audience member said it was unfair to force Hayes to say yes or no, as it wasn't a yes-or-no question. "You're forcing him to go on record for something he can't substantiate," he said. Hayes went on to say while he has a list of 35 studies, the maximum long-term study on an animal was two years. Deems stepped in shortly after to request Hayes provide the citations for those studies in order for the church to have the information for reference. More information needed Audience member Karen Carroll, a clinical nurse, requested the church provide an independent consultant to shed some light on the topic of radiation effects, given that Hayes had been paid by Metro PCS. Deems said they had already planned on hearing from a consultant the town had hired. However, Carroll, said she knew the town's consultant wouldn't be a medical expert, as the Telecommunications Act of 1996 prevents health issues from being used to deny a special permit to a communications company. Deems said they would look into it, and in an interview the following day said, "I'm going to go to the Board of Health and see if I can get a list of radiation safety specialists." He added, "It's hard for me to say whether we'd be able to bring someone in with that perspective. I just don't know how easy those people are to find. But we will certainly look into the category of other experts who are available." Asked if he had concerns about the safety of the wireless installation, given he spends so much time in the church, Deems said he did not. "I think there's strong evidence that there isn't really an effect [of the radiation]. But I understand it's always very challenging to draw specific conclusions because there are so many complex factors," he said. Asked on what basis the church will finally make its decision, Deems said he couldn't share that information. 3 "We have a decision-making process for these kinds of issues inside of the church, and we will follow that process," he said. "It's our process on how we manage our internal operation, and we just don't share that with the public." Neighbor Liz Fennessy said Wednesday she was, denied her recent request that the church council — which oversees the operation of the church — meet with a group of concerned neighbors to discuss the project. "The response I got was that the church council was present at the Monday meeting and therefore there was no need to meet with them personally," Fennessy said. "I was very disappointed to hear that. I've requested the names and addresses of the council because there are people who want to write them letters," she said. The council did not introduce themselves to the group at Monday night's meeting. Added Fennessy, "We will be asking to speak with the congregation after a service in the next few weeks and we're very hopeful that the church will accommodate us with that." Fennessy and neighbors have collected a number of names petitioning the wireless facility installation, Fournier said. As for the church's next step, Deems said it is to continue gathering more information, especially from the town, which will come in the form of the Planning Board's decision on the Metro PCS application. That decision is expected to be handed down at the board's Jan. 6 meeting. Following the results of that meeting, Deems said he expected the church to make a decision sometime in January. He said that should the church decide to go forward with the project, it would likely sign contract with both Metro PCS and T-Mobile. He said he could not disclose the amount of money offered by the companies to lease the space in the steeple. He also didn't know yet when the antennas would go in, should the church decide to sign contracts. http://www.wickedIoca1.com/northandover/archive/x1647202449/Is- church-wireless-installation-legal Is church wireless installation legal? By M. Renee Buckley/rbuckley@cnc.com Tue Dec 23, 2008, 08:00 AM EST 4 The Trinitarian Congregational Church is considering leasing its steeple to two wireless companies — Metro PCS and T-Mobile — in order for them to install a total of 10 antennas in the Elm Street structure. So far, the church has authorized Metro PCS to apply to the town's Planning Board for permits but has not yet made a decision as to whether it will go forward with a lease. A number of signs posted around the neighborhood read "No Cell Tower Antennas at Trinitarian Congregational Church" and "No Towers Near Our Homes: Protect your neighborhood and preserve our district!" but one important question remains: Is it legal to install a wireless antenna in a residential neighborhood? According to different interpretations of the town's Wireless Bylaw, some — including Town Planner Judy Tymon and Building Inspector Gerald Brown — say it's legal, and others — including Methuen Attorney Joseph Fitzgibbons and church neighbor Thea Fournier — say it's not. In 2000 North Andover Town Meeting passed a bylaw amendment calling for a 600-foot setback from any home or school for all wireless devices, antennas and base equipment. The amendment removed sections of the 1998 bylaw that allowed for up to a 50 percent decrease in the setback. However, due to the wording of the bylaw, different parties are interpreting that setback in different ways. The `Setbacks" section of the bylaw states that all wireless facilities and their equipment shelters must comply with the setbacks of the zoning district in which the facility would be located. The proposed Trinitarian Church cell tower would be in a residential neighborhood. The law also calls for a minimum setback of 600 feet from any property line that is zoned for (or contains) either residential use or educational use, for all wireless devices, antenna and their mounting structures, "whether attached to a new or existing structure." The Trinitarian Church is located much closer to residential property lines than 600 feet. From that portion of the bylaw, it would not be legal for the.church to install a wireless facility, given its place in a residentially zoned area within 600 feet of property lines. However, it is the following section of the law that is creating a gray area in the interpretation of the bylaw setback requirements. It states, "In the event that a preexistent structure is proposed as a mount for a wireless service facility, the setback provisions of the zoning district 5 shall apply." Tymon and Brown say this sentence indicates it is legal for the Trinitarian Church to install a wireless facility, because they are interpreting the church to be a "preexisting" structure, and therefore only required to meet the residential setback of 50 feet rather than the wireless setback of 600. This is where the gray area comes in - with the use of the terms "existing" structure in the first part of the bylaw, and "preexistent" structure in the second. Reading the first portion, it seems to state that no wireless facilities may be installed — on either a new or existing structure — within 600 feet of a residential or educational zone. The Trinitarian Congregational Church is in a residential zoned area. However, the second section states that if a preexistent structure is proposed as a mount for the wireless facility, the setback of the zoning district in which the structure already resides shall apply. Those on the other side of the argument say this second part implies that because the church is already there — or is "preexistent" — only the residential zoning setbacks of 50 feet apply, not the required 600- feet setback for a wireless facility. Tymon said this latter interpretation is correct. "The setback really is meant to be a safety issue, in terms of if the equipment were to fall down and injure someone or damage any structure, you want to have it setback from any existing structures. If it's an existing structure, then the building's already there. "So if it's not in a preexisting building then the 600 feet would apply," said Tymon. But Fitzgibbons, in a letter dated Jan. 15, 2008, interprets the bylaw differently. He was hired by North Andover resident Karen Carroll to interpret the bylaw after Brown granted a building permit for another wireless facility installation at the First-Calvary Baptist Church at 586 Mass. Ave. in 2006. Fitzgibbons' interpretation of the word "preexistent" is that a wireless facility already exists at that site, not that simply a building already exists there. He argued that the building inspector determined the First-Calvary Baptist Church to be a preexistent structure, but said that it was not in fact a preexistent structure because it did not already have another wireless facility in its spire at the time of application for the most recent wireless facility. 6 He said instead that the church is considered to an 'existent" structure — as it did exist prior to the wireless application — and therefore the 600-foot setback for all wireless facilities to be installed in existent structures would apply. The current application submitted by Metro PCS to install a wireless facility in the steeple of the Trinitarian Congregational Church is now being considered by the Planning Board. The board is scheduled to meet and make a judgment on the application at their meeting Jan. 6. http://www.wickedlocal.com/northandover/archive/x1621260028/Som e-anxious-over-church-s-cell-tower-decision Some anxious over church's cell tower decision By M. Renee Buckley/rbuckley@cnc.com Thu Jan 22, 2009, 03:30 AM EST NORTH ANDOVER -The town's Planning Board is set to hold a public hearing Tuesday on the application by Metro PCS to install cell phone tower antennas in the steeple of the Trinitarian Congregational Church at 72 Elm St., and neighbors against the tower are growing increasingly anxious. The decision is ultimately in the hands of the church — when and if the Planning Board approves the application — but neighbors who are against the tower are concerned their fears and wishes aren't being addressed by the church. A group of neighbors has asked to speak directly to the congregation following a Sunday service but has not been granted that opportunity. Asked why the church won't accommodate the neighbors' requests to speak with the congregation, Interim Pastor Vicki Keene said neighbors have already had their chance to voice their concerns in an open meeting. "The church council sets up a process of conversation and they determined there would be an open meeting, which would be open to anybody to come and speak to the church and share their concerns," Keene said. This meeting was held at the church on Dec. 8. "We sent out as a church over 200 letters to neighbors inviting them to this meeting and indicating that this would be their opportunity to come and speak to the church," said Keene. Keene said the church council had been there along with many members of the church, but neighbors have complained they were never introduced or identified to those at the meeting. 7 Some neighbors who attended the meeting have said they felt it was not intended as a forum in which they should express their concerns, but rather was set up as an informational session in which they were to only ask questions. "We attended the church's 'Informational Meeting' and, being respectful of their wishes, we only asked questions and did not express our concerns for we believed that they would give us another opportunity to meet with the trustees, church council and/or members and at that time we would express our concerns," said Erien Gordon of 25 Garden St. Lauretta Wentworth of 15 Pleasant St. criticized the quality of the meeting. "The meeting at the church on the 8th of December had only one expert, representing the cell company, and only one point of view regarding this controversy was presented. Since the dangers are not known and won't be known for years to come, the neighbors and the members of the church and all residents should be provided with both points of view," she said. Mark Depolito of Pleasant Street said the meeting format was not fair to neighbors. "Expecting neighbors to be able to go toe to toe with professional cell tower employees who have been trained to debate neighbors — and win — is not what I consider a fair forum," he said. However, Depolito said he'd also had an opportunity to sit down with Keene previously and described their discussion as "open and informative." "I honestly believe she passed my thoughts on to other church. leaders. However, if the only people that hear my concerns are the same church leaders that are driving the process of getting cell towers approved and installed ... then is anyone really listening?" he asked. Neighbor Thea Fournier of Main Street said she and other neighbors would like to talk with the church parishioners to express their concerns and feelings. ' Although the church has been collecting information' in a binder for church members to review, there is no substitute.for honest dialogue. The neighbors have repeatedly asked for a brief meeting with parishioners after their church service and a meeting with church council. Both meetings have been vehemently denied," said Fournier. In lieu of letting neighbors gather to speak directly to the congregation, the church has been collecting all of their letters and 8 noting their concerns for inclusion in a binder accessible to any church members who are interested in looking. The book is available for viewing in one of the church's reading. rooms, Depolito said. Neighbor Dagmar Schnellinger of Elm Street thinks a meeting would be a more effective method of allowing their concerns to be heard by the congregation. "I think a one-on-one would be better than a book with letters from the neighborhood .that anybody can look at but nobody does. "I just wish this whole thing would go away. They could find a place for the cell tower where it wouldn't impact anybody's health and the church would get their money somewhere else," said Schnellinger. Depolito added that while he suspects the church leaders are tired of hearing from the neighbors about their concerns, it will be the neighbors who bear the brunt of the potential health risks down the road. "No one related to the church will be affected, they are there a few hours or so a week. The neighbors are there 24-7 and have no input into the decision other than lawn signs and pamphlets, which most members of the congregation probably don't even read," he said. He said the reason that neighbors want a chance to meet with the congregation is that they want churchgoers to see the "human side of this," which he said can't be related through e-mails and letters. "This thing boils down to, what is more important? Easy money or being a good neighbor?" he said. Why consider a cell tower? "I feel we have listened. I feel we've been generous with our time and given them the opportunity to share their reasoning and their fears with us," said Keene. "When you're in a gray area of unknown people just say, 'Don't do it.' That's a reasonable position to take and we understand that," said Keene. "There are no studies that conclusively say one way or another that this is safe or unsafe. Everyone agrees with that, I think." Why, then, if it's not certain whether it's safe, is the church still considering it? Keene said there are a number of reasons. "First, these companies came to us expressing the need to improve their service, so there was a community need to improve reception for cell phones. We did not go after the cell companies," she said. "We're also continuing to consider this because we're waiting for the town's opinion. We rely on the town government to look out for the 9 well being of our citizens. That's why we have government and these functions and boards in place," Keene said. Asked if she or the church is concerned about their future relationship with their neighbors, Keene said, "Of course it is." She added, "We need to impress upon our neighbors, we are a church. We are here to do God's work in this neighborhood and serve the needs of people both near and far. We are a nonprofit organization. It's not about the money, it's about our service to God and to people not only in this town but surrounding towns and the world. That's what Jesus Christ calls us to do." Elm Street resident Lizetta Fennessy said, "Anyone can say they value the neighbors, but where is the action that supports it? In 2000, the church's actions indicated that it values the neighbors; they voted against the cell tower, in part due to consideration of the neighborhood objections." Fennessy said the neighbors want a chance to inform the congregation of the long-term health risks involved with living under a cell tower, and to request that they vote not to install the tower. When and where The public hearing on the Metro PCS cell tower permit application is scheduled for Tuesday, Jan. 27, 7 p.m., at Town Hall, second-floor meeting room. http://www.wickedlocal.com/northandover/archive/x617067188/ , Cell tower decision next week By M. Renee Buckley/rbuckley@cnc.com Wed Feb 25, 2009, 05:49 PM EST NORTH ANDOVER -Those following the case of the proposed cell antenna installation in the Trinitarian Congregational Church steeple may be happy — or relieved, or anxious — to hear the Planning Board. is set to vote on the special application at next Tuesday's meeting. After hours of testimony from those on both sides of the issue, Planning Board Chairman John Simons said they'd leave the public hearing open until next Tuesday's meeting, at which time the board will take a vote barring any unexpected developments. MetroPCS, which is the applicant along with the Trinitarian Congregational Church, must hand in one more required piece of information in order for the application to be complete — a list of all the wireless facility sites within a one-mile radius of the church, located at 72 Elm St. 10 Though the applicant requested a waiver on this requirement, the board would not approve the request. The board's decision on the application must be based on a list of specific criteria, Simons said at this week's hearing on the application. Those criteria include ensuring the application is complete, that it complies with the criteria laid out in the town's wireless bylaw, that the company has proven a significant coverage gap necessitating the installation, that there are no other suitable locations, that the installation is safe, and that the application meets FCC standards. In regard to the safety part of the criteria, the Telecommunications Act of 1996 prevents health issues from being used to deny a special permit to a communications company. Only discussion of safety in terms of the installation and whether the building materials could fall and cause harm, for instance, may be used. Asked if the applicant has met all of these criteria, Simons said, "We went through the items and I think there was a general consensus. I can't speak for everyone on the board as to how they will vote." Since the application was presented to the Planning Board, some opponents have said the town's wireless bylaw prohibits the installation of any such facility within 600 feet of a residential neighborhood or school, both of which exist within 600 feet of the Trinitarian site — the church is home to the Century Preschool. Opponents have said the Planning Board should turn the application over to the Zoning Board of Appeals due to the possible violation of the setback requirement. Simons said the Planning Board has sought town counsel's advice on the matter, who has said the decision on whether the application meets the bylaw criteria is up to the town's zoning enforcement officer, who is building commissioner Gerald Brown. Brown has stood by his decision that the application meets the bylaw criteria, explaining that the 600-foot setback only applies to new structures, not an already existing structure such as the Trinitarian Congregational Church. But at Tuesday night's hearing, church neighbor Liz Fennessy of Elm Street presented a list of past decisions on similar applications for cell tower installations in town since 2000. Fennessy read through the list of decisions, outlining an inconsistency in decision-making in regard to the law. In 2000, 2001 and 2002, letters from then building commissioner D. Robert Nicetta indicated applications to install a wireless facility in an existing facility within 600 11 feet of a residential- or educational-zoned area would require a variance from the ZBA. Then, in 2006 and 2008, the opposite decision was rendered by new building commissioner Gerald Brown for two other applications for cell ._antenna installations in church steeples. Fennessy said these documents, which she provided to the board, showed three cases in which the bylaw was applied as intended, and -two cases in which it was not. "I request you refer this to the ZBA where it belongs," she said. Planning Board member Richard Rowen addressed Fennessy's point later in the meeting, and explained that despite the differing interpretations of the bylaw by building commissioners in the past, the actions of the Planning Board have been consistent — they've followed the interpretation of the building commissioner — and they will continue to do so. Asked if neighbors opposed to the installation will take any further action should the application for the wireless antennas be approved next week, Fennessy said, "There are many citizens in North Andover who would like to see our wireless bylaw applied in this case, and the neighborhood will be forced to appeal an affirmative vote by the Planning Board." Thea Fournier of Main Street, another neighbor of the church opposed to the installation, said, "The answer is yes, we shall appeal and defend our position. The wireless bylaw is clear. It is being read incorrectly." The next Planning Board meeting is scheduled for Tuesday, March 3, 7 p.m., at Town Hall in the second floor meeting room. 12 Published: March 20, 2009 12:06 am LAWRENCE EAGLE TRIBUNE Holy war in North Andover Neighbors ask for God's help in cell tower feud with church http://www.eagietribune.com/archivesearch/local_story_079003852.h tml By 7.3. Huggins jhuggins@eagletribune.com NORTH ANDOVER — The sign in front of Chris Bowe's house at 33 Elm St. reads, "LORD PLEASE HELP US." Down the road, another sign says, "My bedroom is right up there. PLEASE don't put a tower across from where I sleep!! Madison Age 8." Residents are waging a visible fight against Trinitarian Congregational Church, which plans to install a cell phone antenna in its steeple at 72 Elm St. "What we want is the Lord to hear us and we want the church to hear us," said Bowe, 54. "We don't know what long-term radiation is going to do." The health risks associated with cell phone towers are the subject of a worldwide debate. Experts have argued for both sides — some say the towers can cause health problems like cancer, some say they don't. The town's Planning Board unanimously approved a special. permit for the antenna. The only other step in the process is the church getting approval for a building permit, said Town Planner Judy Tymon. The congregation's Church Council unanimously approved a motion authorizing its board of trustees to continue negotiating with wireless companies MetroPCS and T-Mobile to enter into lease contracts. The church said the antenna would be safe and it needs the money it would receive by hosting an antenna. David Deems, the church's moderator, said in a letter to members and neighbors that their actions are "driven by our faith." "We have remained open to all perspectives — favorable and opposed — proactively researched and thoroughly reviewed all information and used it, in addition to dialogue and prayer, to make our decision," he wrote. The bottom line, according to residents interviewed, is that neighbors 13 don't know what the long-term effects of living so close to a cell antenna will be. "I don't want to find out years down the road, 'Guess what guys, you know those cell towers? There's a problem.' We really don't want to be part of their experiment," said Aaron Pertus, 39, of 62 Elm St. Pertus lives next to the church. He has a white banner on his front lawn, facing the church entrance, saying, "PLEASE DON'T PUT A CELL TOWER 40 FEET FROM OUR BABY'S CRIB." Pertus works as an electronics technician for Verizon, but he works in its land line division, he said. His daughter turns 2 next month. The family is "seriously considering" moving, Pertus said. "I think that some of those signs are now becoming a little extreme and it's just unfortunate that that's the position that some of the neighbors would take," Deems said during an interview. "The tone is antagonistic, and it kind of tries to tug at people's emotions in a way that's just not helpful to the overall process. And, in fact, it doesn't really support facts of the issue." The current radio frequency emissions around the church have been measured at about 1 percent of the maximum exposure allowable by the Federal Communications Commission. The cell antenna would add an estimated additional 0.01 percent of exposure, Deems said in the letter, citing calculations from an expert hired by MetroPCS. A town-hired engineer verified that the company met FCC guidelines, Tymon said. If the antenna is installed, the church will be able to keep an eye on the amount of emissions produced because it will have a contractual right to obtain annual reports from the wireless carriers, Deems said. Several neighbors have generic yellow signs saying, "No towers.near our homes. Protect your neighborhood and preserve our wireless district!" in addition to signs with personal messages. Eddie Miller's 8-year-old daughter, Madison, made the sign asking the church not to install an antenna across from where she sleeps. The sign is posted in front of the apartment building the family lives in across from the church, with an arrow pointing toward Madison's bedroom. The family started with the yellow sign, and that piqued Madison's interest, her father said. "She asked me all about it," said Miller, 34. "She's like, 'Daddy, my bedroom, we're directly across the street.' She was like, 'You know what, I want to do my own (sign)."' Deems said "there's literally no exposure to the neighbors in the immediate neighborhood." "That kind of information doesn't seem to be heard, or certainly it's 14 not taken seriously by some of the people that put signs in their yard like that," he said. Money is why the church wants to install the antenna. During the past two years, the church has faced a budget shortfall that is depleting its assets, Deems said. Residents intend to hinder the church's plans. Neighbors are going to court to appeal the Planning Board's decision. Their appeal is due by March 25, said Liz Fennessy, one of those opposing the antenna. Fennessy lives diagonally across from the church and has three children, ages 7, 5 and 2. "Your choice, our kids health," says the sign in her front yard. "It's very stressful having to deal with it," she said. "The church can't prove it's safe, so we have to live with the risk so they can save their dying church." 15 "C �XJ MEMORANDUM To: North Andover Wireless Bylaw Review Committee From: Thomas J..Urbelis, Town Counsel V Date: October 29, 2008 In accordance with your meeting on October 23, the following are some comments on your'draft revisions to the zoning bylaw which I hope you will find helpful: 1. You have deleted from the current bylaw the provisions that the Planning Board will be the Special Permit Granting Authority and the draft does not designate who will be the Special Permit Granting Authority. As was discussed at your October 23 meeting, you may designate the Zoning Board of Appeals as the Special Permit Granting Authority. If the Planning Board is the Special Permit Granting Authority and it determines that in order to comply with the provisions of the Telecommunication Act of 1996 a variance is needed for the setback requirements, then the applicant would need to go to the Zoning Board for such a variance. Under Massachusetts law a variance must be based upon the soil conditions, topography or shape of the lot and in prior situations which have come before the Zoning Board for a variance and in which they determined that the variance was required to comply with the Telecommunications Act of 1996, they heard complaints from residents that they could not grant such a variance unless it related to the soil conditions, topography or shape of the lot. If the Zoning Board of Appeals were to be the Special Permit Granting Authority, there would only be one Board �b t conducting hearings, rather than two Boards, although the bylaw could still have the Planning Board do a site plan review. Since it is the Planning Board and Zoning Board of Appeals who are directly affected by this, I recommend that-you reach out to the Planning Board and Zoning Board of Appeals for their input as to which Board should be the Special Permit Granting Authority for the wireless communications part of the bylaw. 2. Definitions— E. Adequate Coverage: This new definition provides specific engineering criteria such as "-95 dbm" and I am not aware of any engineering study which you have done to justify this criteria. The Town should justify such technical requirements. F. Adequate Capacity: Again, this specific new criteria should be based upon, and defensible, as a result of some engineering backup which you have received from an engineer. Moreover, if this definition is intended to define what is a "significant gap" for purposes of the Telecommunications Act of 1996 you may need not only engineering studies,but also some confirmation in an appropriate court decision that this particular definition is defensible under the Telecommunications Act of 1996. T. Monitoring Protocol: This new provision refers to a testing protocol "adopted by the Board"but no such protocol has been defined in the bylaw. AA. Repeater: Again, the question arises as to where the technical criteria which is contained therein has its origin and justification. The definitions Omnipoint Directional Antenna, Security Barrier, Separation, Utility and Wireless Service Facility have been deleted from the current bylaw and I suggest you have a discussion and rational justification for such deletions. 2 Z 3. District Regulations— A. The phrase "Wireless Service Facility" is :used, but it is not something which is contained in the definitions. There is such a definition in the current bylaw, but it was deleted from your draft. B. Again, "Wireless Service Facility is used," but there is no definition. The current bylaw has a 600 foot setback requirement. Your modification provides for a 800 foot setback from a lot containing a dwelling, school, daycare center, nursing home or an assisted or independent living facility. Most cases decided under the Telecommunications Act of 1996 are not based upon a challenge to the bylaw as written (a "facial challenge"), but are based upon a review of local boards' decisions based upon the facts of a particular application and whether the decision, in applying the bylaw results in an effective prohibition of wireless services (an "as applied challenge"). However, in some situations, even without considering the facts of a particular decision being challenged, a Court will entertain a claim that a local bylaw, on-its face, is so egregious that the bylaw violates the Telecommunication Act of 1996. In the County of San Diego case from the 9 ' Circuit Court of Appeals which Ms.'Warren provided to you on October 2, the Court stated: "That is not to say, of course, that a plaintiff could never succeed in a facial challenge. If an ordinance required, for instance, that all facilities be underground and the plaintiff introduced evidence that, to operate, wireless facilities must be above ground, the ordinance would effectively prohibit it from providing services. Or, if an ordinance mandated that no wireless facilities be located within one mile of a road, a plaintiff could show that because of the number and location of roads, the rule constituted an effective prohibition. We have held previously that rules affecting a "significant gap" in service coverage could amount to an effective 3 ago . 3 prohibition, MetroPCS,400 F.3d at 731-35, and we have no reason to question that holding today." (emphasis supplied) Attached hereto is a copy of an email from former Town Planner Lincoln Daley along with the wireless bylaw map which is referenced in his email showing the 800 foot setback for residential properties. Lincoln left his employment with the Town soon after he did this pian. As you can see, under Lincoln's analysis, as a result of the setbacks, there is very little land in North Andover which would allow constructing a Wireless Service Facility. This kind of plan is something which a carrier would have in a facial or as applied challenge to a bylaw in which the carrier would claim that the bylaw has "the effect of prohibiting the provision of personal wireless services in violation of the Federal Law. Please note that Lincoln's analysis was related just to the residential property setbacks and not to the other setback prohibitions in the draft bylaw. The_draft of the proposed bylaw contains a prohibition of a tower at any location that is: • within 800 feet of a lot containing a dwelling, school, day-care center, nursing home, assisted or independent living facility or within 800 feet to any structure in an Historic District, or listed, or eligible to be listed, on the state or federal Register of Historic Places or • on a Massachusetts or federally regulated bordering,vegetated wetlands or • on a Massachusetts certified vernal pool or in the Habitat of any Massachusetts rare or endangered wildlife or rare plant species or • within 500 feet of a Scenic Road(4.d.i) or • that is within open areas that are visible from public roads, recreational areas or residential development(4.d.ii). . 4 ���1 I`recommend that the Committee should determine if, and where, any land in North Andover, is available for a wireless facility under those provisions as well as under the current bylaw provisions so that, in carrying out its review of the wireless bylaw, the Committee will know if, on the face of the existing or proposed bylaw, there is, or will be, an effective prohibition of wireless services in violation of the Telecommunications Act of 1996. Enclosed please find my letter dated November 21, 2007 with regard to such a determination. Enclosed is a Setback Comparison for 36 municipalities for your comparison as to the setback requirements in your draft and the requirements of some other communities. 4. The current bylaw has a provision which states: "In the event that a preexistent structure is proposed as a mount for a wireless service facility, the setback provisions of the zoning district shall apply. In the case of the preexisting non-conforming structures, wireless service facilities and their equipment shelters shall not increase any non- conformity." Your draft deletes this section. Often such wireless facilities are placed inside buildings such as church steeples. In such situations there is no "fall down" zone because the monopole is totally enclosed and therefore it would not present a safety hazard outside the building. However, if a carrier wants to place a monopole in an enclosed building or on top of an existing building, water tower or similar structure it would have to comply with the 800 foot setback provision. Since the Supreme Judicial Court has said "there may be no regulation of facilities on the basis of the environmental effects of radio frequency emissions, other than as required by the Federal Communications Commission" what is the justification for deleting the current bylaw provision and imposing an 800 foot setback? 5. The current bylaw has a provision that states: "A wireless service facility may locate as of right on any existing guyed tower, lattice tower, monopole or electric utility transmission tower for 5 S which a special permit issued under the Section 8.9 is in effect; provided that the new facility shall first obtain site plan review approval from the Planning Board and, provided further that any new facility shall not exceed the terms and conditions of the special permit in effect for the existing facility on which it is to be located." This has been deleted from the draft and instead, there is, in your draft that carriers can co-locate on preexisting facilities "provided that such installation complies with the setbacks in Section 3.b.i." (the 800 foot setback and other requirements). Some current wireless facilities in Town do not satisfy the 800 foot setback requirement. The draft requires that a proposed new antenna, on a previously approved tower or array on a building would have to meet the 800 foot setback requirement. An applicant and Court could appropriately ask what rationale and justification would the Zoning Board of Appeals and Planning Board have in requiring compliance with the 800 foot setback and other requirements in denying such an antenna on a previously approved tower? 6. Section 4.c. Historic Buildings: This whole subparagraph appears to conflict with the prohibitions which you have in Paragraph 3.b.2 which prohibit facilities unless they meet setback requirements. e.iii: There is reference to Sections 8.3 and 10.3 of the bylaw, but there are no such sections in your draft. e.iv & v: These contain specific noise limits of 50.b.d. for which there appears to be no engineering backup. 7. In 5.8.3 there is reference to "SPGA Rules and Regulations." Which Rules and Regulations are these? Do they exist? 8. Site filing requirements in ii.9 require contours for adjacent properties within 500 feet. Is that possible for an applicant to do without going onto those adjacent properties and, if 6 not, what happens if those contours are not provided? Is the application to be denied on that basis? 9. In v.8 there is a requirement for a printout of foot candle levels at grade, but in Section 4.b.i there is a limitation of 0.0 foot candles when measured at grade so this appears to be a conflict. 10. viii. RFR Requirements— These are new additions from what is in the current bylaw and contain very specific engineering criteria and, once again, there does not appear to be any engineering study which has been done or backup provided with regard to justifying these criteria. 11. In 5.v.i there is reference to a "gap" and a "significant gap" which appear to conflict with the new sections defining"adequate coverage" and"adequate capacity." 12. Monitoring and Maintenance— (a) references "applicable wireless communication facilities regulations." Who decides what those are? Are these in existence? What regulations are "applicable" beyond FCC regulations? (b) through (g) contain specific criteria for post installation actions which may be in conflict with federal requirements. Attached hereto is my letter dated November 19, 2007 which recommends appropriate engineering review of whether such requirements are in conflict with federal requirements. 13. Fines— Section 7(e) of your draft refers to fines for failure to provide information "in this subsection 8.9(8)". However, the referenced subsection of the draft does not have information requirements. 7 As you may recall, last year there were meetings of the Planning Board and Board of Selectmen at which advocates of fines demanded that fines be imposed upon carriers. Advocates of fines against a carrier were requested by the Town Manager to provide any authority, statute or caselaw which would authorize the imposition of fines against a carrier who challenged such fines under the Telecommunications Act of 1996. No such authority, statute or case was provided to the Town Manager. By contrast, with regard to a case involving the Federal Telecommunications Act, the Federal Court in AT&T Communications of Southwest Inc. vs. City of Austin, 975 F.Supp. 928, 239 (W.D. Tex. 1977) stated: "The threat of criminal sanctions and fines for the failure of an entity to obtain municipal consent can indubitably only be described as a prohibition." See also Citv of Auburn v. Quest Corp., 247 F.3d 966 .(9t' Cir. 2001) (citing the language in the City of Austin'case). Those cases raise a serious question as to whether such fines in the wireless bylaw are enforceable in light of the Federal Act. Enclosed for your convenience is a listing of certain municipalities and whether they have fines against wireless carriers in their wireless bylaw. I hope the foregoing has been helpful to you. Please let me know if you have any questions or if there is anything else that you need. 8 ATTACHMENT 1 From: Daley, Lincoln (Idaley@townofnorthandover.comj Sent: Friday, March 14, 2008 9:29 AM To: Thomas J. Urbelis Subject: FW: 800 foot buffer Attachments: 800 foot buffer.pdf Tom: Per your request, please find the Wireless Bylaw map showing the 800 foot buffer from residential properties.Attached please find a copy of the Wireless Service Facility 800 t s ng Towbuffer P AssessoThe p and MA land was developed by identifying all residentially classified properties n North Andover use codes and then establishing an 800� n information for�es dentiar the eachproperties nThe redproperty lie. cies ndicatee residential rtherties were then crossreferenced with Town GIS location of additional residential dwelling units and the 800 foot buffer not identified during the initial analysis. Lincoln /D ATTACHMENT 2 ry� it i : II 11 s.�� u1Gl o lin'r��!. 1 ►..•�. 1; ►y jt ozTVA rOlc �i r.rF-1 1 �,. Cis._. 1 ►, ggv FT 1er -Pr�/�wM,l.'R>r a�Y,4��1/9 I,�s�/�. 8g �=•"cgqnin,;�ga;<arS,..��� � '� -- 1 _,` 1 al . ,�" 0'6.��i ..,d�\._':rtir�,,N�►1 !� �-�t.,k�,.,.,. ��e .�_` ls,.. �c�'.G'.�,n,•� !{� � ��:•;.�S!, qi—�1�.v.��ijp yliiy'%/,� dam: i� `Vl•a(.:��R �.}� Il►�� lr v \ »�`.,�slC�/•...<r1`- ii.. ili" 1�" �x-V�,'al•'� ^ � X0:4 �._..��r N • '�. Qai, \� uu,.•� �i^^:e°;,\?f'•.1•' •, ��;:5'ti✓ ),h.+aa,.. moi,r.���''� 4r�i_�,.r •., Oy►,,*' si/c � � s11 i! �Qfciimnr 1. r".u'd!� ^+/+:�' C►/°fij` y, �r�t�..%.��.• i>% Sh ,rC�i,`4��aa, ..�;�i�i�j� �,1� .�.'<'o. —`rt,' + Mh„O: �R� c e� i/� �r � ��� e4a7 „trbl illl'.y P= ✓ vS�., yyMY- 1K. flame 11 ilii�� 1 �d. �,� Tl 4�'► /Rr�r < 1� gl�o ^.w'' ��'!/li • 4 �qL��, ��C��:iAl-!'1��1 a�,�.xe...r„cam v.�3.'r; �tl�r 4� ��st`�'F`'.'�`.,.I{� • rte' r. \���'rt!/'1 �.. !�> ��L4i L.�/ �C ��iPI� a!”,rl► v tr�t\ \�. II �' � ±, �:►o��i1�r%^,.• "` `y)h��/��`'�"�'r0 lQ �i�, ��4��r�i��� .��C.lr� �'t' '41�: 4�/:'';y�:Za_j_"��`r�r�a ice.-/°,`,',,\�--.►`-`rtr.._:_l��\L3�R�,\���• /��j°r� S ly a��rB7 I%ir� � qr� �% �"vrI"-:•:.�isl:����'"d � 0�':=, `%` l�? :•_ �.',,. 1nos, �s���"Ili���o,✓-i .'r� ,���r� MOPi��.ti',s q t• � MIv� 'AAI r r�j��• ��dk�/Y:t► r .01p� Ief• iru �nii�`�`'��s gL y i \\'1 ��Qyo.,��. r���yfIii hull F�••'�/ I ��� n� � � `tt 'r� �s'r4P�I;i�C`,•.,n I �.u�J • sd=3�`� 141 .'.—w�.aU•�A1pf'���� ����' ��' ��� � ��� yl iv /t V' gq���;�+. '/•.,. *�� 1, M. .,� i ATTACHMENT 3 /3 UR.BELIS& FIELDSTEEL, LLP 155 FEDERAL STREET BOSTON, 1vLkSSACHUSETTS 02110-1727 THOMAS J.URBELIS Te!ephone 617-339-2200 Andover email tiu@uf lzw.com Telecopier 6i7-338-0122 Telephone 978-415-4557 November 21, 2007 Mr. Curt Bellavance Town of North Andover 1600 Osgood Street N. Andover, MA 01845 RE: WIRELESS COMMUNICATION TASK FORCE Dear Curt: The Zoning Bylaw states: "A minimum setback of 600. feet shall be required for all wireless devices, ` antenna and their mounting structures, whether attached to a new or existing structure, as measured from the adjacent property lire of properties which are. either zoned for, or contain, residential and or educational uses of any types." With regard to that provision, I recommend that the Task Force consider the following: 1. The 600 foot setback is 4 times the fall down zone of a 150 foot tower and the carriers have indicated a challenge under the Telecommunications Act of 1996 would be forthcoming if a tower were denied due to the 600 foot provision. Keep in mind that health concerns about radiofrequency transmissions are not a legitimate ground for the 600 foot setback provision. The carriers have asserted that there are very few properties in Town which could satisfy this 600 foot requirement. I recommend that an analysis be done as to what properties in Town would be able to satisfy the 600 foot setback provision and where on such properties the "wireless services, antenna and their maintaining structures" would need to be located in order to comply with the 600.foot setback requirement. 2. Whether there should be a modification such that it is explicit that a setback requirement applies only to the tower itself and not to additional. antennas on the tower or to equipment on the ground or to subsequent carriers who may want to co-locate on an existing tower. 3. Whether wireless facilities within enclosed structures should be exempt from setbacks. ti URBELIS &FIELDSTEEL,LLP November 21, 2007 Page 2 t'J Very truly yours, 1 v� Thomas J. rbelis TTU:kmp cc: Board of Selectmen Mark Rees Gerald Brown Lincoln Daley ,y ATTACHMENT 4 " is SETBACK COMPARISON n - � Acton 3.10.5.2: No special permit required in certain districts if tower does not exceed applicable height limitations and is set back from all lot lines at least the distance equal to the height of the tower but not less than applicable minimum yard requirement. 3.10.6.4: Residential districts—height of facility from lot line, but not less than applicable minimum yard requirement. 3.10.6.5: >:500 feet from Local Historic District boundary. 3.10.6.6: Separated from any existing residential building by a distance at least twice the height of the facility unless the facility and building are on the same lot. Agawam 180.97(x): Minimum of 260 feet from tower to property line or another occupied building on the property or 1 %Z times tower height, whichever is greater; 375 rather than 260 feet to all publicly owned parks and playgrounds Amesbury I(3): 100 feet from property line; 200 feet from nearest residential building Amherst 1. Residential Districts—Setback from residential lot at least equal two times height of tower. Non-residential Districts—Lesser setback possible but requires findings by SPGA. SPGA may also allow lesser setbacks for use of an existing structure. Andover 61.2: In residential districts, three times the height Ashland 282-46(D): 100 feet from adjacent way if residential use One mile from another tower Height of tower plus 10 feet from property line Barnstable §240-107.E: Structural components including ground wire anchors and equipment shelters shall comply with all required setbacks of the zoning district. Belchertown 145-62: Tower's height from property line ,v:I,p31\wo,k\yuVetba k co,perllmlol 1�Ji Billerica IV. Set back from property lines must be at least vertical height plus 10' and 250' from residential dwellings and> 800' fromup blic schools. Boxborough 7403: Height of the tower; also 500 feet from any school building; 1500 feet from any other tower Boxford §196-22-C(6): Facility must be set back from property line at least the distance equal to vertical height of tower. Burlington 4.1.6.4: Distance of fall zone; also 200 feet from residential dwelling; 800 feet from public school building Chelmsford §195-66: By-right in specified zoning districts, subject to certain requirements, incl. 500' from a residential structure. §195-67: By special permit—subject to certain requirements including setback of at least 50' or 1 '/2 x the length of the monopole. Chicopee 275-27.1: height of tower plus 10 feet; Twice the tower height from residentially zoned abutting parcel Concord 7.8.4.2—(a) set back from lot line equal to tower height unless tower designed to break away at a certain point above the ground; 0)no new towers within 1000' of child care facility or school, 100' from single family dwelling, 100' from any structure in a Historic District or listed or eligible to be listed by Reg. of Historic Places. Dover §185-46.E(2)(a): 2.5 x height from property line; 300' from any habitable dwelling or business. §185-46.E(3): SPGA may reduce required setback by up to 50% if it finds that a substantially better design will result. Franklin 180-44(D): Height of tower; 250 feet from existing residential building; one mile from another tower unless applicant shows there is no existing space on one of the existing towers which can be leased Hamilton J(5)(b): Distance equal to the tower; 500 feet from existing structure except those on the same lot. 2 Harvard 125-27: 2 miles from nearest tower unless cannot locate on the existing tower or the proposed placement is critical to the provision of services; Setback is height of tower; 500 feet from a residence Hingham III=E(7): Height of the towers Holden Chapter 7.1, Section XVII(B)(4): In residential district, 2 times the height; at least 300 feet from the nearest residential structure Hudson 5.9: Lots upon which tower is located must have minimum width and depth equal to twice the height of the tower unless ZBA reduces it with finding it is not necessary for public safety Hull This is an overlay district; Section 39: 2 miles from another tower unless allowed by SPGA; height of tower but 500 feet from residential lot lune Lexington §135-89B: Height of tower plus 10% In nonresidential district SPGA can reduce it. Lincoln 12.6.3: As specified in underlying zoning. Longmeadow 6.13: Equal to height of the tower; 300 feet from nearest residential building and 750 feet from a historic district Lynnfield 9.4.7: If residential abutter, at least the height of the tower; otherwise in compliance with setback in that zoning district; 500 feet from the nearest residential structure Needham 6.7.5(i): Setback requirements of the district North Andover 8.9 3) c) v)': Two times height from property line; 600 feet for all wireless devices, antenna and their mounting structures, whether attached to a new or existing structure, as measured from the adjacent property line of properties which are either zoned for, or contain, residential and/or educational uses of any type. Oak Bluffs 8.3.3: Subject to requirements of underlying zoning. Rowley 8.7.3.3: Setback provisions of the zoning district or 120% of height of tower; 300 feet from a residence fi dwelling; 200 feet of a residential lot:line 3 i f` Scituate 540.7A(3)(B): Height of tower plus 5 feet; 100 feet from residential dwelling Sturbridge 12.03: One mile from another facility; 120% height of the tower Wakefield XIV A: In an Industrial District and Limited Industrial District, provided that no component of the facility is within 600 feet of a residentially zoned district, historical district, historical site, archeologically significant site, schoolground or park, notwithstanding the town's boundary; If entirely concealed from view may be sited in an.Industrial District, Limited Industrial District or Business District, provided that no component of the facility is within 250 feet of a residentially zoned district, historical district, historical site, archeologically significant site, schoolground or park, notwithstanding the town's boundary Wayland 1503.2.7: Except for antennas or Boston Edison Company towers in one part of district, cannot erect facility nearer to a property line than a distance equal to vertical height. 1503.2.13: Cannot be within 900' of a lot line of a parcel having a dwelling, school, daycare center, nursing home or assisted living facility. Wellesley Part D.3: For installations requiring an SP, generally must be at least height of pole plus 5 feet. The Wayland bylaw has a provision which refers to litigation brought against the Town and which states: "1559.2.1. Other permits: Except to the extent superseded by or inconsistent with the judgment in the matter AT&T Wireless Services of Massachusetts v. Town of Wayland, et al., United States District court for the District of Massachusetts, Civil Action Docket No. 04-1 1807MLW (the "TCA Case"), the applicants must obtain and comply with all other required municipal, state and federal permits from regulatory authorities having jurisdiction in this matter." In another case involving Wayland, a Federal District Court decision stated: "...the undisputed evidence shows repeated delays and denials that when viewed in the aggregate, demonstrate the Town's hostility toward Nextel." "A panel of the First Circuit has held in the majority of cases the proper remedy for a zoning board decision that violates the Act will be an order . . . instructing the board to authorize construction." "Congress did not intend multiple rounds of decisions and litigation"and"a board will not ordinarily receive a second chance." See Nextel Communications vs.Town of Wayland,231 F.Supp.2d 396(2002). 0 4• Q —� Westwood 9.4.2: None? The Wireless Communication Overlay District is in the following zoning districts: Administrative—Research—Office; Highway Business; Industrial;Industrial office and 23 parcels which include 8 schools and 8 church parcels West Tisbury Not closer than height of tower plus 20 feet to existing building; 400 feet from abutting residential, school or day care property lines �� 5 ATTACHMENT 5 �a �a URBELIS &FIELDSTEEL,LLP 155 FEDERAL STREET BOSTON, MMSSACHUSETTS 02110-1727 I T elephone 617-33 8-212-00Andover i;iomAs J.URBE [5 Telephone 978-475-4557 c-mai:ciuruf-la'.v.eom Teiecopier 617-338-0 ii_' - November 19, 2007 Mr. Curt Bellavance Town of North Andover 1600 .0sgood Street N. Andover, MA 01845 RE: WIRELESS COMMUNICATION TASK FORCE Dear Curt: Section 8.9(8) of the North Andover Zoning Bylaw requires an annual report on radiofrequency radiation measurements. The Federal- Communications Commission has promulgated regulations setting forth ions. The FCC also regulates when compliance reporting is and exposure limits for RF transmiss is not required.- See, for example, 47C.F.R.1.1307(b)(1). In preparing its report to Town Meeting, I recommend that the Task Force consult with persons having appropriate engineering.and other technical expertise to determine whether the blanket requirement of Section 8.9(8) of the Zoning Bylaw (and the other provisions requiring periodic reporting). should be deleted or modified, as being inconsistent with the Telecommunications Act of 1996, due to the preemption of Federal Regulations on the subject matter of the annual RF compliance reporting. Very truly yours, Thomas J. Ur lis TJU:kmp cc: Board of Selectmen Mark Rees 3 a a� ATTACHMENT 6 of �'4 FINES Iy WIRELESS BYLAW Acton: None Agawam: None Amesbury: None Andover: None Ashland: None Barnstable: None Boxborough: None Burlington: None Chicopee: None Franklin: None Lvnnfield: None Hamilton: None Harvard: None Haverhill: $300/day for riot filing annual RFR Requirements or for not following abandonment/discontinuance procedures North Andover: $300/day for not filing annual RFR measurements or for not followiiig abandonment/discontinuance procedures Hingham.: None Holden: None Hudson: None Hull: None Longmeadow: None V wt\wpS Aworkkju\5nes in wireless bylaw.doc 71 as•�5 Needham: None Rcwlev: None Scituate: None Sturbridge: None Wakefield: None Wayland: None Westwood: None West Tisbury: $300/per day if owner does not remediate unsafe tower or exceeds FCC standards for emissions 2 7 TOWN CHARTER TOWN OF NORTH ANDOVER FEBRUARY 2006 PREAMBLE We, the people of the Town of North Andover, Massachusetts, in order to reaffirm the customary and traditional liberties of the people with respect to the conduct of local government and to take the fullest advantages inherent in the home rule amendments to the constitution of the Commonwealth, do hereby adopt the following home rule charter for this town. CHAPTERI TOWN INCORPORATION,FORM OF GOVERNMENT,AND POWERS Section 1 Incorporation 1-1-1 The present town of North Andover, within its territorial limits as now or as may hereafter be established by law, is hereby continued as a body corporate and politic with perpetual succession under the name: Town of North Andover. Section 2 Form of Government 1-2-1 This charter provides for an Open Town Meeting - Board of Selectmen - Town Manager form of town government, and it shall be known by the title: North Andover Home Rule Charter. 1-2-2 The town of North Andover is committed to the full participation of all citizens and to a policy of equal employment opportunity. The town will not discriminate against employees, applicants for employment, nor citizens engaged in any town sponsored activity on any legally recognized basis, including but not limited to race, age, color, religion, sex, marital status, sexual preference, national origin, disability or veteran status. Section 3 Scope and Construction of Town Powers 1-3-1 The town shall possess, exercise, and enjoy all powers possible under the constitution and statutes of the Commonwealth as completely and fully as though they were expressly enumerated herein. ATTEST: A True Copy d Town Clerk 1-3-2 The powers of the town under this charter shall be construed liberally in favor of the town, and no specific provision shall be deemed to limit in any way the general grant of powers that towns may exercise under the home rule amendments to the constitution of the Commonwealth, and the statutes thereof. Section 4 Intergovernmental Relations 1-4-1 Consistent with any applicable constitutional or statutory provisions, the town may exercise any of its powers, or perform any of its functions and may participate in the financing thereof,jointly or in cooperation, by contract or otherwise, with any one or more other towns, civil divisions, subdivisions, or agencies of any state or the United States government. Section 5 Specific Provisions to Prevail 1-5-1 To the extent that any specific provision of this charter shall conflict with any provision in general terms,the specific provision shall prevail. Section 6 Severability of Charter 1-6-1 If any provision of this charter is held invalid, the other provisions of the charter shall not be affected thereby. If the application of the charter or any of its provisions to any person or circumstance is held invalid, the application of this charter and its provisions to other persons and circumstances shall not be affected thereby. 2 1 CHAPTER2 TOWN MEETING Section 1 Organization and Powers 2-1-1 The legislative powers of the town shall be exercised by a town meeting open to all registered voters of the town. 2-1-2 The town meeting shall consider and act upon with or without amendments, all bylaws, proposed operating and capital improvement budgets, bond issues, and other financial proposals of the town. 2-1-3 The town meeting shall possess and may exercise all powers possible under general law. Section 2 Warrants 2-2-1 The Board of Selectmen shall prepare the warrant for all town meetings. 2-2-2 The warrant for the Annual Town Meeting shall be closed not more than 75 (seventy-five) days, but at least 40 (forty) days prior to the date for the meeting, provided that by unanimous vote, the Board of Selectmen may reopen the warrant in cases of emergency. The warrant for any Special Town Meeting shall be closed not more than 40 but at least 20 days prior to the date of the meeting. (Chapter 447 of the Acts of 2004) 2-2-3 The warrant for each annual and special town meeting shall be posted in a public place in every precinct in the town at least seven days prior to the annual town meeting and at least fourteen days prior to any special town meeting. 2-2-4 The warrant for each Special Town Meeting shall have a summary of each article prepared by the Town Clerk, published in a newspaper of general circulation at least seven days prior to the meeting. Said publication shall contain where copies of the full warrant text can be obtained, viewed, or requests for mailing be sent. (Chapter 446 of the Acts of 2004) Section 3 Procedures 2-3-1 The town meeting shall meet regularly between April twenty-eighth and May twenty-eighth, as specified in the town by-laws to consider and adopt an annual operating and capital budget, and to act on other matters. The meeting shall be continued on other days, until all articles in the warrant have been acted upon. 3 Section 4 Special Town Meetings 2-4-1 A special town meeting may be called by the Board of Selectmen and shall be called by said board upon the request, in writing, of at least two hundred registered voters of the town. Section 5 Moderator 2-5-1 A moderator, elected in accordance with the provisions of Chapter 6, shall preside at all sessions of the town meeting. Section 6 Simplified Rules of Procedure 2-6-1 Rules of parliamentary procedure in simplified form shall be prepared by the moderator and shall annually be included in the Finance Committee report. 2-6-2 The Town Clerk shall make copies of the simplified rules available for distribution to those requesting them, to new voters at the time of registration, and to those in attendance at all sessions of the town meeting. Section 7 Ad Hoc Committees 2-7-1 All ad hoc committees established by the town meeting shall be appointed by the moderator, unless the motion establishing any such committee shall name the members, provide for their election, or provide for a different appointive authority. Section 8 Articles Having Fiscal Implications 2-8-1 All proposed operating expenditure shall be included in a single, omnibus- type article in the town meeting warrant. In addition, all regular proposed capital improvements expenditures shall also be included in an omnibus-type article, devoted to capital expenditures. 2-8-2 Articles involving an expenditure of town funds shall not be voted on by the town meeting unless the Finance Committee shall have considered them previously and issued a written recommendation thereon. The chairman of the board, or a designated representative, shall be present at the meeting to provide verbal explanations of the board's recommendations. 2-8-3 No article calling for the appropriation of funds shall be considered at a special town meeting unless the proposed expenditure has been recommended by the Board of Selectmen and the Finance Committee, acting separately at separate meetings. 4 Section 9 Articles Having Environmental Implications 2-9-1 Articles involving planning, zoning, subdivision control, land acquisition, conservation, extension of sewer or water lines, the acceptance of streets and ways, and all other similar matters relating to the environment shall not be voted on by the town unless the planning board shall have considered them previously and issued recommendations thereon. The chairman of the planning board, or a designated representative, shall be present at the meeting to provide verbal explanations of the board's recommendations. 5 CHAPTER 3 BOARD OF SELECTMEN Section 1 The Board of Selectmen 3-1-1 A Board of Selectmen of five members shall be elected at-large for three- year overlapping terms. 3-1-2 Vacancies in the office of selectmen shall be filled by special election in accordance with the provisions of general law. Section 2 Policy Leadership Responsibilities 3-2-1 Except as otherwise provided by this charter, all executive powers of the town shall be vested in the Board of Selectmen. The Board of Selectmen shall have all the powers and duties given to boards of selectmen under the constitution and general laws of the Commonwealth, and such additional powers and duties as may be authorized by the charter, by by-law, or by any other town meeting vote. 3-2-2 The Board of Selectmen shall cause the laws and orders for the government of the town to be enforced and shall cause an up-to-date record of all its official acts to be kept. 3-2-3 The Board of Selectmen shall serve as the chief goal-setting and policy- making agency of the town and, as such, shall not normally administer the day-to-day affairs of the town, but shall instead regularly direct the Town Manager to help it in carrying out its administrative duties, and make recommendations to the town meeting relating to actions required to be taken by that body. Section 3 General Powers,Duties, and Responsibilities 3-3-1 The Board of Selectmen shall have the power to enact rules and regulations establishing town policies, not otherwise governed by general law, this charter, or by-law, provided, however, that whenever an appropriation shall be necessary to implement such action, the vote of the board shall be effective only if such appropriation has been authorized by the town meeting. 6 Section 4 Powers of Investigation 3-4-1 The Board of Selectmen may conduct investigations and may authorize the Town Manager or other agent to investigate the affairs of the town and the conduct of any town department, office, or agency, including any doubtful claims against the town, and for this purpose the board may subpoena witnesses, administer oaths, take testimony, and require the production of evidence. The report of such investigation shall be placed on file in the office of the Town Clerk, and a report summarizing such investigation shall be printed in the next town report. Section 5 Specific Powers,Duties,and Responsibilities 3-5-1 The Board of Selectmen shall act as the licensing authority of the Town and shall have the power and responsibility required to issue licenses, to make all necessary rules and regulations regarding the issuance of such licenses, and to attach conditions and impose such restrictions as it considers to be in the public interest, and further to enforce, or cause to be enforced,the laws, rules, and regulations relating to all businesses for which it issues licenses. 3-5-2 The Board of Selectmen shall be recognized as head of the town government for all ceremonial purposes. Section 6 Powers of Appointment 3-6-1 The board shall have the power to appoint: (a) a Town Manager as provided in Chapter 4: (b) town counsel; (c) a town accountant for a term of three years in accordance with Sect. 55 of M.G.L. Chap. 41; (d) a police chief; (e) a fire chief; (f) three members of a board of registrars of voters for overlapping three-year terms; (g) election officers; (h) three constables; and (I) five members and three associate members of a zoning board of appeals for overlapping three-year terms. 3-6-2 The board shall also have the power to appoint town boards enumerated in Chapter 7, designated as Board of Selectmen appointees. 3-6-3 The boards enumerated in Chapter 7 shall be responsible to the Board of Selectmen through the Town Manager, and shall work cooperatively with the Town Manager, and be responsive to requests emanating from his office. 7 Section 7 Other Town Boards 3-7-1 The Board of Selectmen shall also have the power to appoint such other boards as may be in existence on the effective date of this charter and for whom no other method of appointment is provided in this charter. The board shall also appoint such other boards as may be hereafter established by general law, charter, by-law, or vote of the town meeting. 3-7-2 The provisions of 3-7-1 shall be inapplicable to the board of library trustees. Section 8 Prohibitions 3-8-1 Except for the purpose of investigation authorized by this charter, the Board of Selectmen or its members shall not give orders to any town employee who is subject to the direction and supervision of the Town Manager either publicly or privately. 8 CHAPTER 4 THE TOWN MANAGER Section 1 Appointment 4-1-1 The Board of Selectmen, by an affirmative vote of at least four members, shall appoint a Town Manager for an indefinite term to serve at its pleasure. 4-1-2 The Board of Selectmen shall appoint a search committee of at least three people, not to include any member of the Board of Selectmen, for the purpose of recommending candidates for the position of Town Manager. 4-2-1 The Town Manager shall be appointed on the basis of education, executive and administrative qualifications and experience. Section 3 Duties 4-3-1 The Town Manager shall be the chief administrative officer of the town and shall be responsible for administering and coordinating all employees, activities and departments placed by general law, this charter or by-law under the control of the Board of Selectmen and of the Town Manager. 4-3-2 He shall devote his full working time to the duties of his office; he shall not become a candidate for, or hold, any elective office during his term of appointment; and he shall not engage in any business activity during his term, except with the written consent of Board of Selectmen. He shall: (a) Attend all meetings of the Board of Selectmen, except when excused, and he shall have the right to speak but not to vote. (b) Assemble, prepare, and present to the Board of Selectmen all annual operating and capital budgets of the town and be responsible for the development and annual revision of the capital improvements program. (c) Be responsible for seeing that the budget is administered and expended as adopted by the town meeting and in accordance with general law, this charter, and by-law. (d) Keep the Board of Selectmen informed regarding all departmental operations, fiscal affairs, general problems, and administrative actions, and to this end shall submit quarterly reports to the board. 9 (e) Keep the board informed regarding the availability of state and federal funds and how such funds might relate to unmet short-range and long-range needs. (f) Solicit and prepare applications for grants. (g) Be responsible for the day-to-day administration of the town's personnel system. (h) Be responsible for the purchasing of all town services and departments, except those of the school department. (I) Make recommendations to the Board of Selectmen regarding vacancies in town offices and boards to be filled by the Board of Selectmen. 0) Be responsible for the administrative functions of recreation, historical preservation, services for the elderly, and veteran's services. (k) Develop, keep, and annually update a full and complete inventory of all property of the town, except school property, both real and personal. (1) Distribute, or cause to be distributed, copies of the warrant and Finance Committee report for all town meetings to the residences of all registered voters. (m) Negotiate collective bargaining contracts on behalf of the Board of Selectmen, unless the board shall have designated another negotiator. (n) Perform such other duties as may be required by this charter, by- law, or vote of the Board of Selectmen. Section 4 Responsibilities for Appointments 4-4-1 Subject to the approval of the Board of Selectmen, the Town Manager shall have the power to appoint and, on the basis of merit and fitness alone, and except as may otherwise be provided by general law, this charter, or personnel by-laws, may suspend or remove: (a) a Town Clerk, (b) division and department heads, (c) a planning board (d) an industrial development financing authority, (e) an industrial commission, and (f) a board of health and/or a health agent. 10 4-4-2 The Town Manager shall also appoint, on the basis of merit and fitness alone, and except as may otherwise be provided by the General Laws, this charter, personnel by-law, or collective bargaining agreements, may suspend or remove all full- time, part-time or seasonal employees, except those of the library trustees, the police and fire departments and the School Committee. All such appointments and removals shall be subject to disapproval by an affirmative vote of the Board of Selectmen taken within fourteen days, provided the vote is first taken at a Board of Selectmen's meeting at which five members are present and voting; otherwise, if less than five members are present and voting, such disapproval shall only require three votes. Section 5 Responsibilities in Personnel Administration 4-5-1 The Town Manager shall administer and enforce collective bargaining contracts, personnel rules, regulations, and by-laws adopted by the town. 4-5-2 After consultation with the Board of Selectmen, the Town Manager shall from time to time propose, and the town meeting may adopt, with or without amendment, personnel by-laws and rules relating to all town positions, except those covered by collective bargaining contracts and those of the school department. Such by-laws shall provide for: (a) Methods of determining the merit and fitness of candidates for appointment and promotion. (b) Policies and procedures regulating reduction in force and removal of employees. (c) Hours of work, attendance regulations, and provisions for sick, vacation, military and other leave. (d) Policies and procedures governing persons holding provisional appointments. (e) Policies and procedures governing relationships with employee organizations. (f) Policies regarding in service training programs. (g) Grievance procedures for the hearing of grievances. (h) Such other practices and procedures as may be necessary for the administration of the personnel system. Chapter 4 Subsection 4-5-2 amended by Chapter 70 of the Acts of 1997 amended by striking out clauses (a) and (b). Subsequent sections renumbered. Approved August 13, 1997. 11 Section 6 Responsibilities for Administrative Reorganization 4-6-1 The Town Manager may, with the approval of the Board of Selectmen, establish, reorganize, consolidate or abolish any department or position placed by this charter under his direction and supervision, except as otherwise provided by general law or this charter. 4-6-2 The creation of any new full-time, compensated position shall require the approval of the affirmative vote of four members of the Board of Selectmen, and shall not become effective until the position has been funded by a vote of the Town Meeting. Section 7 Responsibilities for Disbursements 4-7-1 Warrants for the payment of town funds, prepared and signed by the town accountant in accordance with general law procedures, shall be submitted to the Town Manager, and his approval thereof shall be sufficient authorization for payment by the director of the division of finance or his designee; provided, however, that at least three selectmen shall approve all warrants in the manager's absence or in the event of a vacancy in his office. 12 Section 8 Evaluation 4-8-1 The Board of Selectmen shall annually evaluate the performance of the Town Manager. The board shall adopt a written set of procedures and criteria which shall form the basis for the evaluation. 4-8-2 A copy of the evaluation shall be provided to the manager. Section 9 Removal 4-9-1 The Board of Selectmen, by the affirmative vote of at least three members, may initiate the removal of the Town Manager by adopting a resolution to that effect, stating the reasons therefor, provided that no such resolution shall be adopted within sixty days following any town election that has resulted in a change in the incumbents on the board. The vote initiating removal shall be taken at a regular scheduled public meeting and in open session. 4-9-2 The adoption of said resolution shall serve to suspend the Town Manager for a period of not more than forty-five days, during which the salary shall continue to be paid. A copy of such resolution shall be delivered forthwith to the Town Manager in person, or sent by registered mail to his place of residence. 4-9-3 Within five days following the receipt of such resolution, the Town Manager may file a written request for a public hearing. If such a hearing is requested, the board shall schedule it within two weeks and it shall be held in public place. At least seven days prior to the public hearing, the board shall advertise the hearing in a newspaper of local circulation and shall cause identical notices citing the purpose, location, time, and date to be posted in the town hall and in three other places of public access within the town. 4-9-4 The moderator shall preside at such hearing. 4-9-5 At any such hearing, the reasons for the removal shall first be read aloud. The Town Manager shall then have the right to respond, either personally or through counsel. The Board of Selectmen and the Town Manager shall have the right to call witnesses and to subpoena any and all town records. 13 4-9-6 Final removal of any Town Manager shall be effected by the affirmative vote of at least three members of the Board of Selectmen at a public meeting of the board held within seven days of such public hearing, if requested. If no hearing has been requested, final removal may be effected by an affirmative vote of at least three members, at a meeting of the board held not earlier than fourteen days after the vote initiating the removal. The salary of the Town Manager shall continue to be paid for a period of sixty days after the vote effecting removal from office. 4-9-7 The Town Manager shall provide the Board of Selectmen with at least ninety days notice of an intended resignation, provided, however, that the board may, at its discretion, shorten or waive such requirement. Section 10 Filling Vacancy 4-10-1 When a vacancy arises in the office of the Town Manager, the Board of Selectmen shall advertise the vacancy as soon as possible. The board shall fill the vacancy as soon as possible but in any case, within six months. Section 11 Acting Town Manager 4-11-1 The Board of Selectmen shall designate, within 10 days, a town employee or other person to exercise the rights and perform the duties of Town Manager during any vacancy caused by the temporary absence or suspension, or removal, resignation, or death of the Town Manager. The appointment shall be for a period not to exceed ninety days, and it may be renewed, in the case of suspension, removal, resignation, or death only once for an additional period not to exceed ninety days. The appointee shall be ineligible for appointment as Town Manager. 14 CHAPTER 5 TOWN ADMINISTRATIVE ORGANIZATION Section 1 General 5-1-1 The administrative functions of the town government shall be performed within the organizational framework of several divisions and departments. 5-1-2 The divisions should include: (a) Division of Finance and Administration; (b) Division of Planning and Community Development; and (c) Division of Public Works, and include other divisions, as the Town Manager may establish with the approval of the Board of Selectmen. 5-1-3 The departments shall include the office of Town Clerk, a police department, a fire department and such other departments as the Town Manager shall establish,with the approval of the Board of Selectmen. 5-1-4 Responsibility for the functions administered within the divisions shall be vested in the Town Manager, who may organize these responsibilities, as necessary with the approval of the Board of Selectmen by an affirmative vote. 5-1-5 The Town Manager, with the approval of the Board of Selectmen, should designate those divisions to be supervised by a director and those, if any, to be supervised by the Town Manager. If the manager is designated to act as director of one or more divisions, he should in the first occurrence only serve in such additional capacity without additional compensation. 5-1-6 With the approval of the Town Manager a division director, other than the manager, may designate himself as head of one or more departments within his respective division, but if so designated he shall serve in such additional capacity without additional compensation. Section 2 Division of Finance 5-2-1 The administrative functions of assessment, tax and fee collections, receipts and disbursements, purchasing, and others of a fiscal nature shall be carried out within a division of finance. 15 Section 3 Division of Planning and Community Development 5-3-1 The administrative functions of planning, zoning enforcement, subdivision control, the issuance of building permits, all town inspections required by law, conservation, land acquisition and management, approval of street plans, health, building code enforcement, urban revitalization, and community development and such other services as may be assigned by this charter or by-law shall be carried out within a division of planning and community development. Section 4 Division of Public Works 5-4-1 The administrative functions of cemeteries, the collection and disposal of solid waste, engineering, forestry, trees, highways, parks, public grounds, sewers, water, and such other public works functions as may be assigned by this charter or by by-law shall be carried out within a division of public works. Section 6 Police Department 5-6-1 A police department shall be established under a chief of police, who shall be appointed by the Board of Selectmen. Section 7 Fire Department 5-7-1 A fire department shall be established under a fire chief, who shall be appointed by the Board of Selectmen. 16 CHAPTER 6 ELECTED TOWN BOARDS AND OFFICERS Section 1 General Provisions 6-1-1 Beginning with the first town election held after the adoption of this charter, the officers and boards to be elected by vote of the town shall be: a moderator, a regional technical high School Committee representative, a Board of Selectmen as provided in Chapter 3, a housing authority, and a School Committee. 6-1-2 Boards and commissions established or continued under this chapter shall perform their functions and duties in accordance with the constitution, general law, this charter, and by-laws. 6-1-3 During the term for which he is elected, and for one year following expiration of his term, no officer or member of any board or commission established under this chapter shall be eligible to accept any appointed, paid town position placed under the jurisdiction of the respective office or board vacated. Section 2 Vacancies 6-2-1 Except as otherwise provided, vacancies in elected town boards established under this charter shall be filled by the Board of Selectmen together with the remaining members of the respective board, in accordance with the provisions of general law. Section 3 Moderator 6-3-1 A moderator shall be elected for a three-year term. The moderator shall: (a) preside at all town meetings; (b) appoint the members of the Finance Committee; (c) appoint all ad hoc committees of the town meeting in accordance with clause 2-7-1 and (d) preside at any hearing called to discuss the suspension or removal of the Town Manager. Section 4 Regional School Representative 6-4-1 A Greater Lawrence Regional Technical High School District Committee representative shall be elected for a three-year term. 17 Section 5 School Committee 6-5-1 A School Committee of five members shall be elected at large for three-year overlapping terms. Section 6 Housing Authority 6-6-1 There shall be a housing authority of five members, one of whom shall be appointed under authority of the commonwealth and four of whom shall be elected. All members shall serve five year overlapping terms. 18 CHAPTER 7 APPOINTED TOWN BOARDS Section 1 Zoning Board of Appeals 7-1-1 A zoning board of appeals of five members and three associate members shall be appointed by the Board of Selectmen for three-year overlapping terms. Section 2 Conservation Commission 7-2-1 A conservation commission of seven members shall be appointed by the Board of Selectmen for three-year overlapping terms. Section 3 Council on Aging 7-3-1 A council on aging of eleven members shall be appointed by the Board of Selectmen for three-year overlapping terms. Section 4 Historical Commission 7-4-1 A historical commission of seven members shall be appointed by the Board of Selectmen for three-year overlapping terms. Section 5 Recreation Council 7-5-1 A recreation council of nine members shall be appointed by the Board of Selectmen for three-year overlapping terms. Section 6 Arts Council 7-6-1 An arts council of an indefinite, but odd, number shall be appointed by the Board of Selectmen for three-year overlapping terms. Section 7 Planning Board 7-7-1 A planning board of five members shall be appointed by the Town Manager for three-year overlapping terms. 19 Section 8 Board of Health 7-8-1 A board of health of three members shall be appointed by the Town Manager for three-year overlapping terms, unless the manager shall replace the board with a health agent, with the approval of the Board of Selectmen, in accordance with general law. Section 9 Library Trustees 7-9-1 A board of library trustees shall be established as provided by the bequest establishing the library. 7-9-2 The board shall appoint the librarian and staff of the library. Section 10 Youth Services Commission 7-10-1 A youth services commission for an indefinite, but odd, number shall be appointed by the Board of Selectmen for three-year overlapping terms. Section 11 Disability Commission 7-11-1 A commission on disability issues of an indefinite, but odd, number shall be appointed by the Board of Selectmen for three-year overlapping terms. Section 12 Change in Composition of Appointed Town Boards 7-12-1 The Town Meeting may, by by-law, enlarge or decrease the number of persons to serve as members of boards established under this chapter, provided, however, that all such boards shall always consist of an odd number of members. Section 13 Town Boards, Commissions,and Committees 7-13-1 Multi-member boards established by this charter shall possess and exercise all powers given to them under the Constitution and laws of the Commonwealth, and shall have and exercise such additional powers and duties as may be authorized by this charter, by-law, or vote of the town meeting. 7-13-2 All boards, commissions, and committees of the town shall: (a) organize annually: (b) elect a chairman and other necessary officers:(c) establish a quorum requirement for their meetings in accordance with general law: (d) adopt rules of 20 procedure and voting: and (e) maintain minutes and all other records of proceedings, copies of which shall be public record and filed monthly with the Town Clerk. 7-13-3 All such boards shall meet with the Board of Selectmen at least once in each year. 7-13-4 All such boards shall conduct their meetings in accordance with the open meeting provisions of the open meeting law, Sect. 23A-C of M.G.L. Chap. 39, as may be amended from time to time. 7-13-5 Members of boards established under this chapter may receive such compensation as may be authorized by the town meeting, but during the term for which a member is appointed and for one year following expiration of such term, no member of any appointed board under this charter shall be eligible to accept any additional paid position under any such board. 7-13-6 Any person duly appointed to any office or board shall take up the duties of his office immediately, provided that he first shall have been sworn to the faithful performance of his duties by the Town Clerk. 7-13-7 The unexcused absence of a member from four or more consecutive meetings of any appointed multi-member body shall serve to vacate the office. When such a vacancy has been created, the chairman shall advise the appointive authority forthwith, who shall fill the vacancy within thirty days. 7-14-1 The Board of Selectmen by an affirmative vote may create additional appointed town boards and assign powers under the Constitution and laws of the Commonwealth, and shall have and exercise such additional powers and duties as may be authorized by this charter, by-law or vote of the town meeting. 21 CHAPTER 8 ELECTIONS Section 1 Town Elections 8-1-1 The regular election for all town offices shall be by official ballot held on the last Tuesday in March of each year. 8-1-2 All general law provisions with regard to town elections shall apply, except as may herein be provided by this charter. Section 2 Town Elections to be Nonpartisan 8-2-1 All town elections shall be nonpartisan, and election ballots shall be printed without any party mark or designation whatsoever. Section 3 Eligibility of Town Voters 8-3-1 Any registered voter of the town shall be eligible for election to any elective office or board of the town, provided however that no person shall be a candidate for or hold, concurrently, more than one paid elective office of the town. Section 4 Time of Taking Office 8-4-1 Any person duly elected to any office or board shall take up the duties of his office immediately following certification. Section 5 Recall of Elective Officers 8-5-1 Any holder of an elective office may be recalled by the voters as herein provided. 8-5-2 One percent of the registered voters of the town may file with the Town Clerk an affidavit containing the name of the officer sought to be recalled and a statement of the grounds for recall. The Town Clerk shall thereupon deliver to the voter the first named on such affidavit a sufficient number of copies of petition blanks demanding such recall, printed forms which he shall keep available. The blanks shall be issued by the Town Clerk with his signature and official seal attached thereto. They shall be dated and addressed to the Board of Selectmen, and shall contain the name of the person to whom they are issued,the number of petitions so issued, the name of the person whose recall is sought, the grounds for recall as stated in the affidavit, and shall be demand the election of a successor to such office. 22 8-5-3 A copy of the petition shall be entered in the town meeting records. The recall petition shall bear the signatures and residential addresses of at least twenty- five percent of registered voters. The recall petition shall be returned to the Town Clerk within 20 working days after the filing of the affidavit. 8-5-4 The Town Clerk shall within twenty-four hours of receipt submit the petition to the registrars of voters in the town, and the registrars shall within seven working days certify thereon the number of signatures which are named of registered voters. 8-5-5 If the petition shall be found and certified by the Town Clerk to be sufficient he shall submit the same with his certificate to the Board of Selectmen. The Board of Selectmen shall, within three working days, give written notice by registered mail of the receipt of the certificate to the officer sought to be recalled and shall, if the officer does not resign within five days thereafter, order an election to be held on a date fixed by them not less than forty-five nor more than sixty days after the date of the Town Clerk's certificate that a sufficient petition has been filed; provided, however, that if any other town election is to occur within ninety days after the date of the certificate, the Board of Y shall postpone the holding of the recall election to the date of such other election. 8-5-6 Any officer sought to be removed may be a candidate to succeed himself. The nominations of candidates, the publication of the warrant for the recall election, and the conduct of the same, shall all be in accordance with the provisions of general law relating to elections, and the election to replace the officer sought to be removed shall be held on the same day as the recall election. 8-5-7 The incumbent shall continue to perform the duties of office until the recall election. If not recalled, he shall continue in office for the remainder of his unexplored term, but shall not again be subject to recall during his term of office. If recalled, he shall be deemed removed upon the qualification of his successor who shall hold office during the unexpired term. If the successor fails to qualify within five days after receiving notification of his election, the incumbent shall thereupon be deemed removed and the office vacant. 8-5-8 The form of the question to be voted upon shall be substantially as follows: "shall [here insert the name and title of the elective officer whose recall is sought] be recalled?" The action of the voters to recall shall require a majority vote, but shall not be effective unless the total of those voting for and against recall shall exceed twenty percent of the registered voters of the town. 8-5-9 No person having been removed from office by recall or having resigned from office while recall proceedings were pending against him, shall be appointed to any town office within two years following said removal or resignation. 23 24 CHAPTER 9 FINANCIAL PROVISIONS AND PROCEDURES Section 1 Finance Committee 9-1-1 A Finance Committee of nine members shall be appointed by the moderator for three-year overlapping terms. Three members shall be appointed annually. 9-1-2 Any person duly appointed to the Finance Committee shall take up the duties of the office upon the final adjournment of the annual town meeting, provided that he first shall have been sworn to the faithful performance of his duties by the Town Clerk. 9-1-3 Vacancies in the Finance Committee shall be filled by the moderator within thirty days after he has been notified, in writing, of the vacancy on the board. Any person appointed to fill out an unexpired term shall take up the duties immediately, provided that he first shall have been sworn to the faithful performance of his duties by the Town Clerk. 9-1-4 No member of the Finance Committee shall hold any other elected or appointed town office. Section 2 Submission of Budget and Budget Message 9-2-1 On or before the first day of October of each year, the Town Manager shall request and receive from the director of finance and the assessor(solicitor) the estimated revenues for the ensuing fiscal year. 9-2-2 Upon receipt of any additional specific fiscal data provided by the Commonwealth, such estimates shall be revised, updated, and submitted forthwith to the Town Manager. 9-2-3 On or before the first day of November of each year, the Board of Selectmen, after consulting with the Town Manager, shall issue a policy statement relating to the budget for the ensuing fiscal year. The statement shall establish the outer limits of possible budget growth for the town. 25 9-2-4 All department heads, boards, committees, and commissions, shall submit their budget requests to the Town Manager at least one hundred and twenty days before the date of the annual town meeting or at an earlier time, as directed by the Town Manager. The Town Manager shall forward such budget requests to the Finance Committee forthwith. 9-2-5 At least ninety days prior to the scheduled date of the annual town meeting, the Town Manager shall submit to the Board of Selectmen and the Finance Committee a comprehensive budget for all town functions for the ensuing fiscal year and an accompanying budget message. 9-2-6 The budget message shall explain the budget both in fiscal terms and in terms of what specific projects are contemplated in the year ahead. It shall:(a) outline the proposed financial policies of the town for the ensuing fiscal year; (b) describe the important features of the budget; (c) indicate any major changes for the current year in financial policies, expenditures, and revenues, together with the reason for such changes; (d) summarize the town's debt position; and (e) include such other material as the Town Manager may deem appropriate. 9-2-7 The budget shall provide a complete financial plan for all town funds and activities and shall be in such format as the Finance Committee may suggest, provided the format suggested is compatible with the standards recommended by the state association of Finance Committees. The budget shall indicate proposed expenditures for both current operations and capital projects during the ensuing fiscal year, detailed by divisions, departments, offices, boards, commissions, committees, and specific purposes and projects. Section 3 Action on Proposed Budget 9-3-1 The Board of Selectmen shall within thirty days adopt the budget, with or without amendments, and submit it to the Finance Committee. The Board of Selectmen shall also transmit the budget request of the School Committee to the Finance Committee. 9-3-3 The Board of Selectmen shall be responsible for presenting the budget to the town meeting. 26 Section 4 Budget Adoption 9-4-1 The town meeting shall adopt the budget, with or without amendments, prior to the beginning of the fiscal year. Section 5 Capital Improvements Plan 9-5-1 The Town Manager shall prepare a five-year capital improvements plan which shall include: (a) a clear summary of its contents; (b) a list of all capital improvements proposed to be undertaken during the next five years, together with supporting data; (c) cost estimates, methods of financing, and recommended time schedules; and (d) the estimated annual cost of operating and maintaining the facilities or equipment to be contracted or acquired. The above information may be revised and shall be extended each .year with regard to capital improvements pending or in the process of construction or acquisition. 9-5-2 The capital improvements plan shall be submitted to Board of Selectmen at least one hundred and fifty days prior to the date of the annual town meeting. The board shall act thereon within thirty days and shall then submit it to the Finance Committee, which shall issue its recommendations as part of the annual Finance Committee report. Section 6 Notice of Public Hearing on Capital Improvements Plan 9-6-1 The Finance Committee shall conduct at least one public hearing on the proposed budget and Capital Improvements Plan and shall issue printed recommendations and detailed explanations on all financial articles including the Operating Budget and the Capital Improvements Plan in an Annual Finance Committee report, which shall be mailed or distributed to the residences of all registered voters at least ten days prior to the scheduled date of the Annual Town Meeting. In preparing its recommendations, the Committee may require the Town Manager, any town division, department, office, board, commission or committee to furnish it with appropriate financial reports and budgetary information. 9-7-1 At least ninety days before the end of the fiscal year, the Board of Selectmen shall retain a certified public accountant or accounting firm to conduct an audit of all accounts, books, records and financial transactions of every division, department, office, board, commission or committee of the town and to file its report within one hundred and twenty days after the end of the fiscal year. 9-7-2 A copy of every auditor's report shall be filed with the Town Clerk, shall be a public record, and a summary thereof shall be published in the next Annual Town Report. Section 8 Limit on Spending 27 9-8-1 In the final month of any fiscal year no division, department, commission, office, or agency may expend, except for amounts previously encumbered, more than one-twelfth of its annual appropriation unless such expenditures have been previously approved by the Finance Committee. 28 CHAPTER 10 PLANNING AND THE ENVIRONMENT Section 1 Powers and Duties of the Planning Board 10-1-1 A planning board shall be appointed as provided in clause 7-7-1. 10-1-2 The board shall exercise such powers and duties as prescribed by general law, this charter, and by-law. 10-1-3 The board shall make recommendations to the Town Manager and to the Director of the Division of Planning and Community Development on all matters concerning the physical, economic, and environmental development of the town. Section 2 Master Plan 10-2-1 The board shall be responsible for the development and periodic updating of a master or comprehensive plan. A summary of said plan shall be submitted to the Town Meeting, which shall adopt the summary, with or without amendments. After the summary has been acted on by the town, the planning board shall utilize the plan in making recommendations to the Town. The board shall report annually to the town on the status of the master plan. Section 3 Industrial Development Financing Authority 10-3-1 An industrial development financing authority of five members shall be appointed by the Town Manager for five-year overlapping terms. 10-3-2 The authority shall exercise such powers and duties as prescribed by general law,this charter, and by-law. Section 4 Industrial Commission 10-4-1 An industrial commission of five members shall be appointed by the Town Manager for three-year overlapping terms. 10-4-2 The commission shall exercise such powers and duties as prescribed by general law, this charter, and by-law. Section 5 Coordination of Activities 29 10-5-1 It shall be the general responsibility of the Town Manager and/or the Director of the Division of Planning and Community Development, if appointed, to coordinate the activities of the town planner, the planning board, conservation commission, industrial authority, industrial commission, and other boards, commissions, and committee, except the board of appeals, concerned with the physical, economic, and environmental development of the Town. 30 CHAPTER 11 TRANSITIONAL PROVISIONS Section 1 Effective Date 11-1-1 Except as provided for in this chapter, this charter shall be in full effect on the first day of October following its adoption by the voters. 11-1-2 This charter shall be in partial effect upon its adoption by the voters to permit the Board of Selectmen to immediately commence to search for a Town Manager. The provisions of 4-1-3 shall be inapplicable to the first Town Manager search and appointment made under this charter, and the appointment shall be made effective of the first day of September following its adoption. Section 2 Continuation of Existing Laws 11-2-1 Except as specifically provided in this charter all general laws, special laws, town by-laws, votes, rules and regulations pertaining to the town which are in force when this charter takes effect and which are not inconsistent with the provisions of this charter shall continue in full force and effect until amended or rescinded by due course of law or expire by their own limitation. Section 3 Continuation of Government 11-3-1 Except as specifically provided in this charter, all committees, commissions, councils, boards, departments, offices and other agencies of the town shall continue in existence and their incumbents shall continue to perform their duties until not reappointed, reelected, or until successors to their respective positions are duly appointed or elected or their duties have been transferred. Section 4 Continuation of Personnel 11-4-1 Any person serving in the employment of the town shall retain such position and shall perform his duties until provisions shall have been made in accordance with this charter for the performance of said duties by another person or agency; provided, however, that no person in the permanent, full-time service or employment of the town shall forfeit his pay grade or time in service. All such persons shall be retained in a capacity as similar to their former capacity as it is practical so to do and shall be eligible for appointment to a position at a higher pay grade 11-4-2 All elected officers in office on the first day following the adoption of this charter shall each be allowed to complete his term of office. At the expiration of said 31 term, said incumbents shall be eligible for appointment to an appointed position in the town's employ. Section 5 Transfer of Records and Property 11-5-1 All records, property and equipment whatsoever of any office, department, or agency or part thereof, the powers and duties of which are assigned in whole or in part to another office or agency, are assigned to such office or agency. Section 6 Public Works 11-6-1 The provisions of this charter which relate to the establishment of a division of public works shall become effective sixty days after the Town Manager has been appointed. Upon this date, the highway surveyor shall become subject to the direction of the director of the division, for the remainder of his elected term of office. Upon the expiration of his term of office, the office shall be discontinued, and the incumbent shall be eligible for appointment to a similar position in the division of public works. 11-6-2 The terms of office of the incumbent members of the board of public works shall continue to their normal expiration. As the term of each incumbent expires, the position may be filled by the Town Manager with the approval of the Board of Selectmen for a term of one year. The board shall continue to discharge its duties until the board is abolished in accordance with the provisions of clause 4-6-1, and its powers and duties are reassigned to the director of public works. Section 7 Board of Assessors 11-7-1 The terms of office of the incumbent members of the board of assessors shall continue to their normal expiration. As the term of an incumbent expires, the position may be filled by the Town Manager with the approval of the Board of Selectmen for term of one year. The board shall continue to discharge its duties until its powers and duties are reassigned in accordance with the provisions of clause 4-6-1. Section 8 Planning Board 32 11-8-1 The terms of office of the incumbent members of the planning board shall continue to their normal expiration. As the terms of office of planning board members expire, such positions shall be filled by appointment for a term of three years. Section 9 Boards Discontinued 11-9-1 On the effective date of this charter, the board of fire engineers, the personnel board, and the capital budget committee shall be discontinued. 11-9-2 The board of public works established by Chapter 379 of the Acts of 1906 may be abolished in accordance with the provisions of clause 4-6-1. Section 10 Charter Amendment 11-10-1 This charter may be replaced, revised, or amended in accordance with the procedures made available by Article eighty-nine of the amendments to the Constitution of the Commonwealth, commonly known as the Home Rule Amendment, and M.G.L. Chapter 4313, commonly known as the Home Rule Procedures Act. Section 11 Definitions 11-11-1 Unless another meaning is clearly apparent, from the manner in which the word is used, the following words as used in this charter shall have the following meanings: (a) Charter. The word "charter" shall mean this charter and any amendments to it made through any of the methods provided under Article eighty nine of the amendments to the Constitution of the Commonwealth. (b) Town. The word "town' shall mean the Town of North Andover. (c) Town Agency. The words "town agency" shall mean any board, commission, committee, department or office of town government. (d) Majority Vote. The words "majority vote" shall mean a majority of those present and voting provided that a quorum of the body is present. (e) Voters. The word "voters" shall mean registered voters of the Town of North Andover. 33 (f) Multi-member Body. The words "multi-member body" shall mean any board, commission or committee of the town consisting of two or more persons, whether appointed or elected. (g) Certification. The word "certification" shall mean that person has been declared elected and sworn to the faithful performance of duty by the Town Clerk. (h) He/his.The words"he"or"his"or any use of a masculine noun or pronoun in this charter shall include the feminine. (I) Elected officer. The words "elected officer" as used in 11-4-2 shall mean the Town Clerk,the highway surveyor,the collector-treasurer, and any other individual elected office, abolished or made appointive by this charter. 34 ZONING BYLAW q, J TOWN OF NORTH ANDOVER 1972 Last amended July 13, 2008 ATTEST: A True Copy O L4"sy,,,- Town Clerk NORTH ANDOVER ZONING BYLAW TABLE OF CONTENTS PAGE TABLE OF CONTENTS 2-8 TABLE OF REVISIONS 9-17 Section 1 PURPOSES 18 Section 2 DEFINITIONS 19-26 2.1 General 19 2.2 Specific Words and Phrases 19 2.21 Accessory Use or Structure 19 2.21.1 Adult Bookstore(1966/22) 19 2.21.2 Adult Cabaret(1966/22) 19 2.21.3 Adult Motion Picture Theater(1966/22) 19 2.21.4 Adult Paraphernalia Store(1966/22) 19 2.21.5 Adult Video Store(1966/22) 19 2.21.6 Adult Use(1966/22) 19 2.22 Automobile Repair Shop(1989/32) 20 2.23 Automobile Service Station 20 2.24 Body Shop 20 2.25 Board of Appeals 20 2.26 Building 20 2.26.1 Building Coverage(1989/32) 20 2.27 Building Height(1999/20) 20 2.28 Building,Principal 20 2.29 Car Wash 20 2.29.1 Congregate Housing 20 2.29.2 Day Care Center(1985/21) 20 2.3 District 21 2.30 A Drive-through Facility(2006/4) 21 2.30.1 Driveway(1989/32) 21 2.31 Dwelling 21 2.32 Dwelling,Multi-Family 21 2.33 Dwelling,One Family 21 2.34 Dwelling,Two Family 21 2.35 Dwelling Unit 21 2.36 Erected 21 2.37 Family 22 2.37.1 Family Suite(1987/22) 22 2.38 Frontage 22 2.38.1 Floor Area,Gross(1987/20) 22 2.38.2 Floor Area,Net(1987/21) 22 2.38.3 Floor Area Ratio(1989/32) 22 2.39 Guest House 22 2.39.1 Hazardous Material(s)(1990/34) 22 2.40 Home Occupation(1989/32) 22 2.41 Hotel or Motel(1996/19) 23 2.41.1 Independently Elderly Housing 23 2.42 Loading Bay 23 2.43 Lot(1989/32) 23 2.44 Lot,Corner 23 2.45 Lot Lines 23 FN 2.46 Lot Line,Front 23 2.47 Lot Line,Rear 23 2.48 Lot line,Side 23 2.49 Lot Line,Street 23 2.50 Mean High Water Mark 23 2.51 Medical Center 23 2.52 No Cut Zone(1989/32) 23 2.53 Non-Conforming Use 23 2.54 Office,Business 24 2.55 Office,Professional 24 2.56 Parking Area,Private 24 2.57 Parking Garage,Private 24 2.58 Parking Garage,Public 24 2.59 Personal Service Establishment 24 2.60 Place of Worship 24 2.61 Planning Board 24 2.61.1 Principal Structure(1989/32) 24 2.62 Public Building or Use 24 2.63 Rooming House 24 2.64 Special Permit 24 2.65 Special Permit Granting Authority 24 2.66 Special Permit Unit 25 2.67 Street 25 2.68 Structure 25 2.69 Town House 25 2.70 Tributary 25 2.71 Yard(Setback) 25 2.72 Yard,Front(Setback) 25 2.73 Yard,Rear(Setback) 25 2.74 Yard,Side(Setback) 26 2.75 (1985/25)See 2.30.1 26 2.76 Planned Development District 26 2.77 Public Parking Area 26 Section 3 ZONING DISTRICTS AND BOUNDARIES 27 3.1 Establishment of Districts 27 3.2 Zoning Map 27 3.3 District Boundaries 27 3.4 Historic Districts (1987/16) 27 Section 4 BUILDINGS AND USES PERMITTED 28 4.1 District Use Regulations 28 4.1.1 General Provisions 28 4.12 Permitted Uses 28 4.121 Residence 1,2,and 3 Districts 28-30 4.122 Residence 4 District(2004/40)(2006/38) 30-33 4.123 Village Residential District(1987/11) 33-34 4.124 Residence 5 District 34-36 4.125 Residence 6 District(1989/43) 36-38 4.126 Business 1 District 38 4.127 Business 2 District 38-39 4.128 Business 3 District 39-40 4.129 Business 4 District 40 4.130 Village Commercial District(1987/12) 41 FN 4.131 General Business District 41 4.132 Industrial 1 District 42 4.133 Industrial 2 District 42 4.134 Industrial 3 District 43 4.135 Industrial"S"District 44 4.136 Watershed Protection District(1995/38)(2006/41) 44-52 4.137 Flood Plain District(2004/43) 52-57 4.2 Phased Development Bylaw(2004/38) 58-60 4.3 Residential Re-Adaptive Special Permit(2004/42) 61-63 Section 5 EARTH MATERIALS REMOVAL 64-69 5.1 General 64 5.2 Definitions 64 5.3 Application for Earth Removal Permit 64 5.4 Permits for Earth Removal 65 5.5 Earth Removal Incidental to Development 65 5.6 Miscellaneous Removal of Earth 66 5.7 Operation Standards 66-68 5.8 Restoration Standards 68 5.9 Security Requirements 68-69 Section 6 SIGNS AND OUTDOOR LIGHTING REGULATIONS 70-77 6.1 Authority and Interpretation 70 6.2 Purpose 70 6.3 Definitions 70-71 6.4 Administration and Enforcement 71 6.5 Prohibitions 72 6.6 Permitted Signs 73-77 Section 7 DIMENSIONAL REQUIREMENTS 78-80 7.1 Lot Area 78 7.1.1 Contiguous Buildable Area(CBA) 78 7.1.2 Lot Width 78 7.1.3 Restrictions 78 7.2 Street Frontage 78 7.2.1 Access 79 7.2.2 Frontage Exception 79 7.3 Yards(Setbacks) 79 7.4 Building Heights 79 7.5 Lot Coverage 80 7.6 Floor Area Ratio 80 7.7 Dwelling Unit Density 80 7.8 Exceptions 80 Section 8 SUPPLEMENTARY REGULATIONS 81-90 8.1 Off Street Parking&tables 81-90 8.2 Automobile Service Station&Other Automobile 90 Services 8.3 Site Plan Review 90-118 8.4 Screening and Landscaping Requirements 97-98 for Off-Street Commercial&Industrial Districts 8.5 Planned Residential Developments(PRD) 98-103 8.6 Satellite Receiver Discs 103-104 8.8 Adult Use Zone 104-106 FN 8.9 Wireless Service Facilities 106-118 8.10 Lot/Slope Requirements 117-118 Section 9 NON-CONFORMING USES 119-120 9.1 Non-Conforming Uses 119 9.2 Alteration or Extension 119 9.3 Pre-Existing Non-conforming Single Family Structures 119-120 and Uses in the Residential 1,Residential 2,Residential 3, Residential 4 and Residential 6 Districts(2004/41) 9.4 Building after Catastrophe 120 9.5 Abandonment 120 Section 10 ADMINISTRATION 121-127 10.1 Enforcement 121 10.1.1 Building Permit 121 10.12 Certificate of Use and Occupancy 121 10.13 Penalty for Violation(1986/15) 121 10.14 Planning Board,Associate Member 121-122 10.2 Board of Appeals 122 10.21 Appointment and Organization 122 10.22 Powers of the Board of Appeals 122 10.3 Special Permit 122 10.31 Conditions for Approval of Special Permit 122 10.32 Temporary Permit 123 10.4 Variance and Appeals 123 10.5 Amendments to Zoning Bylaw 124 10.51 Submission of Amendment to Planning Board 125 10.52 Public Hearing 125 10.53 Report by Planning Board 125 10.54 Failure to Adopt 125 10.55 Repetitive Petitions 125 10.56 Procedural Defects 126 10.57 Effect of Subsequent Amendments 126 10.6 Conflict of Laws 126 10.7 Validity 126 10.8 Repetitive Petitions 126 10.9 Withdrawal without Prejudice 127 Section 11 PLANNED DEVELOPMENT DISTRICT 128-131 11.1 Jurisdiction 128 11.2 Purpose 128 11.3 Procedures 128-131 11.4 Minimum Requirements 129 11.5 Permitted Uses 130 11.6 Relation to Subdivision Control Act 131 Section 12 LARGE ESTATE CONDOMINIUM CONVERSION 132-133 12.1 Purpose 132 12.2 Requirements 132-133 12.3 Contents of Application 133 12.4 Change in Application 133 12.5 Review by the Planning Board 133 Section 13 CONTINUING CARE RETIREMENT CENTER 134-137 FN 13.1 Establishment 134 13.2 Purpose 134 13.3 Definitions 134 13.4 Permitted Uses 135 13.5 Standards and Restrictions 135 13.6 Bonuses 136 13.7 Approval 137 Section 14 INDEPENDENT ELDERLY HOUSING 138-139 14.1 Establishment 138 14.2 Purpose 138 14.3 Definition 138 14.4 Permitted Uses 138 14.5 Standards and Restrictions 138 14.6 Density Bonus 139 Section 15 PLANNED COMMERCIAL DEVELOPMENT DISTRICT 140-142 (2004/45) 15.1 Objectives 140 15.2 Permitted Uses 140 15.2.1 Principal Uses 140 15.2.2 Accessory Uses 140 15.3 Dimensional Regulations 140 15.4 Special Permit Granting Authority 141 15.4.1 Procedures 141-142 15.5 Relation to Subdivision Control Act 142 Section 16 CORRIDOR DEVELOPMENT DISTRICT 143-149 16.1 Objectives 143 16.2 Corridor Development District 1 (CDDI)-Permitted uses 143 16.3 Corridor Development District 2(CDD2)-Permitted Uses 143 16.4 Corridor Development District 3(CDD3)-Permitted uses 144 16.5 Uses Subject to a Special Permit 145 16.6 Design Standards 145-146 16.7 Screening and Landscaping Requirements 147 16.8 Lighting and Signs 147 16.9 Submission of a Special Permit Application& 148 Plan Procedures 16.10 Parking Requirements 148 16.11 Change of Use Subsequent to Granting of Special Permit 148 16.12 Use of Existing Structure on Existing Lot 148 16.13 Dimension and Density Requirements 149 16.13.1 Corridor Development District 1 149 16.13.2 Corridor Development District 2 149 16.13.3 Corridor Development District 3 149 Section 17.0 OSGOOD SMART GROWTH OVERLAY DISTRICT(OSGOD) 150-182 17.1 Purpose 150 17.2 Definitions 150-154 17.3 Overlay District 154 17.3.1 Establishment 154 17.3.2 Underlying Zoning 154 FN 17.3.3 Subdistricts 154 17.4 Administration,Enforcement,and Appeals 155 17.5 Applicability of OSGOD 155 17.6 Permitted Uses 155 17.6.1 Residential Mixed-Use Zone 155 17.6.1.1 Purpose 156 17.6.1.2 As-Of-Right Uses 156 17.6.1.3 Uses Allowed By Special Permit 156 17.6.1.4 Total Gross Floor Area 156 17.6.2 Mixed-Use Development Zone 157 17.6.2.1 Purpose 157 17.6.2.2 As-Of-Right Uses 157 17.6.2.3 Uses Allowed By Special Permit 158 17.6.3 Business Opportunity Zone 158 17.6.3.1 Purpose 158 17.6.3.2 As-Of-Right Uses 158 17.6.3.3 Uses Allowed By Special Permit 159 17.6.4 Prohibited Uses 159 17.6.5 Criteria for Special Permit&Other Applicable Approval by Planning Board Authority thru 17.6.59 159-161 17.7 Project Phasing 161 17.8 Housing and Housing Affordability 161 17.8.1 Marketing Plan 161 17.8.2 Number of Affordable Housing Units 161 17.8.3 Requirements 161 17.8.4 Design and Construction 162 17.8.5 Affordable Housing Restriction 162 17.8.6 Administering Agency 163 17.8.7 Housing Marketing and Selection Plan 164 17.8.8 Age Restriction 164 17.8.9 Twenty Percent Requirement 164 17.8.10 Phasing 164 17.8.11 Computation 164 17.8.12 No Waiver 165 17.9 Dimensional and Density Requirements 165 17.9.1 Interpretation of Table 165 17.10 Parking Requirements 166 17.10.1 Interpretation of Table 166 17.11 General Design Standards 167 17.11.1 Intent 167 17.11.2 Building and Structure Placement 167 17.11.3 Open Space 168 17.11.4 Building Massing/Articulation 168 17.11.5 Building Appearance and Treatment 168 17.11.6 Development Environment 169 17.11.7 Landscaping 169-171 17.11.8 Lighting 171 17.11.9 Parking Lot Landscaping 171 17.11.10 Pedestrian Amenities and Recreation 172 17.11.11 Utilities—Basic Requirements 172 17.11.12 Signage Associated with the Residential Use Component 173 17.11.13 Signage Associated with the Non-Residential and Mixed-Use Component 174 17.11.14 Roadways 175 17.11.15 Storm Drainage 176 FN 17.11.16 Water Facilities 177 17.11.17 Sewer 177-178 17.11.18 Electric and Communication Lines 178 17.11.19 Street Signs 178 17.11.20 Monuments 178 17.11.21 Sub zone Design Standards 178-179 17.12 Application for Plan Approval 179 17.12.1 Preapplication 179 17.12.2 Application Submission 179 17.12.3 Required Submittals 180 7.13 Filing 180 17.13.2 Circulation to Other Boards 180 17.13.3 Hearing 180 17.13.4 Peer Review 180 17.14 Decision 181 17.14.1 Waivers 181 17.14.2 Plan Review 181 17.14.3 Plan Approval 181 17.14.4 Plan Disapproval 181 17.14.5 Form of Decision 181-182 17.15 Change I Plans after Approval by PAA 182 17.15.1 Minor Change 182 17.15.2 Major Change 182 17.16 Severability and Authority 182 Footnotes from Table II Graphics from Section 8.4.4 Table 1 SUMMARY OF USE REGULATIONS TBL 1 Table H SUMMARY OF DIMENSIONAL REQUIREMENTS TBL 2 FN TABLE OF REVISIONS REVISED ZONING BYLAWS OF THE TOWN OF NORTH ANDOVER,MASSACHUSETTS Town Meeting Date/Article Zoning Bylaw Number Section Brief Title 1985/12 4.135(4) Lake Cochichewick Amendment 1985/13 4.135(2)(a) Watershed District 1985/15 2.65 SPGA Definition Amendment 1985/20 4.11 (5) General Provisions 1985/21 2.29.1 Day Care Center 1985/23 All Districts Day Care Center 1985/24 7.4.1 Lot Width 1985/25 2.30.1 Definition of Driveway 1986/13 4.2 Established Phased Development 1986/15 10.13 Penalty of Violation 1986/16 7.1 CBA Requirements 1986/17 4.121 (a)(b) Public/Private Education 1986/18 All Districts Municipal Buildings 1986/100 4.121(6)(a,d,e) Sale of Ag.Products 1987/8 Table 2 R-1 Dist.Lot Area 1987/10 8.5 Established PRD 1987/11,28 8.3(l) Standards for Site Plan 4.123 Established VR District 1987/12 8.4 Established Landscape 8.1(13) Standard Parking in VR 4.128 Established VC District 1987/14 Table 1 Deleted"HELISTOP" 1987/16 3.4 Established Historic District 1987/20 2.38.1 Def.Floor Area,Gross 1987/21 2.38.2 Def.Floor Area,Net 1987/22 2.27.1 Def.Family Suite 1987/23 2.34 Amend Def.Two Family Dwelling 1987/24 4.122 Two Family Dwelling in R-4 District 1987/25 4.131(3) Retail Use-Industrial 1987/26 8.1 (2) Off Street Parking 1987/27 8.1 (2) Off Street Parking Table 1987/28 8.3 Site Plan Review Criteria 1987/29 4.135(4)(a) Watershed District 1987/83 8.6 Standards: Satellite 1988/2 13.0 Est.Continuing Care Retirement Center CCRC 1988/28 14.0 Established Independent Elderly Housing 1988/29 2.29,4.122 Established Congregate Housing 1988/30 2.65 Def.Nursing/Convalescent Home 1988/35 4.135 Watershed Protection District 1988/37 8.1 Amend Off Street Parking 1988/38 8.3 Amend Site Plan Review FN 1988/39 8.5 Amend PRD 1989/32 2.22 Amend Auto Repair Shop 2.27 Amend Building Height 2.30.1 Amend Driveway 2.38.3 Add Floor Area Ratio 2.40 Amend Home Occupation 2.43 Amend Lot 2.52 Amend No Cut Zone 2.61.1 Add Principal Structure 1989/33 7.8(3) Amend Exceptions 7.8 (4) Established 1989/43 4.125 Established R-6 District Table 2 Established R-6 District 1990/32 Beg.with Amend to Conform with State 4.121.6(b)(c) 1990/33 Beg.with Place in Order 4.125 1990/34 2.39.1 Add Hazardous Material(s) 1991/1 (STM) 10.14 Add Associate Member Planning Board 1991/2(STM) 4.136 Replaced Watershed Protection District 1991/3(STM) Table 2 Amend VC District Add Footnote 17 1991/4(STM) 8.4(6) Add to(6)VC Screening 1991/5(STM) 8.1 Amend(13)VC Parking 1992/52 4.125.21 Add SPGA,Planning Board 4.125 Add Para.5-Uses Allowed by Special 4.126 Permit 1992/56 4.133.6 Add-Special Permit&SPGA 1993/33 8.5(6)D Amend Buffer Zone 1993/34 4.132(11) Deleted-Helistop 1993/35 4.133 (11) Deleted-Helistop 1993/36 4.122(6)b Amend to Conform with State 1993/37 4.137 Amend Flood Plain District 1994/36 8.34& Add Building Elevation Table 1 &Table2 1994/37 2.65 Add Watershed Protection District 1994/38 4.136(7) Deleted Para.2(c)and Amend(d) 1994/39 7.2.1 Add 7.2.1 Access 1994/40 8.5 Amend 1(c);Sec.4; Sec.6(g) 1994/1 (STM) 4.136 Amend Watershed Protection District 1995/38 4.136 Amend Watershed Protection District 1995/41 7.0 Amend Dimensional Requirements 1995/43 9.0 Amend Non-Conforming Uses 1995/44 6.0 Amend Sign By-law 1995/15(STM) 4.133(23) Add Hotels to I-2 1996/6 8.7 Established Growth Management 1996/19 2.41 Amend Def.of Hotel/Motel 1996/20 8.3 Amend Site Plan Review 1996/21 6.0 Amend Signs and Sign Light 1996/22 8.8 Established Adult Use Zone 1997/29 Table 2 Village Residential 1997/30 8.1 Off street parking 1998/24 4.2 Phased Development 1998/25 4.136(5) Watershed Protection District 1998/30 6.61) Signs&Outdoor lighting FN 1998/31 6.61) Signs 1998/32 10.4 Variances&Appeals 1998/36 8.9 Wireless Telecommunications 1998/37 2.65 Special Permit Granting Authority 1998/42 8.3 Site Plan Review 1999/18 4.133.6 Industrial 2 District 1999/20 2.27 Building Height 2000/17 4.136(8) Est.Watershed Waiver 2000/30 7.1.2 Amend Lot Width 2000/21 8.9(3) Amend setbacks 2001/27 8.8(2) Amend location 2001/29 8.7 Extend expiration 2001/30 8.10 Lot/Slope Requirements 2002/12 10.4 Variance and Appeals 2002/13 6.6 Temporary Signs 2002/31 8.7 Growth Management 2002/32 9.3 Non-conforming uses 2004/38 4.2 Amend Phased Development 2004/39 8.7 Delete Growth Management 2004/40 4.122.14 Amend R4 District 2004/41 9.3 Amend Non-Conforming Uses 2004/42 4.3 Add Residential Adaptive Re-Use SP 2004/43 4.137 Amend Flood Plain District 2004/45 15 Add Planned Com.Development District 2004/46 3.1 & Add PCD district&Amend Tables 1 &2 2005/43 4.2 Amend Section 1 Intent&Purpose& Section 9 Expiration 2005/44 8.8.7 Application information,ad Section e 2005/46 6.6132&6.6.G1 Sign bylaw 2005/47 4.133 Recreational uses 2005/48 8.5.6.G PRD/Calculation of Allowable Residential 2006/4 2.30 Def.of a Drive-through facility 2006/5 16 Creation of new zoning district CDD 1 2006/6 16 Creation of new zoning district CDD2 2006/38 4.122(14)(B)(b) Demolition of residential homes and construction of new multi-family residences in R4 2006/41 4.136 Modify uses within Non-Disturbance Zone 2007/27 17.0 Creation of new zoning overlay district Osgood Smart Growth Overlay District 2007/30 Amend Zoning Map-200&220 Sutton Street from I-S to B-2. 2007/36 7.4(5) Amend Dimensional Requirements 2007/37 8.5.6(F) Amend Useable Open Space 2008/35 4.122(22) Amend Residential 4 to add Family Suite 2008/36 6.3,6.6(B) Amend Signs and Sign Lighting Regulations 2008/37 16 Creation of new zoning district CDD3 2008/39 8.1,8.4 Amend Off-Street Parking and Screening and Landscaping Requirements for Off- Street Parking 2008/40 4.2 Amend Phased Development Bylaw 2008/42 2.68 Definition of Structure FN 2008/43 4.126,4.127 Amend Retail Establishments FN The Town of North Andover Zoning Bylaw,together with the Zoning Map,adopted at the Annual Town Meeting of March 13,1943. Approved by the Attorney General on April 13,1943,posted May 1,1943. 1945- Special Town Meeting May 28, 1945 (Articles 1 and 2). Approved by the Attorney General February 13, 1946. 1946- Special Town Meeting December 23, 1946(Articles 1 and 2). Approved by the Attorney General February 5, 1947. 1947- Annual Town Meeting(Article 46). Approved by the Attorney General March 28, 1947. Special Town Meeting June 16, 1947(Article 1). Approved by the Attorney General November 21, 1947. Special Town Meeting June 20, 1947(Article 1). Approved by the Attorney General June 25, 1947. 1949- Annual Town Meeting(Article 1). Approved by the Attorney General June 3, 1949. 1950- Annual Town Meeting(Article 32). Approved by the Attorney General February 9, 1951. Special Town Meeting August 28, 1950(Article4). Approved the Attorney General January 29, 1951. 1952- Annual Town Meeting(Article 40). Approved by the Attorney General April 16, 1952. 1953- Annual Town Meering(Article 58). Approved by the Attorney General April 22, 1953. The Town of North Andover Zoning Bylaw adopted at the Special Town Meeting of June 30, 1956(Article 1). Approved by the Attorney General December 6, 1956,posted January 9, 1957. Thereafter AMENDED: 1957 - Annual Town Meeting (Articles 11, 12, 14, 15, 16, 17, 20 and 22). Approved by the Attorney General June 28, 1957,posted July 12, 1957. Special Town Meeting,October 7, 1957(Articles 7,8, 10, 11, 12, 13, 14,and 15). Approved by the Attorney General on October 19, 1957,posted November 29, 1957. 1958- Annual Town Meeting(Articles 11, 12 and 13). Approved by the Attorney General on April 28, 1958,posted May 15, 1958. 1959- Annual Town Meeting(Articles 62,63,64 and 65). Approved by the Attorney General March 31, 1959, posted April 15, 1959. Special Town Meeting,June 22, 1959(Article 5). Approved by the Attorney General July 16, 1959,published July 21,22 and 23 1960. 1960- Annual Town Meeting(Articles 79,80,81,82,83 and 85). Approved by the Attorney General May 2, 1960,posted May 10, 1960. Special Town Meeting(Articles 79, 80, 81, 82, 83,and 85). Approved by the Attorney General May 2, 1960, posted May 10,1960. 1961 - Annual Town Meeting(Article 64). Approved by the Attorney General April 10, 1961,posted April 13, 1961. 1962- Special Town Meeting,May 14, 1962(Article 7). Approved by the Attorney General July 12, 1962, posted July 12, 1962. 1963- Annual Town Meeting(Articles 24,25,26,28,29,86,87,88,89,90 and 91). Approved by the Attorney General June 6, 1963,posted June 11, 1963. FN 1964- Annual Town Meeting(Articles 53 and 54). Approved by the Attorney General April 9, 1964,posted April 16,1964. 1965- Annual Town Meeting(Articles 28A,28B,28C,85 and 87). Approved by the Attorney General,April 30, 1965,posted May 4, 1965. Special Town Meeting,November 8, 1965(Article2). Approved by the Attorney General November 23, 1965,posted December 1, 1965. 1966- Annual Town Meeting(Article 10, 11, 12, 13, 15, 16, 17, 18,and 19). Approved by the Attorney General April 6, 1966,posted April 11, 1966. 1967- Annual Town Meeting(Article 75 and 77). Approved by the Attorney General April 21, 1967,posted April 28, 1967. Special Town Meeting March 18, 1967(Article 10). Approved by the Attorney General April 21, 1967,posted April 28, 1967. Special Town Meeting,June 19, 1967(Article 1 and 2). Approved by the Attorney General July 11, 1967, posted July 14, 1967. 1968- Annual Town Meeting(Article 61). Approved by the Attorney General May 20, 1968,posted May 23, 1968. Special Town Meeting April 8, 1968,(Article 3). Approved by the Attorney General July 2, 1968,posted July 2, 1968. Special Town Meeting July 22, 1968 (Article 1). Approved by the Attorney General August 1, 1968, posted August 6, 1968. Special Town Meeting September 30, 1968 (Article 9). Approved by the Attorney General October 9, 1968, posted October 15, 1968. 1969- Special Town Meeting January 9, 1969 (Article 4). Approved by the Attorney General January 28, 1969, posted February 4, 1969. Annual Town Meeting March 3, 1969(Article 22 and 76). Approved by the Attorney General May 28, 1969, posted June 9, 1969. 1970- Annual Town Meeting(Article 32 and 33). Approve by the Attorney General May 12, 1970 posted June 5, 1970. Special Town Meeting August 24, 1970(Article 1). Approved by the Attorney General December 1, 1970, posted December 4, 1970. 1971- Annual Town Meeting(Article 68,69 and 72). Approved by the Attorney General April 22, 1971,posted April 26, 1971. 1972- Annual Town Meering(Articles 59,62 and 63). Approved by the Attorney General June 9, 1972,posted June 14, 1972. Town of North Andover Zoning Bylaw adopted at the Special Town Meeting of June 5, 1972(Article 11 A and 11B). Approved by the Attorney General on August 2, 1972,posted August 4, 1972. Thereafter AMENDED: FN 1972- Special Town Meeting,December 18, 1972(Articles 1 and 2). Approved by the Attorney General April 4, 1973,posted April 10, 1973. 1973- Annual Town Meeting(Article 11). Approved by the Attorney General May 5, 1973. Special Town Meeting June 25, 1973(Article 6 and 7). Approved by the Attorney General August 29, 1973, posted September 4, 1973. 1974- Annual Town Meeting(Article 13, 14, 15, 16, 17, 18, 19,20,21 and 22). Approved by the Attorney General May 21, 1974,posted May 28, 1974. 1975- Annual Town Meeting(Articles 29,30,48 and 49). Approved by the Attorney General July 7, 1975,posted July 10, 1975. Zoning Map amended to include I-3 District,description of which is on file with the Town Clerk. 1976- Annual Town Meeting(Articles 35,36 and 86). Approved by the Attorney General August 3, 1976, posted September 3, 1976. Special Town Meeting November 23, 1976(Article 9). Approved by the Attorney General December 12, 1976,posted,December 21, 1976. 1978- Annual Town Meeting(Article 68 and 70). Approved by the Attorney General August 30, 1978. Special Town Meeting June 26, 1978(Articles 4 and 6). Approved in accordance with M.G.L Ch.40,Sec.32, posted October 30, 1978. 1979- Annual Town Meeting(Articles 50,51 and 52). Approved by the Attorney General August 23, 1979. 1980- Annual Town Meeting(Articles 93,94 and 98)Approved by the Attorney General August 7, 1980. 1981- Annual Town Meeting(Articles 67,68,69,71,72,74,75,76 and 77). Approved by the Attorney General August 3, 1981,posted August 6, 1981. 1982-Annual Town Meeting(Article 80,81,82,83,84,85,88,89 and 93). Approved by the Attorney General July 27, 1982. 1983- Annual Town Meeting Articles(77,78,79,80,81,82,83,85,86,87,88,89,91,92,93,94,95,96,97,98, 99, 100, 101, 102, 103, 107, 109 and 110). Approved by the Attorney General May 24, 1983. Special Town Meeting October 27, 1983(Article 6). Approved by the Attorney General December 20, 1983. 1984- Annual Town Meeting(Article 92,94,96,97,98,99, 100, 101, 104 and 105). Approved by the Attorney General July 31, 1984. 1985- Annual Town Meeting(Articles 12, 13, 14, 15, 16, 17, 18,20,21,22,23,24,25 and 26). Approved by the Attorney General July 25, 1985. 1986- Annual Town Meeting(Articles 13, 15, 16, 17, 18, 100, 103, 104, 105 and 108). Approved by the Attorney General July 29, 1986,posted July 30, 1986. 1987- Annual Town Meeting(Articles 8,9, 10, 11, 14, 16,20,21,23,24,25,26,27,28,29,83,84,90 and 9) Approved by the Attorney General November 27, 1987. FN 1988- Annual Town Meeting(Article 27,28,29,30,35,37,38,39 and 48). Approved by the Attorney General July 28, 1988. 1989- Annual Town Meeting(Articles 32,33,38,39,40,41 and 44. Article 43 amended). Approved by the Attorney General July 28, 1989,posted August 1, 1989. 1990- Annual Town Meeting(Articles 32,33,34,35,36,37 and 41). Approved by the Attorney General August 24, 1990,posted August 28, 1990. 1991 - Special Town Meeting January 29, 1991 (Articles 1,2,3,4 and 5). Approved by the Attorney General March 14, 1991,posted March 15, 1991. 1992- Annual Town Meeting May 4, 1992(Articles 50,51,52 and 56). Approved by the Attorney General August 5,1992,posted August 10, 1992. 1993- Annual Town Meeting May 3, 1993(Articles 33,34,35,36,37,38,39 and 66). Approved by the Attorney General August 27, 1993,posted August 30, 1993. 1994- Annual Town Meeting May 2, 1994(Articles22,36,37,38,39 and 40). Approved by the Attorney General September 16, 1994,posted September 19, 1994. Special Town Meeting October 24, 1994(Article 1). Approved by the Attorney General February2l, 1995;posted February 22, 1995. 1995- Annual Town Meeting May 1, 1995(Articles 38,41,43 and 44). Approved by the Attorney General September 21, 1995,posted. Special Town Meeting November 4, 1995(Article 15). Approved by the Attorney General December 6, 1995. Posted December 11, 1995. 1996- Annual Town Meeting May 6, 1996(Articles 6, 19,20,21,22). Approved by the Attorney General September 27, 1996. Posted September 30, 1996. 1997- Annual Town Meeting May 13,1997(Articles 29,30). Approved by the Attorney General August 13, 1997. Posted August 18, 1997. 1998- Annual Town Meeting May 11, 1998(Articles 24,25,30,31,32,36). Approved by the Attorney General October 20, 1998.Posted October 29, 1998. 1999- Annual Town Meeting May 3, 1999(Articles 18,20)(zoning map 31,33 and 34). Approved by the Attorney General July 30, 1999. Posted August 2, 1999. 2000- Annual Town Meeting May 13,2000(Articles 17,30)(Zoning map 29,31).Approved by the Attorney General October 12,2000. Posted October 25,2000. 2001 - Annual Town Meeting May 14,2001 (Articles 27,29&30)Approved by the Attorney General September 18, 2001 Annual Town Meeting December 3,2001-No new changes 2002- Annual Town Meeting May 28,2002(Articles 31,33&34)Approved by the Office of the Attorney General September 18,2002 Annual Town Meeting December 9,2002(Articles 12, 13&32)Approved by the Office of the Attorney General February 24,2003 2003-Special Town Meeting November 17,2003(Article 17)Approved by the Office of the Attorney General January 22,2004. FN 2004- Annual Town Meeting May 10,2004(Articles 38, 39, 40, 41, 42, 43,45 &46)Approved by the Office of the Attorney General on August 24, 2004. 2005 - Annual Town Meeting May 9, 2005 (Articles 43, 44, 46, 47, & 48) Approved by the Attorney General on August 29,2005. 2006- Annual Town Meeting May 8, June 5 &6,2006 (Articles 4, 5, 6, 38, 41)Approved by the Attorney General on October 16,2006. 2007 Annual Town Meeting May 2007, (Article 27, approved by Atty. General October 2, 2007);(Article 28, voted June 4, 2007); (Article 29,voted June 4,2007), (Article 30, approved by Atty. General on October 2, 2007). (Article 36, approved by Atty. General October 2,2007); (Article 37, approved by Atty. General October 2,2007). 2008 Annual Town Meeting May 13,2008, (Article 38, approved by Atty. General on September 17, 2008); (Article 35, approved by Atty. General on September 17, 2008); (Article 36, approved by Atty. General on September 17,2008); (Article 38, approved by Attorney General on September 17, 2008); (Article 39, approved by Atty. General on September 17, 2008); (Article 40, approved by Atty. General on September 17, 2008); (Article 42, approved by Atty. General on September 17, 2008); (Article 43, approved by Atty. General on September 17, 2008); (Article 44, approved by Atty. General on September 17, 2008). FN SECTION 1 PURPOSES 10/19/2005 The purpose of this Bylaw is the promotion of the health, safety, convenience,morals and welfare of the inhabitants of the Town of North Andover, as provided by Chapter 40-A of the General Laws of the Commonwealth of Massachusetts, as amended by Chapter 808,Acts of 1975, and as they may be further amended,by regulating and restricting the use of land and buildings,thereby: 1. encouraging the most appropriate use of land; 2. preventing overcrowding of land; 3. conserving the value of land and buildings; 4. lessening congestion of traffic; 5. preventing undue concentration of population; 6. providing adequate light and air; 7. reducing the hazards from fire and other danger; 8. assisting in the economical provision of transportation,water, sewerage, schools,parks and other public facilities; 9. controlling the use of bodies of water, including watercourses; 10. reducing the probability of losses resulting from floods; and 11. reserving and increasing the amenities of the Town. FN SECTION 2 DEFINITIONS 2.1 General For the purpose of this Bylaw, certain words or phrases herein shall be interpreted as follows, except where the context clearly indicates the contrary: words used in the singular include the plural,words used in the present tense include the future tense,the word"person" includes a corporation as well as an individual,the word"lot"includes the word"plot"or"parcel", the word"shall"is always mandatory and the word"used"or"occupied"as applied to any land or buildings shall be construed to include the words "intended, arranged or designed to be used or occupied". 2.2 Specific Words and Phrases For the purpose of this Bylaw, the following words and terms used herein shall have the meanings or limitations of meaning hereby defined, explained or assigned. 2.21 Accessory Use or Structure A use or structure subordinate to the principal use of a building on the same lot and serving a purpose customarily incidental to the use of the principal building. 2.21.1 Adult Bookstore An establishment having as a substantial or significant portion of its stock in trade,books,magazines, and other materials which are distinguished or characterized by their emphasis depicting, describing, or relating to sexual conduct or sexual excitement as defined in MGL Ch. 272, Sec. 31. (1996/22) (2003/17) 2.21.2 Adult Cabaret A nightclub,bar,restaurant,tavern, dance hall, or similar commercial establishment which regularly features persons or entertainers who appear in the state of nudity, or live performances which are distinguished or characterized by nudity, sexual conduct or sexual excitement as defined in MGL Ch. 272, Sec. 31. (1996/22) (2003/17) 2.21.3 Adult Motion Picture Theater An enclosed building or any portion thereof used for presenting material (motion picture films,video cassettes, cable television, slides or any other visual media) distinguished by an emphasis on material depicting, describing or relating to sexual conduct or sexual excitement as defined in MGL Ch. 272, Sec. 31. (1996/22) (2003/17) 2.21.4 Adult Paraphernalia Store An establishment having as a substantial or significant portion of its stock devices, objects,tools,toys, which are distinguished or characterized by their association with sexual activity, including sexual conduct or sexual excitement as defined in MGL Ch. 272, Sec. 31. (1996/22) (2003/17) 2.21.5 Adult Video Store An establishment having as a substantial or significant portion of its stock in trade for sale or rent motion picture films,video cassettes and similar audio/visual media which are distinguished or characterized by their emphasis depicting, describing, or relating to sexual conduct or sexual excitement as defined in MGL Ch. 272, Sec. 31. (1996/22) (2003/17) 2.21.6 Adult Use Adult Bookstores, Adult Cabarets,Adult Motion Picture Theaters, Adult Paraphernalia Stores and Adult Video Stores as defined in this Bylaw. (1996/22) (2003/17) FN 2.22 Automobile Repair Shop (1989/32) A building or part of a building in which repairs are made to motor vehicles. 2.23 Automobile Service Station A building or place of business where gasoline, oil, and greases,batteries, tires, and automobile accessories are supplied and dispensed directly to the motor vehicle trade, at retail and where minor repair service is rendered. 2.24 Body Shop A building, or part thereof,used for structural repairs and refinishing of motor vehicles for remuneration. 2.25 Board of Appeals The Board of Appeals of the Town of North Andover as governed by the General Laws of Massachusetts. 2.26 Building A structure having a roof supported b y columns or walls for the shelter, support, or enclosure of persons, animals, or property. 2.26.1 Building Coverage (1989/32) The horizontal area measured within the outside of the exterior walls of the ground floor for all principal and accessory buildings on a lot. 2.27 Building Height (1999/20) The vertical distance as measured from the average finished grade level adjoining the building at all exterior walls to the highest roof surface,but shall not include chimneys, spires or mechanical equipment or penthouses used for enclosures of mechanical equipment. 2.28 Building,Principal A building in which is conducted main or principal use of the lot on which said building is situated. 2.29 Car Wash An area of land and/or a structure with machine or hand operated facilities used principally for the cleaning, washing,polishing or waxing of motor vehicles. 2.29.1 Congregate Housing A non-institutional residential shared living environment, which integrates, shelter, and services needed by the functionally impaired or socially isolated elder (age 55 or older)who does not require the constant supervision or intensive health care services provided in an institution. The shared living environment must include at least two of the following: a) a shared accessible community space,b) shared kitchens, c) shared dining facilities, or d) shared bathing facilities. 2.29.2 Day Care Center (1985/21) Any facility operated on a regular basis whether known as a day nursery, nursery school, kindergarten, child play school,progressive school, child development center, or pre-school, or known under any other name which received children not of common parentage under seven(7)tears if age, or under sixteen(16) years of age if such children have special needs, or non-residential custody and care during part or all of the day separate from their parents or the elderly 60 years of age or older. Day Care Center shall not include any part of a public school system; any part of a private organized educational system unless the services of such system are primarily limited to kindergarten, nursery or related pre-school services; a Sunday school conducted by a religious organization where children are cared for during short periods of FN time while persons responsible for such children are attending religious services; a family day care home; an informal cooperative arrangement among neighbors or relatives; or the occasional care of children with or without compensation thereof. 2.3 District A district or zone shall be any portion of the territory of the Town of North Andover within which certain uniform regulations and requirements or various combinations thereof shall be applied under the provisions of this Bylaw. 2.30 A Drive-through Facility(2006/4) A facility that provides for the convenience of drive through windows which allow for transactions of goods and/or services to be carried out without the customer having to leave his/her motor vehicle. The proportion of drive through business to the total business volume of the applicable business establishment is not relevant to the determination of whether that business establishment contains a drive through facility. 2.30.1 Driveway (1989/32) A way located on a lot,which provides vehicular access to the buildings on the lot. Each driveway shall service no more than one lot. Subject to the granting of a Special Permit from the Planning Board, a driveway may be shared by not more than two (2)lots. Each such shared driveway must be regulated by a recorded maintenance agreement running in perpetuity with the land. 2.31 Dwelling Any building or portion thereof designed or used as the residence or sleeping place of one or more persons, except a mobile home and a otherwise provided herein. 2.32 Dwelling,Multi-Family A building used or designed as a residence for three or more families living independently of each other and doing their own cooking therein(same as"apartment"). 2.33 Dwelling, One-Family A dwelling built single and apart from any other building and intended and designed to be occupied and used exclusively for residential purposes by one family. 2.34 Dwelling,Two-Family A freestanding building intended and designed to be occupied and used exclusively for residential purposes by each of not more than two families(same as"duplex"). The principal building in a two family dwelling conversion shall share a connected common wall(or floor) for at least 75% of the walls (or floor's) surface. No unheated structure,no structure without foundation and no structure,which is entirely or partially a garage shall be considered as meeting the 75%requirement. 2.35 Dwelling Unit One or more rooms, including cooking facilities and sanitary facilities in a dwelling structure, designed as a unit for occupancy by not more than one family for living and sleeping purposes. 2.36 Erected The word"erected" shall include the words "built", "constructed", "reconstructed", "altered", "enlarged" and"moved". FN 2.37 Family One or more persons occupying the same premises and living as a single housekeeping unit as distinguished from a group occupying a boarding house, lodging house, club, fraternity or hotel. 2.37.1 Family Suite (1987/22) A separate dwelling unit located within a single family dwelling subordinate in size to the principal unit and separated from it in a manner,which maintains the appearance of the building as a single-family dwelling. The size of the family suite is not to exceed 1200 square feet or not more than 25% of the gross floor area of the principal unit,whichever is lesser. The family suite may only be occupied by brothers, sisters,maternal parents and grandparents, in-laws and or children of the residing owners of the principal dwelling unit. In no case shall an apartment be smaller than the minimum required by health and building codes. 2.38 Frontage The continuous distance between lot sidelines measured along the street line. 2.38.1 Floor Area, Gross (1987/20) Gross floor area shall be the floor area within the perimeter of the outside walls of the building without deduction for hallways, stairs, closets,thickness of walls, columns or other features. 2.38.2 Floor Area,Net (1987/21) Net floor area shall be actual occupied area(s)not to include hallways, stairs, closets,thickness of walls, column or other features,which are not occupied areas. 2.38.3 Floor Area,Ratio (1989/32) The ratio of the floor area to the lot area, as determined by dividing the gross floor area by the lot area. 2.39 Guest House A dwelling in which overnight accommodations are provided or offered for transient guests for compensation. The term"guest house" shall be deemed to include tourist home,but not hotel,motel or multi-family dwelling. 2.39.1 Hazardous Material(s) (1990/34) Any chemical or mixture of such physical, chemical, or infectious characteristics as to pose a significant, actual or potential,hazard to water supplies, or other hazard to human health, if such substance or mixture were discharged to land in waters of the Town, including but not limited to organic chemicals,petroleum products,heavy metals,radioactive or infectious wastes, acids, and alkalis, and all substances defined as Toxic or Hazardous under M.G.L. Chapter 2 1 C and 2 1 E and those chemicals on the list in Committee Print Number 99-169 of the Senate Committee on Environment and Public Works,titled"Toxic Chemicals" Subject to Section 313 of the Emergency Planning Community Right-to-Know Act of 1986: (including any revised version of the list as may be made pursuant to subsection(d) or(e). 2.40 Home Occupation (1989/32) An accessory use conducted within a dwelling by a resident who resides in the dwelling as his principal address,which is clearly secondary to the use of the building for living purposes. Home occupations shall include,but not limited to the following uses;personal services such as furnished by and artist or instructor but not occupation involved with motor vehicle repairs,beauty parlors, animal kennels, or the conduct of retail business, or the manufacturing of goods, which impacts the residential nature of the neighborhood. FN 2.41 Hotel or Motel A building intended and designed primarily for transient or overnight occupancy divided into separate units within the same building or buildings. (1996/19) 2.41.1 Independently Elderly Housing A multi-family residential structure each with separate access and restricted to individuals or couples at least 55 years of age or older. This definition shall not be constructed to prevent mentally or physically impaired people from living with an occupant or occupants of an independent elderly housing unit. 2.42 Loading Bay An opening in a building not less than ten feet in width and nine feet in height including a platform for loading and unloading goods, merchandise or other materials. 2.43 Lot (1989/32) An area of land in single or consolidated ownership which contains definite boundaries and ascertainable by a recorded deed in the Essex County Registry of Deeds Office. 2.44 Lot, Corner A lot abutting upon two (2) or more streets at their intersection. 2.45 Lot Lines The property lines bounding the lot. 2.46 Lot Line,Front The line separating the lot from a street. 2.47 Lot Line,Rear The lot line opposite and most distant from the front lot line. 2.48 Lot Line Side Any lot line other than a front or rear lot line. 2.49 Lot Line, Street Any lot line separating the lot from a street or alley (usually the front lot line). 2.50 Mean High Water Mark (Lake Cochichewick) an elevation of 113.67 on the United States Coast and Geodetic Survey datum. 2.51 Medical Center A building or group of buildings designed for the individual or group practice of medicine or dentistry, but not including hospitals or nursing homes. 2.52 No Cut Zone (1989/32) An area which is left in its natural condition,which shall not be disturbed by any means which includes but not limited to the cutting of trees or under story. 2.53 Non-Conforming Use A building, structure or use legally existing and/or used at the time of adoption of this Bylaw, or any amendment thereto, and which does not conform with the use regulations of the district in which located. FN 2.54 Office,Business A primary use consisting of office activities of any type, including business and financial office activities (including banks and financial institutions) and professional office activities. 2.55 Office,Professional A primary use consisting of office activities by a doctor, dentist, architect, lawyer, engineer or other professional person or persons. 2.56 Parking Area,Private An open area for the same uses as a private parking garage. 2.57 Parking Garage,Private A structure used for parking of automobiles and available to employees, clients or customers whether for a fee or free. 2.58 Parking Garage,Public Any parking garage, other than a private parking garage, which is open to the public and use for the storage of motor vehicles. 2.59 Personal Service Establishment An establishment providing personal services to the public such as shoe repair,barbering, dry cleaning, etc. 2.60 Place of Worship A church, temple, synagogue,mosque, or other similar place of worship, including parish house,rectory, or convent. 2.61 Planning Board The Planning Board of the Town of North Andover as governed by the General Laws of Massachusetts 2.61.1 Principal Structure (1989/32) The structure on a lot of record, which contains the primary use of the lot. A principal use shall not be contained within an accessory structure as defined in the Bylaw. 2.62 Public Building Use A building or use owned or operated by a local, county, state or federal government agency. 2.63 Rooming House Any building or portion thereof containing more than two and less than ten rooms without kitchen facilities that are used,rented or hired out to be occupied for sleeping purposes for compensation,whether the compensation be paid directly or indirectly. 2.64 Special Permit The words Special Permit where used in this Bylaw shall mean a permit granted under the guidelines of Section 9 of Chapter 40-A of the General Law. 2.65 Special Permit Granting Authority The Planning Board shall be the granting authority of all Special Permits to Cluster Development, Planned Development District, (1985/15) driveways,nursing and convalescent homes,Watershed Protection District (1994/37), Wireless Service Facilities (1998/37) and large estate condominium FN conversions. The Board of Selectmen shall be the granting authority of all Special Permits pertaining to non-accessory signs as specified in Section 6.52 of this Bylaw. The Board of Appeals shall be the granting authority of all other Special Permits allowed in this Zoning Bylaw. 2.66 Special Permit Use A use of a building or lot or an action upon premises which may be permitted under this Bylaw only upon application to the appropriate Special Permit Granting Authority for a Special Permit and subject to the approval of such Permit Granting Authority and the conditions stipulated. 2.67 Street A public way or a private way open to travel by the general public, or a way shown on a plan of a subdivision theretofore duly approved by the Planning Board. 2.68 Structure A combination of materials assembled at a location to give support or shelter that is safe and stable,which includes,but is not limited to the following: buildings, stadiums, tents, reviewing stands platforms, staging, observation towers,radio towers, water tanks,towers,private and public swimming pools, trestles,piers and wharves,bridges, sheds, shelters, fences and walls, display signs, and storage trailers or units,whether intended for permanent or temporary purposes, used for storage of goods and products associated with the operations of any business on the subject parcel(s), and remain in any relatively fixed location. The term structure shall be construed as if followed by the words"or part thereof',but shall not include underground utilities, driveways,parking lots, agricultural storage trailers and vehicles, and the like. Where the North Andover General and Zoning Bylaws are silent, then the current edition of the Massachusetts Building Code shall be assumed to apply. 2.68.a Structure—Temporary Structures that are permitted within a zoning district without any foundation or footing and that are removed or dismantled when the designated time period, activity, or use for which the structure was approved and erected has ceased. Said structure shall be permitted for duration of time not to exceed sixty (60)days unless otherwise specifically approved by the Building Inspector. For purposes of this definition,motor and recreational vehicles shall not be consider under this definition. 2.69 Town House An attached house in a row of three or more such houses capable of being sold as an independent dwelling with its own lot, as provided by this Bylaw. 2.70 Tributary Any portion of any brook, stream,bog, swamp, or pond,which flows into Lake Cochichewick. 2.71 Yard (Setback) An open space which lies between the principal building or group of buildings and a lot line. 2.72 Yard,Front (Setback) An open space extending across the entire width of a lot between any building thereon and the street lot line of the lot on which such building stands. 2.73 Yard,Rear (Setback) An open space extending across the entire width of a lot between the rear of any building thereon and the rear lot line of the lot on which such building stands. FN 2.74 Yard, Side (Setback) An open space between the side line of a lot and the adjacent side of any building thereon, such open space being understood to cover the entire extent between the front yard and the rear yard of such a lot. 2.75 (1985/25) See 2.30.1 2.76 Planned Development District 1. Planned Development District—A Planned Development District shall mean development of an area of land as a single entity,which lies in an Industrial S (I-S) District, in which a mixture of residential, open space, commercial, and/or industrial uses, and a variety of building types and designs are determined to be sufficiently advantageous to render it appropriate to grant a Special Permit to depart from the normal requirements of the district in which the PDD is to be located,to the extent authorized by this Zoning Bylaw. 2. Usable Open Space—The part or parts of land or structure within the PDD which are reserved for active or passive recreation use. This space shall exclude parking areas, driveways, and walkways and open areas in commercial areas such a cafes and shall open and unobstructed to the sky. Trees,plantings, arbors, fences, sculpture, fountains, swimming pools, open-aired recreational facilities, laundry apparatus and similar objects shall not be considered obstructions. 2.77 Public Parking Area A parking area owned and maintained by the Town of North Andover. FN SECTION 3 ZONING DISTRICTS AND BOUNDARIES 3.1 Establishment of Districts The Town of North Andover is hereby divided into zoning districts designated as follows: Residence 1 District (R-1) Residence 2 District (R-2) Residence 3 District (R-3) Residence 4 District (R-4) Village Residential District (VR) Residence 5 District (R-5) Residence 6 District (R-6) Business 1 District (B-1) Business 2 District (B-2) Business 3 District (B-3) Business 4 District (B-4) Corridor Development District 1 (CDD 1) Corridor Development District 2 (CDD2) Corridor Development District 3 (CDD3) General Business District (G-B) Planned Commercial Development District (PCD) Village Commercial District (VC) Industrial 1 District (I-1) Industrial 2 District (I-2) Industrial 3 District (I-3) Industrial S District (I-S) Flood Hazard District Watershed Protection District 3.2 Zoning Map The zoning districts established by this Bylaw are bounded as shown on a map dated May 12, 1972, as the same may be adopted by the Town, and as it may hereafter be amended. Said map accompanies and is hereby made a part of this Bylaw. Any land area not designated upon said map as being within another zoning district shall be within the Residence 2-District. The Flood Plain District is defined as all areas so designated on maps entitled"Flood Insurance Rate Maps" (FIRM) and Flood Boundary and Floodway Map dated June 2, 1993 and as it may hereafter be amended, on file with the Town Clerk, incorporated by reference herein. 3.3 District Boundaries Where uncertainty exists as to the boundaries of any of the aforesaid districts as shown on the Zoning Map,the Building Inspector shall determine the location of such boundaries. In reaching any such determinations,the Building Inspector may properly rely upon the accuracy of the land area descriptions appearing in the Zoning Bylaw adopted by the Town in 1956, and as thereafter amended, insofar as any of them may be pertinent thereto. 3.4 Historic Districts (1987/16) Historic Districts established pursuant to the provisions of M.G.L. Chapter 40C, as may be from time to time amended, shall be indicated on the Zoning Map by appropriate symbol. FN SECTION 4 BUILDINGS AND USES PERNUTTED 4.1 District Use Regulations 4.1.1 General Provisions 1. In the zoning districts above specified, the following designated buildings and alterations and extensions thereof and buildings accessory thereto and the following designated uses of land, buildings, or part thereof and uses accessory thereto are permitted. All other buildings and uses are hereby expressly prohibited except uses which are similar in character to the permitted uses shall be treated as requiring a Special Permit(1985/26). 2. When a lot in one ownership is situated in part of the Town of North Andover and in part in an adjacent town or city, the provisions,regulations and restrictions of this Bylaw shall be applied to that portion of such lot as lies in the Town of North Andover in the same manner as if the entire lot were situated therein. 3. When a zoning district boundary divides a lot of record on June 5, 1972 in one ownership, all zoning regulations set forth in this Zoning Bylaw applying to the greater part by area of such lot so divided may,by Special Permit,be deemed to apply and govern at and beyond such zoning district boundary,but only to the extent not more than one hundred(100) linear feet in depth(at right angle to such boundary) into the lesser part by area of such lot so divided. 4. Accessory uses as defined herein, shall be on the same lot with the building of the owner or occupant, and shall be such as not to alter the character of the premises on which they are located nor impair the neighborhood. Where manufacturing of any kind is allowed as an accessory use, it shall be restricted to such light manufacturing as is incidental to a permitted use and where the product is customarily sold on the premises by the producer to the customer. 5. No private or public (1985/20)way giving access to a building or use or not permitted in a residential district shall be laid out or constructed so as to pass through a residential district. 4.12 Permitted Uses 4.121 Residence 1 District Residence 2 District Residence 3 District 1. One-family dwelling,but not to exceed one dwelling on any one lot. 2. Place of worship. 3. Rooming house, renting rooms for dwelling purposes or furnishing table board to not more than four(4)persons or members of the family resident in a dwelling so used,provided there be no display or advertising on such dwelling or its lot other than a name place or sign not to exceed six (6) inches by twenty-four(24) inches in size, and further provided that no dwelling shall be erected or altered primarily for such use. 4. For use of a dwelling in any residential district or multi-family district for a home occupation,the following conditions shall apply: a. Not more than a total of three(3)people may be employed in the home occupation, one of whom shall be the owner of the home occupation and residing in said dwelling. b. The use is carried on strictly within the principal building; c. There shall be no exterior alterations, accessory buildings, or display which are not customary with residential buildings; d. Not more than twenty five(25)percent of the existing gross floor area of the dwelling unit so used,not to exceed one thousand(1000) square feet, is devoted to such use. In connection with such use, there is to be kept no stock in trade, commodities or products which occupy space beyond these limits; e. There will be no display of goods or wares visible from the street; FN f. The building or premises occupied shall not be rendered objectionable or detrimental to the residential character of the neighborhood due to the exterior appearance, omission of odor, gas, smoke, dust, noise, disturbance, or in any other way become objectionable or detrimental to any residential use within the neighborhood; g. Any such building shall include no features of design not customarily in buildings for residential use. 5. Real estate signs not to exceed twenty-four(24)inches by thirty-six(36) inches in size which shall advertise only the rental, lease, sale of the premises upon which they are placed. 6. Agriculture,horticulture, floriculture,viticulture or silvaculture. (1986/100) a. On any lot of at least three(3)acres,the keeping of a total of not more than three(3) of any kind or assortment of animals or birds in addition to the household pets of a family living on such lot, and for each additional acre of lot size to five(5), the keeping of one additional animal or bird but not the keeping of animals,birds, or pets of persons not resident on such lot. (1993/36) b. On any lot of at least five(5) acres,the keeping of any number of animals or birds regardless of ownership and the operation of equestrian riding academies, stables, stud farms, and poultry batteries. c. The sale of products raised as a result of the above uses on the subject land. (1986/100) d. The sale of products of agriculture,horticulture, floriculture,viticulture or silvaculture as well as accessory or customary items,by any person who is primarily engaged in ay of the above activities. The operation must be on at least ten(10) contiguous acres used primarily for any of these activities. (1986/100) 7. Swimming pools in excess of two(2) feet deep shall be considered a structure and permitted provided they are enclosed by a suitable wall or fence at least four(4) feet in height to be determined by the Building Inspector to prevent the entrance of persons other than those residing at the pool location. Pools shall have a minimum ten(10) foot setback from side and rear lot lines and be located no nearer the street than the building line of the dwelling, except by Special Permit. 8. Museums. 9. a. Public and private non-profit educational facilities. (1986/17) b. Private for profit educational facilities by Special Permit. (1986/17) 10. Public building and public service corporations (Special Permit Required),but not including public works garages. 11. Golf Course. 12. Swimming and/or tennis clubs shall be permitted with a Special Permit. 13. Cemetery. 14.Nursing and convalescent home- see dimensional requirements of Table 2 (Special Permit Required). 15. Municipal recreational areas. 16. Any accessory use customarily incident to any of the above permitted uses,provided that such accessory use shall not be injurious,noxious, or offensive to the neighborhood. 17. Family Suite—a separate dwelling unit within or attached to a dwelling for a member of a household is allowable by Special Permit provided: a. The dwelling unit is not occupied by anyone except brothers, sisters,maternal and paternal parents and grandparents, or children of the residing owners of the dwelling unit; b. That the premises are inspected annually by the Building Inspector for conformance to this section of the Bylaw; c. The Special Permit shall be recorded at the North Essex Registry of Deeds. 18. Accessory buildings no larger than sixty—four(64) square feet shall have a minimum five (5) foot setback from side and rear lot lines and shall be located no nearer the street than the building line of the dwelling. FN 19. Day Care Center by Special Permit. (1985/23) 20. Independent Elderly Housing by Special Permit in Residence District 3 only. 4.122 Residence 4 District 1. One residential building per lot. 2. Place of Worship. 3. Renting rooms for dwelling purposes or furnishing table board to not more than four(4)persons not members of the family resident in a dwelling so used,provided there be no display or advertising on such dwelling or its lot other than a name plate or sign not to exceed six(6) inches by twenty-four(24) inches in size, and further provided that no dwelling shall be erected or altered primarily for such use. 4. For the use of a dwelling in any residential district or multi-family district for a home occupation, the following conditions shall apply: a. Not more than a total of three (3)people may be employed in the home occupation, one of whom shall be the owner of the home occupation, and residing said dwelling b. The use is carried on strictly within the principal building; c. There shall be no exterior alterations, accessory building, or display which are not customary with residential buildings; d. Not more than twenty-five (25)per cent of the existing gross floor area of the dwelling unit so used,not to exceed one thousand(1000) square feet, is devoted to such use. In connection with such use,there is to be kept no stock in trade, commodities or products which occupy space beyond these limits. e. There will be no display of goods or wares visible from the street; f. The building or premises occupied shall not be rendered objectionable or detrimental to the residential character of the neighborhood due to the exterior appearance, emission of odor, gas, smoke, dust,noise, disturbance, or any other way become objectionable or detrimental to any residential use within the neighborhood. g. Any such building shall include no feature of design not customary in buildings for residential use within the neighborhood. 5. Real estate signs not to exceed twenty-four(24) inches by thirty-six(36) inches in size which shall advertise only the rental, lease, or dale of the premises upon which they are placed. 6. a. Farming of field crops and row crops,truck gardens, orchards,plant nurseries, and greenhouses. b. On any lot of at least three(3) acres,the keeping of a total of not more than three(3) of any kind or assortment of animals or birds in addition to the household pets of a family living on such lot, and for each additional acre of lit six to five(5) acres, the keeping of one additional animal or bird; but not the keeping of any animals,birds or pets of persons not resident on such lot. c. On any lot of at least five(5) acres the keeping of any number of animals or birds regardless of ownership and the operation of equestrian riding academies, stables, stud farms, dairy farms, and poultry batteries. d. The sale of products raised as a result of the above uses on the subject land. 7. Swimming pools in excess of two (2) feet deep shall be considered a structure and permitted provided they are enclosed by a suitable wall or fence at least four(4) feet in height to be determined by the Building Inspector to prevent the entrance of persons other than those residing at the pool location. Pools shall have a minimum ten(10) foot setback from side and rear lot lines and be located no nearer the street than the building line of the dwelling, except by Special Permit. 8. Museums. 9. a. Public and private non-profit educational facilities. (1986/17) b. Private for profit educational facilities by Special Permit(1986/17) FN 10. Municipal building or use, and public service corporation use(Special Permit Required). (1986/18) 11. Golf Course. 12. Swimming and/or tennis clubs shall be permitted with Special Permit. 13. Cemetery. 14. Residential Dwellings A. Dwelling types a. One Family Dwelling. b. Two family dwellings,by special permit from the Zoning Board of Appeals in accordance with Sections 10.3 and 4.122.14.D of this Bylaw. B. Conversions - The conversion of an existing one-family to a two-family dwelling, by special permit from the Zoning Board of Appeals in accordance with Sections 10.3 and 4.122.14.D of this Bylaw, provided that conversion from a one-family to a two-family dwelling meets the following additional requirements: a. If a conversion involves increasing the size of an existing structure, the expansion area shall not exceed 50% of the original building's gross floor area up to a maximum of 1500 s.f. The size of the second dwelling unit can never exceed 1500 s.f. b. If a conversion involves razing an existing structure, the gross floor area of the new residential structure shall not exceed 150% of the gross floor area of the original building, nor shall the new structure be more than 1,000 square feet of gross floor area larger than the original structure, whichever is less. The size of the second dwelling unit may never exceed 1,500 square feet. If an existing lot is subdivided to form two or more new lots, and the existing structure lies within more than one of the new lots, and if the existing structure is to be razed in connection with the conversion, then new buildings on any lot formerly covered by the existing structure must comply with all the provisions of 4.122.14.13 of the Bylaw. Newly created lots not formerly covered by the existing structure must meet the requirements of 4.122.14.D of the Bylaw. c. There must be two parking spaces for each dwelling unit. d. No parking/driveway shall be permitted within 10 feet of any lot line. e. No garage or carport shall face the street unless it is located at least 10 feet behind the front fagade of the principal structure and in accordance with the dimensional setbacks outlined in Table 2 of this Bylaw. f. The converted structure shall meet all of the dimensional requirements of the R-4 District identified in Table 2 of this Bylaw. g. Stairways leading to the second or any higher floor shall be enclosed. h. The principal building in a conversion to a two-family dwelling shall share a connected common wall (or floor) for at least 75% of the wall's (or floor's) surface. No unheated structure, no structure without foundation, and no structure that is entirely or partially a garage shall be considered as meeting the 75%requirement. i. The conversion of a one-family dwelling to a two-family dwelling: 1. Must not result in any portion of the post-conversion roofline height exceeding the pre- conversion roofline height by more than five(5) feet, and 2. Must not significantly increase or decrease the pitch of any additional post-conversion roof area C. The conversion of an existing dwelling to accommodate not more than five (5) residential units, by special permit from the Zoning Board of Appeals in accordance with Sections 10.3 and 4.122.14.1) of this Bylaw. The conversion of a single family dwelling to a two-family dwelling must comply with the provisions of Sections 10.3, 4.122.14.13, and 4.122.14.D. FN D. Special Permit Granting Criteria for Two-Family Dwelling and One-Family to Two-Family or Multi-Family Conversions. a. The Zoning Board of Appeals may approve a special permit for a proposed use of a building, dwelling or structure provided by Section 4.122.14.A.b., 4.122.14.B or 4.122.14.0 upon finding that the application complies with the purposes of this Bylaw, and is consistent with the use of the site for the purpose permitted within the Residential 4 District. In making its decision, the Zoning Board shall consider the following criteria in addition to those listed in Section 10.31: 1. Consistency with the North Andover Master Plan. 2. The degree to which the proposed use furthers the Town's interest in providing a range of housing types,where applicable. 3. The degree to which the application addresses the following design standards: i. Achieve compatibility with the established pattern of uses in the district. The Residential 4 District consists primarily of single-family dwellings near the Stevens Memorial Library Area and off of Massachusetts Avenue, and more compact neighborhoods with a mix of residential uses toward Waverly Road. New construction or substantial alteration of buildings must compliment and reinforce the design features of these neighborhoods. ii. Achieve design compatibility with architectural features and exterior materials of surrounding structures. iii. Preserve existing structures of historic value. Buildings, dwellings or structures listed on the National Register of Historic Places or the State Register, and are more than 50 years old as of the date of application for a special permit, may be converted, constructed, reconstructed, restored or altered only in a manner that maintains or promotes their status as listed or eligible historic resources. For purposes of zoning compliance, additions or alterations that adhere to the U.S. Secretary of the Interior's Standards for the Treatment of Historic Properties will generally be presumed to maintain or promote such status. iv. Preserve established,mature vegetation. b. The right to apply for a special permit to convert an existing dwelling shall extend to any dwelling to be converted for use as a dwelling of not more than five (5) residential units, and meeting all requirements of the State and Town Statutes and Bylaws, including the Health Codes, Building Codes, Zoning Laws and Zoning Bylaws. Proof of ownership must be supplied with the application. E. Definitions: a. Addition: The enlargement, alteration, extension or change to an existing dwelling unit that does not result in the creation of an additional dwelling unit. b. Conversion: The enlargement, alteration, extension or change to an existing dwelling unit that results in the creation of one or more additional dwelling units in a single structure. A property is considered a conversion whether the added dwelling units are included as part of the existing structure, or whether a new structure is built after razing/demolition of the existing structure. 15. Municipal recreational areas. 16. Guest or rooming houses. 17. Nursing and convalescent homes — see dimensional requirements of Table 2 (Special Permit Required). 18. Any accessory use customarily incident to any of the above permitted uses, provided that such accessory shall not be injurious,noxious, or offensive to the neighborhood. FN 19. Accessory buildings no longer than sixty-four(64) square feet shall have a minimum five (5) foot setback from side and rear lot lines and shall be located no nearer the street than the building line of the dwelling. 20. Day Care Center by Special Permit. (1985/23). 21. Congregate Housing for Elders—Special Permit a. In the R-4 zone the Planning Board may grant a Special Permit for congregate housing consistent with Special Permit criteria and procedures set forth in Section 10.3 of this Bylaw. b. The maximum allowable FAR for congregate housing shall be 0.30 in the R-4 District seven (7)units. c. In no instance shall any new or pre-existing building used for congregate elderly housing, have no more than fourteen(14) dwelling units. d. All dimensional criteria established in Section 7, Table 2 Summary of Dimensional Regulations shall apply to all structures used for congregate housing purposes. 22. Family Suite — a separate dwelling unit within or attached to a dwelling for a member of a household is allowable by Special Permit provided: a. The dwelling unit is not occupied by anyone except brothers, sisters, maternal and paternal parents and grandparents, or children of the residing owners of the dwelling unit; b. That the premises are inspected annually by the Building Inspector for conformance to this section of the Bylaw; c. The Special Permit shall be recorded at the North Essex Registry of Deeds. 4.123 Village Residential District (1987/11) 1. Single- family residential structures. 2. Two-family residential structures. 3. Multi-family residential structures,not exceeding five (5)dwelling units per structure. 4. Place of worship. 5. Renting rooms for dwelling purposes or furnishing table board to not more than four(4)persons not 6. For the use of a dwelling in any residential district or multi-family district for a home occupation, the following conditions apply: a. Not more than a total of three(3)people may be employed in the home occupation, one of whom shall be the owner of the home occupation and residing in said dwelling b. The use is carried on strictly within the principal building. c. There shall be no exterior alterations, accessory building or display which is not consistent with residential buildings. d. Not more than twenty- five percent(25%) of the existing gross floor area of the dwelling unit so used,not to exceed one thousand(1000) square feet, is devoted to such use. In connection with such use,there is to be kept no stock in trade, commodities, or products which occupy space beyond these limits. e. There will be no goods or wares visible form the street. f. The building or premises occupied shall not be rendered objectionable or detrimental to the residential character of the neighborhood due to exterior appearance, emissions of odor, gas smoke, dust,noise, disturbances, or on any way become objectionable or detrimental to the residential use within the neighborhood. g. Any such building shall include no feature of design not customary in building for residential use. Real estate signs not to exceed twenty four(24) inches by thirty six(36) inches in size which shall a. Farming of field crops and row crops, truck gardens, orchards,plant nurseries, and FN greenhouses. b. On any lot of at least three (3) acres, the keeping of a total of not more than three(3) of any kind or assortment of animals or birds in addition to the household pets of a family living on such a lot, and or each additional acre of lot size to five(5) acres,the keeping of one additional animal or bird; but not the keeping of any animals,birds or pets of persons not resident of such lot. c. On any lot of at least five (5) acres the keeping of any number or animals, or birds regardless of ownership and the operation of equestrian riding academies, stables, stud farms, dairy farms, and poultry batteries. d. The sale of products raised as a result of the above uses on the subject land. 9. Swimming pools in excess of two (2) feet deep shall be considered a structure and permitted provided they are enclosed by a suitable wall or fence at least four(4) feet in height to be determined by the Building Inspector to prevent the entrance of persons other than those residing at the pool location. Pools shall have a minimum ten(10) foot setback from side and rear lot lines and be located no nearer the street than the building line of the dwelling, except by Special Permit. 10. Museums. 11. Educational facilities. 12. Municipal building and public service corporation use. (Special Permit Required) 13. Golf Course. 14. Swimming and/or tennis clubs shall be permitted with a Special Permit. 15. Cemetery. 16. One or two-family dwellings, including the right to convert an existing dwelling to accommodate not more than five(5) family units by Special Permit for the Zoning Board of Appeals after a public hearing with due notice given,provided: a. No major exterior structural changes shall be made. The right to convert shall apply to any dwelling under the ownership of one single person,partnership, or corporation to be converted for use as dwellings of not more than five(5) family units, and meeting all requirements of the State and Town Statutes and Bylaws, including Health Codes, Safety Codes,Building Codes, Zoning Laws and Zoning Bylaws. b. Stairways leading to the second or any higher floor shall be enclosed. 17. Municipal recreational areas. 18. Guest or rooming houses. 19.Nursing and convalescent homes—see dimensional requirements of Table 2 (Special Permit required). 20. Any accessory building no larger than sixty-four(64) square feet shall have a minimum five (5) foot setback from side and rear lot lines and shall be located no nearer the street than the building line of the dwelling. 21. Day Care Center by Special Permit. (1985/23) 4.124 Residence 5 District 1. One-family dwelling. 2. Place of worship. 3. Renting rooms for dwelling purposes for furnishing table board to not more than four(4) persons not members of the family resident in a dwelling so used,provided there by no display or advertising on such dwelling or its lot other than a name plate or sign not to exceed six(6) inches by twenty four(24) inches in size, and further provided that no dwelling shall be erected or altered primarily for such use. 4. For the use of a dwelling in any residential district or multi-family district for a home occupation, the following conditions shall apply: FN a. Not more than a total of three(3)people may be employed in the home occupation, one of whom shall be the owner of the home occupation and residing in said dwelling. b. The use is carried on strictly within the principal building; c. There shall be no exterior alterations, accessory buildings, or display which are not customary with residential use; d. Not more than twenty five (25)percent of the existing gross floor area of the dwelling unit so used, not to exceed one-thousand(1000) square feet, is devoted to such use. In connection with such use,there is to be kept not stock in trade, commodities or products that occupy space beyond these limits; e. There will be no display of goods or wares visible from the street; f. The building or premises occupied shall not be rendered objectionable or detrimental to the residential character of the neighborhood due to the exterior appearance,omission of odor, gas, smoke, dust,noise, disturbance or any other way become objectionable or detrimental to the residential use of the neighborhood; g. Any such building shall include no feature of design not customary in buildings for residential. 5. Real Estate signs not to exceed twenty four(24) inches by thirty six(36) inches in size which shall advertise only the rental,lease or sale of the premises upon which they are placed. 6. a. Farming of field crops and row crops,truck gardens, orchards,plant nurseries, greenhouses. b. On any lot of at least three (3) acres,the keeping of a total of not more than three(3) of any kind or assortment of animals or birds in addition to the household pets of a family living on such lot, and for each additional acre of lot size to five(5) acres,the keeping of one additional animal or birds;but not the keeping of such animals,birds, or pets of persons not resident on such a lot. c. On any lot of at least five(5) acres,the keeping of any number of animals or birds regardless of ownership and the operation of equestrian riding academies, stables, stud farms, dairy farms, and poultry batteries. d. The sale of products raised as a result of the above uses on the subject land. 7. Swimming pools in excess of two (2) feet deep shall be considered a structure and permitted provided they are enclosed by a suitable wall or fence at least four(4) feet in height to be determined by the Building Inspector to prevent the entrance of persons other than those residing at the pool location. Pools shall have a minimum ten(10) foot setback from side and rear lot lines and be located no nearer the street than the building line of the dwelling, except by Special Permit. 8. Museums. 9. Public buildings or use and public service corporations (Special Permit Required),but not including public works garages. 10. a. Public and private non-profit educational facilities (1986/17) b. Private for profit educational facilities by Special Permit. (1986/17) 11. Golf Course. 12. Swimming and/or tennis clubs shall be permitted with a Special Permit. 13. Cemetery. 14. Town houses. 15. Guest or rooming houses. 16.Nursing or convalescent home—see dimensional requirements of Table 2 (Special Permit required). 17. Multi-family dwellings. 18. Professional offices on the ground floor of multi-family dwelling structures. (Floor area utilized for offices shall reduce the total floor space ordinarily permitted for residential use on a proportional basis. Each one-thousand(1000) square feet or part thereof such floor space shall reduce the permitted number of dwelling units by one). 19. Hotel or motel (Special Permit required). FN 20. Parking, indoor storage and other accessory uses associated with the above uses,provided that such accessory use shall not be injurious, noxious, or offensive to the neighborhood. 21. Accessory buildings no larger than sixty four(64) square feet shall have a minimum five (5) foot setback from side and rear lot lines and shall be located no nearer the street than the building line of the dwelling. 22. Day Care Center by Special Permit. (1985/23) 4.125 Residence 6 District (1989/43) 1. Single-family residential structure. 2. Two-family residential structure. 3. Multi-family residential structures,not exceeding seven(7)dwelling units per structure. 4. Place of worship. 5. Renting rooms for dwelling purposes or furnishing table board to not more than four persons not members of the family resident in a dwelling so used,provided there be not advertising on such dwelling or its lot other than a name plate or sign not to exceed six(6)inches by twenty four (24)inches in size, and further provided that no dwelling shall be erected or altered primarily for such use. 6. For the use of a dwelling in any residential district or multi-family district for a home occupation,the following conditions shall apply: a. Not more than three (3)people may be employed in the home occupation, one of whom shall be owner of the home occupation and residing in said dwelling. b. The use is carried on strictly within the principal building. c. There shall be no exterior alterations, accessory building, or display that are not customary with residential buildings. d. Not more than twenty-five(25)percent of the existing gross floor area of the dwelling unit so used,not to exceed one thousand(1000) square feet, is devoted to such use. In connection with such use, there is to be kept no stock in trade commodities, or products which occupy space beyond these limits. e. There will be no display of goods or wares visible from the street. f. The building or premises occupied shall not be rendered objectionable or detrimental to the residential character of the neighborhood due to the exterior appearance, emissions of odor, gas, smoke, dust,noise, disturbances, or in any way become objectionable to any residential use within the neighborhood. g. Any such building shall include no feature of design not customary in buildings for residential use. 7. Real estate signs not to exceed twenty four(24) inches by thirty six(36)inches in size which shall advertise only the rental, lease, or sale of the premises upon which they are placed. 8. a. Farming of field crops and row crops, truck gardens, orchards,plant nurseries, and greenhouses. b. On any lot of at least three(3) acres,the keeping of a total of not more than three(3) of any kind or assortment of animals or birds in addition to the household pets of a family living on such lot, and for each additional acre of lot size to five(5) acres,the keeping of one additional animals or birds;but not the keeping of animals or birds or pets of persons not a resident of such lot. c. On any lot of at least five (5) acres the keeping of any number of animals or birds regardless of ownership and the operation of equestrian riding academies, stables, stud farms, dairy farms, and poultry batteries. d. The sale of products raised as a result of the above uses on the subject land. 9. Swimming pools in excess of two (2) feet deep shall be considered a structure and permitted provided they are enclosed by a suitable wall or fence at least four(4) feet in height to be FN determined by the Building Inspector to prevent the entrance of persons other than those residing at the pools location. Pools shall have a minimum of a ten(10) foot set back from rear and side lot lines and be located no nearer the street than the building lien of the dwelling, except by Special Permit. 10. Museums. 11. Educational facilities. 12. Municipal building and public service corporation use(Special Permit required). 13. Golf course. 14. Swimming and/or tennis clubs shall be permitted with Special Permit. 15. Cemetery. 16. One of two-family dwellings, including the right to convert an existing dwelling to accommodate not more than seven family units by special Permit from the Zoning Board of Appeals after a public hearing with due notice given,provided: a. No major exterior structural changes shall be made. The right to convert shall apply to any dwelling under the ownership of one single person,partnership, or corporation to be converted for use as dwelling of not more than seven(7) family units, and meeting all the requirements of the State and Town Statues and Bylaws, including Health Codes, Safety Codes,Building Codes, Zoning Laws, and Zoning Bylaws. b. Stairways leading to the second or any higher floor shall be enclosed. 17. Municipal recreation areas. 18. Guest or rooming houses. 19.Nursing and convalescent homes—see dimensional requirements of Table 2 (Special Permit required). 20. Any accessory building larger than sixty-four(64) square feet shall have a minimum five (5) foot setback from the side and rear lot lines and shall be located no nearer to the street than the building line of the dwelling. 21. Day Care Center by Special Permit. The following uses shall be allowed only by Special Permit,the permit granting authority shall be the Planning Board. 1. Retail stores, salesrooms, funeral parlors, showrooms or places for any professional artistic or mercantile activity not involving automotive sales, manufacturing or service, also retail bakeries or confectioneries by Special Permit. 2. Banks, offices and municipal, civic or public service buildings, such a post offices,telephone exchanges,town offices, school library, location passenger station by Special Permit. 3. Dining room or lunchroom by Special Permit. 4. Any accessory use customarily incident to any of the above permitted used,provided that such accessory use shall not be injurious,noxious, or offensive to the neighborhood by Special Permit. 5. Single family residential structures,which conform to the following dimensional criteria: (1992/52) Requirements Dimensions Lot area min. Sq.Ft 5,000 Height Max. (Ft.) 35 Street Frontage Min. (ft.) 75 (l) Front Set Back Min. (ft.) 20 Side Set Back Min. (ft.) 5 Rear Set Back Min. (ft.) 15 Floor Area Ratio Max. N/A Lot Coverage Max. 25% Dwelling Unit Density 6/acres(2) FN Contiguous Buildable Area 5,000 Sq.Ft. (Min.) For each application filed for a Special Permit under this Section,the applicant must have a contiguous parcel of land, in a single or consolidated ownership at the time of application, which is at least three (3)acres in size. Footnote: 1. In instances where a lot fronts on Route 114, for purposes of public safety,the required lot frontage shall be 250 feet. 2. Only if all lots or structures are serviced with public sewer and/or private sewer system approved and accepted by the Town. For the purpose of this Section, the term private sewer system shall mean a sewer system built by a developer of the Town specifications and locations, and dedicated to the Town. In no instances shall the term private sewer system be construed to limit accessibility to the sewer system beyond regulations consistent with the public sewer system. 4.126 Business 1 District 1. Retail establishments up to 50,000 square feet of gross floor area per user. Retail establishments in excess of 50,000 square feet of gross floor area per user shall be permitted with a Special issued by the Planning Board as Special Permit Granting Authority. 2. Personal service establishments. 3. Professional offices,banks,real estate offices, and insurance offices. 4. Eating or drinking uses may be permitted only as a secondary use within a permitted primary use. 5. Place of worship. 6. Non-profit school. 7. Public building or use and public service corporation. 8. Art gallery. 9. Residential uses including one and two-family dwellings. Apartments shall be allowed where such use is not more than fifty(50%)percent of the total floor space in the building. 10. a. Farming of field crops or row crops, truck gardens, orchards,plant nurseries and greenhouses. b. On any lot of at least three(3) acres,the keeping of a total on not more than three(3) of any kind or assortment of animals or birds in addition to the household pets of a family living on such lot, and for each additional acre of lot size to five (5) acres,the keeping of one additional animal or bird;but not the keeping of any animals,birds, or pets of persons not resident on such lot. c. On any lot of at least five(5) acres,the keeping of any number of animals or birds regardless of ownership and the operation of equestrian riding academies, stables, stud farms, dairy farms and poultry batteries. d. The sale of products raised as a result of the above uses on the subject land. 11. Swimming and/or tennis clubs shall be permitted with a Special Permit. 12. Parking, indoor storage and other accessory uses customarily associated with the above uses, provided that such accessory use shall not be injurious, noxious, or offensive to the neighborhood. 13. Day Care Center by Special Permit(1985/23). 4.127 Business 2 District 1. Retail establishments up to 50,000 square feet of gross floor area per user. Retail establishments in excess of 50,000 square feet of gross floor area per user shall be permitted with a Special Permit issued by the Planning Board as Special Permit Granting Authority. 2. Personal Service establishments. FN 3. Professional offices,banks,real estate offices and insurance offices. 4. Business and other offices. 5. Public building or use and public service corporation. 6. Art gallery. 7. Swimming and/or tennis clubs shall be permitted with a Special Permit. 8. Place of worship. 9. Eating and drinking establishments. 10.Non-profit school or private school for profit or museum. 11. Indoor place of amusement or assembly. 12. Automobile service station(limited to one in each 2,000 linear feet of street or highway as measured along centerline). 13. Medical center, clinic or medical laboratory. 14. Funeral parlor. 15. Multi-family dwelling and town houses (with Special Permit). 16. Public parking garages. 17. Taxi depot. 18. Printing and reproduction. 19. a. Farming of field crops and row crops, truck gardens, orchards,plant nurseries, and greenhouses. b. On any lot of at least three(3) acres,the keeping of a total of not more than three(3) of any kind or assortment of animals or birds in addition to the household pets of a family living on such lot, and for each additional acre of lot size to five(5) acres,the keeping of one additional animal or bird;but not the keeping of any animals,birds, or pets of persons not resident on such lot. c. On any lot of at least five(5) acres,the keeping of any number of animals or birds regardless of ownership and the operation of equestrian riding academies, stables, stud farms, dairy farms and poultry batteries. 20. Residential use where such use is not more than fifty(50%)percent of the total floor space in the structure. 21. Parking, indoor storage and other accessory uses associated with the above uses,provided that such accessory use shall not be noxious, injurious, or offensive to the neighborhood. 22. Day Care Center by Special Permit (1985/23). 4.128 Business 3 District 1. Retail establishments. 2. Personal service establishments. 3. Professional offices,banks,real estate offices and insurance offices. 4. Business and other offices. 5. Public building or use and public service corporation. 6. Art gallery. 7. Swimming and/or tennis clubs shall be permitted with a Special Permit. 8. Place of worship. 9. Eating and drinking establishments. 10.Non-profit school or private school for profit or museum. 11. Indoor place of amusement or assembly. 12.Automobile service station(limited to one in each 2,000 linear feet of street or highway as measured along the centerline). 13. Medical center, clinic or laboratory. 14. Funeral parlor. 15. Public parking garage. FN 16. Taxi depot. 17. Printing and reproduction. 18. Research and development facilities 19.New car sales but not to include outdoor car sales lots accommodating more than ten(10 used cars. 20. a. Farming of field crops or row crops,truck gardens, orchards,plant nurseries and greenhouses. b. On any lot of at least three(3) acres,the keeping of a total of not more than three(3)of any kind or assortment of animals or birds in addition to the household pets of a family living on such lot, and for each additional acre of lot size to five (5) acres,the keeping of one additional animal or bird;but not the keeping of any animals,birds, or pets of persons not resident on such lot. c. On any lot of at least five(5) acres,the keeping of any number of animals or birds regardless of ownership and the operation of equestrian riding academies, stables, stud farms, dairy farms and poultry batteries. d. The sale of products raised as a result of the above uses on the subject land. 21. Parking, indoor storage and other accessory uses associated with the above uses,provided that such accessory use shall not be injurious,noxious, or offensive to the neighborhood. 22. Day Care Center by Special Permit(1985/23) 4.129 Business 4 District 1. Research and development facilities. 2. Business,professional and other offices. 3. Accessory retail,personal service and eating and drinking use shall be permitted in an amount not to exceed ten(10%)percent of the total gross floor area of the principal uses. 4. Place of worship. 5. Non-profit school or private school for profit or museum. 6. Public building or use and public service corporations. 7. Hotel or motel (limited to one in each 2,000 linear feet of street or highway as measured alone centerline). 8. Medical center, clinic or medical laboratory. 9. Nursing or convalescent homes. See dimensional requirements of Table 2. 10. Art gallery. 11. Swimming and/or tennis clubs shall be permitted with a Special Permit. 12. Printing and reproduction. 13. a. Farming of field crops and row crops, truck gardens, orchards,plant nurseries, and greenhouses. b. On any lot of at least three(3) acres,the keeping of a total of not more than three(3) of any kind or assortment of animals or birds in addition to the household pets of a family living on such lot, and for each additional acre of lot size to five(5) acres,the keeping of one additional animal or bird;but not the keeping of any animals,birds, or pets of persons not resident on such lot. c. On any lot of at least five(5) acres,the keeping of any number of animals or birds regardless of ownership and the operation of equestrian riding academies, stables, stud farms, dairy farms and poultry batteries. d. The sale of products raised as a result of the above uses on the subject land. 14. Parking, indoor storage and other accessory uses associated with the above uses,provided that such use shall not be injurious,noxious, or offensive to the neighborhood. 15. Day Care Center by Special Permit(1987/12). 4.130 Village Commercial District(1987/12) FN 1. Retail stores and wholesale stores, salesrooms, funeral parlors, showrooms or place for any professional, artistic or mercantile activity,not involving automotive sales or manufacturing; also retail bakeries or retail confectioneries. 2. Banks, offices and municipal, civic or public service buildings, such as post office,telephone exchanges,town offices, school, library,museum,place of worship, local passenger station. 3. Hall, club,theater, or other place of amusement or assembly. 4. Restaurant, dining room or lunch room. 5. Any accessory use customarily incident to any of the above permitted uses,provided that such accessory use shall not be injurious,noxious, or offensive to the neighborhood. 6. a. Farming of field crops and row crops,truck gardens, orchards,plant nurseries and greenhouses. b. On any lot of at least three(3) acres,the keeping of a total of not more than three(3) of any kind or assortment of animals or birds in addition to the household pets of a family living on such lot, and for each additional acre of lot size to five(5) acres,the keeping of one additional animal or bird;but not the keeping of any animals,birds, or pets of persons not resident on such lot. c. On any lot of at least five(5) acres,the keeping of any number of animals or birds regardless of ownership and the operation of equestrian riding academies, stables, stud farms, dairy farms and poultry batteries. d. The sale of products of agriculture,horticulture, floriculture,viticulture, or silvaculture as well as accessory or customary items by the persons who is primarily engaged in any of the above activities. The operation must be at least ten(10) contiguous acres used primarily for any of these activities. 7. Day Care Center by Special Permit(1985/23) 4.131 General Business District 1. Retail stores and wholesale stores, salesrooms, funeral parlors, showrooms or places for any professional, artistic or mercantile activity,not involving manufacturing, also retail bakeries or retail confectioneries. 2. Banks, offices and municipal, civic,or public service buildings, such as post office, telephone exchange,town offices, school, library, museum,place of worship, local passenger station. 3. Hall, club,theater, or other place or amusement or assembly. 4. Automobile service and filling stations, automobile storage and repair garages, including automobile body repairs and painting, and automobile sales agencies for new and used cars, provided there be not displayed or stored outdoors on such premises more than twenty-five(25) automobiles or other vehicles. 5. Restaurant, dining room or lunchroom. 6. Residential use where such use is not more than fifty percent(50%) of the total floor space in the structure. 7. Any accessory use customarily incident to any of the above permitted uses,provided that such accessory use shall not be injurious,noxious, or offensive to the neighborhood. 8. a. Farming of crops and row crops,truck gardens, orchards,plant nurseries, and greenhouses. b. On any lot of at least three(3) acres,the keeping of a total of not more than three of any kind or assortment of animals or birds in addition to the household pets of a family living on such lot, and for each additional acre of lot size to five(5) acres,the keeping of one(1) additional animal or bird; but not the keeping of animals,birds, or pets of persons not resident on such lot. FN c. On any lot of at least five (5) acres,the keeping of any number of animals or birds regardless of ownership and the operation of equestrian riding academies, stud farms, dairy farms, and poultry batteries. d. The sale of products raised as a result of the above uses on the subject land. 9. Day Care Center by Special Permit(1985/23). 4.132 Industrial 1 District 1. Research and development facilities. 2. Business,professional and other offices. 3. Retail and food uses shall be permitted if they are accessory to the principal use and are primarily intended to service the principal use. No more than ten percent(10%) of the gross floor area of the principal use may be devoted to accessory use. Where there is more than one principal use each use may only have ten percent(10%) of gross floor area(GFA) devoted to any accessory use. (Refer to Section 2.21, Definition of Accessory Use Structure). (1987/25) 4. Place of worship. 5. Non-profit school or private school for profit. 6. Public building or use and public service corporations. 7. Medical center, clinic, or medical laboratory. 8. Art gallery or museum. 9. Swimming and/or tennis clubs and/or indoor ice skating facilities shall be permitted with a Special Permit. 10. Printing and reproduction. 11. Light manufacturing, including manufacturing, fabrication,processing, finishing, assembly, packing or treatment of articles or merchandise provided such uses are conducted solely within a building and further provided that such uses are not offensive,noxious, detrimental, or dangerous to surrounding areas or the town by reason of dust, smoke, fumes, odor, noise, vibration, light or other adverse environmental effect. 12. a. Farming of crops and row crops,truck gardens, orchards,plant nurseries, and greenhouses. b. On any lot of at least three(3) acres,the keeping of a total of not more than three of any kind or assortment of animals or birds in addition to the household pets of a family living on such lot, and for each additional acre of lot size to five(5) acres, the keeping of one(1) additional animal or bird;but not the keeping of animals,birds, or pets of persons not resident on such lot. c. On any lot of at least five(5) acres,the keeping of any number of animals or birds regardless of ownership and the operation of equestrian riding academies, stud farms, dairy farms, and poultry batteries. d. The sale of products raised as a result of the above uses on the subject land. 13. Warehousing and wholesaling shall be permitted only as a secondary use. 14. Golf course. 15. Parking, indoor storage and other accessory uses customarily associated with the above uses,provided that such accessory use shall not be injurious,noxious, or offensive to the neighborhood. 16. Day Care Center by Special Permit(1985/23). 4.133 Industrial 2 District 1. Research and development facilities. 2. Business,professional and other offices. FN 3. Retail and food uses shall be permitted if they are accessory to the principal use and are primarily intended to service the principal use. No more than ten percent(10%) of the gross floor area (GFA) of the principal use may be devoted to accessory use. Where there is more than one principal use each use may only have ten percent(10%) of gross floor area(GFA)devoted to any accessory use. (Refer to Section 2.21, Definition of Accessory Use Structure). (1987/25) 4. Place of worship. 5. Non-profit school or private school for profit. 6. Public service corporation and energy or resource recovery facility,provided that said resource recovery facility has first obtained a valid site assignment from the Board of Health pursuant to Section 150A of Chapter 111 of the General Laws. Any dumping of ash or other hazardous material generated by such facility shall be subject to Special Permit Granting Authority to be the Planning Board. (1992/56), (1999/28) 7. Medical center, clinic, or medical laboratory. 8. Art gallery. 9. Recreational uses, including swimming club,tennis club, health club, indoor ice skating facility, and indoor/outdoor athletic recreation facility by Special Permit. 10. Printing and reproduction. 11. Light manufacturing, including manufacturing, fabrication,processing, finishing, assembly, packing or treatment of articles or merchandise provided such uses are conducted solely within a building and further provided that such uses are not offensive,noxious, detrimental, or dangerous to surrounding areas or the town by reason of dust, smoke, fumes, odor, noise, vibration, light or other adverse environmental effect. 12. a. Farming of crops and row crops,truck gardens, orchards,plant nurseries, and greenhouses. b. On any lot of at least three(3) acres,the keeping of a total of not more than three of any kind or assortment of animals or birds in addition to the household pets of a family living on such lot, and for each additional acre of lot size to five (5) acres, the keeping of one (1) additional animal or bird;but not the keeping of animals,birds, or pets of persons not resident on such lot. c. On any lot of at least five(5) acres,the keeping of any number of animals or birds regardless of ownership and the operation of equestrian riding academies, stud farms, dairy farms, and poultry batteries. d. The sale of products raised as a result of the above uses on the subject land. 13. Warehousing and wholesaling. 14. Golf course. 15. Lumber or other building materials storage or sales, fuel storage or contractor's yard, provided all outdoor uses are enclosed by a fence of five(5) feet or more in height. 16.Bus garage. 17. Automobile service station(limited to one in each 2000 linear feet of street or highway as measured along centerline.) 18. Car wash. 19. Automobile or other motor vehicle repair,provided all activities are within an enclosed building. 20.Veterinary hospitals and kennels,provided all activities are with and enclosed building. 21. Parking, indoor storage and other accessory uses customarily associated with the above uses, provided that such accessory use shall not be injurious,noxious, or offensive to the neighborhood. 22. Day Care Center by Special Permit(1985/23). 23. Hotels and motels limited to one in each 2,000 linear feet of street or highway as measured along the centerline. 4.134 Industrial 3 District FN 1. Public buildings. 2. Public garages and accessory buildings. 3. Public service corporations. 4. Public sanitary disposal site. 5. Public storage of equipment. 6. All uses permitted in the Industrial 1 District. 7. Day Care Centers by Special Permit(1985/23). 4.135 Industrial"S"District 1. Research and development facilities. 2. Business,professional and other offices. 3. Place of worship. 4. Non-profit school or private school for profit. 5. Public building or use and public service corporations. 6. Printing and reproduction. 7. Light manufacturing, including manufacturing, fabrication,processing, finishing, assembly, packing or treatment of articles or merchandise provided such uses are conducted solely within a building and further provided that such uses are not offensive,noxious, detrimental, or dangerous to surrounding areas or the town by reason of dust, smoke, fumes, odor, noise,vibration, light or other adverse environmental effect. 8. Premises of a bank,post office,telephone exchange or telephone business office, local bus passenger station, or business office buildings. By Special Permit, an automobile service or filling station, a diner, a restaurant, a retail food store,but no other retail stores of any kind. 9. Warehousing and wholesaling. 10. Lumber or other building materials storage or sales, fuel storage, or contractor's yard,provided all outdoor uses are enclosed by a fence of five(5) feet or more in height. 11. Bus garage. 12. Any accessory use customarily incident to any of the above permitted uses,provided that such use shall not be injurious,noxious or offensive to the neighborhood. 13. a. Farming of crops and row crops,truck gardens, orchards,plant nurseries, and greenhouses. b. On any lot of at least three(3) acres,the keeping of a total of not more than three of any kind or assortment of animals or birds in addition to the household pets of a family living on such lot, and for each additional acre of lot size to five(5) acres,the keeping of one (1) additional animal or bird;but not the keeping of animals,birds, or pets of persons not resident on such lot. c. On any lot of at least five(5) acres, the keeping of any number of animals or birds regardless of ownership and the operation of equestrian riding academies, stud farms, dairy farms, and poultry batteries. d. The sale of products raised as a result of the above uses on the subject land. 14. Day Care Center by Special Permit(1985/23). 4.136 Watershed Protection Division 1. Purpose a. The Watershed Protection District is herein established as an overlay district and shall be superimposed on the other districts established by this Zoning Bylaw. The requirements enumerated hereafter for this Watershed Protection District shall be in addition to, rather than in place of, the requirements of such other districts. b. The Watershed Protection District surrounds Lake Cochichewick,the Town's sole source of public drinking water supply. Regulations within the District are intended to preserve the FN purity of the ground water,the lake and its tributaries; to maintain the ground water table, and to maintain filtration and purification functions of the land; while conserving the natural environment; and protecting the public health, safety and welfare. c. The Lake Cochichewick Watershed Plan(August 1987),prepared by I.E.P., Inc., for the Town of North Andover, is a comprehensive study of the lake and its watershed. The Watershed Protection District is a portion of the I.E.P's study recommended management plan. Copies of the I.E.P. report are available in the Planning Board Office. d. The Special Permit Granting Authority(SPGA)under this Bylaw shall be the Planning Board. 2. Boundaries and Zones a. The boundaries of the Watershed Protection District are shown on the Zoning Map as set forth on a plan entitled"Subdrainage Areas", Lake Cochichewick Watershed Plan(August 1987), Attachment 1, dated August 1985,prepared by I.E.P., Inc., for the Town of North Andover. This plan is hereby made a part of this Bylaw and is on file in the Office of the Town Clerk. b. The Watershed Protection District shall be divided into four zones. The uses and building requirements for each zone vary according to its proximity to the Lake and wetland resource areas. The Zones area as follows: i. General: there shall exist a General Zone within the Watershed Protection District which shall consist of all land located beyond four hundred(400) feet horizontally from the annual mean high water mark of Lake Cochichewick and all wetland resource areas(as defined in M.G.L. Chapter 131, Section 40, and the Town Wetland Bylaw) located within the Watershed. ii. Non-Discharged There shall exist a General Zone within the Watershed Protection District which shall consist of all land areas located between two hundred fifty(250) feet and four hundred(400) feet horizontally from the annual mean high water mark of Lake Cochichewick and between one hundred fifty(150) feet and four hundred(400) feet horizontally from the edge of all wetland resource areas(as defined by in M.G.L., Chapter 131, Section 40, and the Town Wetland Bylaw) located within the Watershed. iii. Non-Disturbance: There shall exist a Non-disturbance Buffer Zone within the Watershed Protection District which shall consist of all land areas located between one hundred fifty (150) feet and two hundred fifty(250) feet horizontally from the annual mean high water mark of Lake.Cochichewick, and between seventy-five(75) feet and one hundred fifty (15 0) feet horizontally from the edge of all wetland resource areas (as defined in M.G.L. Chapter 131, Section 40, and the Town Wetland Bylaw) located within the Watershed. iv. Conservation: There shall exist a Conservation Zone within the Watershed Protection District which shall consist of all land areas located within one hundred fifty(150) feet horizontally form the edge of all wetland resource areas and within seventy five(75) feet from the edge of all wetland resource areas(as defined in M.G.L. Chapter 131, Section 40, and the Town Wetland Bylaw) located within the Watershed. c. In the event that the SPGA determines, on the basis of credible evidence before it,that there exists a significant doubt or dispute concerning the proper location of boundaries of the Watershed Protection District on any individual lot or lots, the SPGA shall, at the request of the owner of such lot or lots, engage a Registered Professional Engineer to advise it in determining such boundaries. The owner making such request shall reimburse the SPGA for the cost of such engineer. Upon completion of the Engineer's report to the SPGA, the SPGA shall hold a hearing, such report shall be deemed evidence sufficient to establish the location of the boundary unless rebutted by credible evidence to the contrary. d. When the Watershed Protection District boundary divides a lot of record as of June 28, 1978, in one ownership,that portion of the lot within the Watershed Protection District must comply with this Bylaw. Where the premises are partially outside of the Watershed Protection FN District,potential pollution sources such as on-site waste disposal systems, shall be located outside of the District to the extent feasible. e. The provisions relating to the Conservation Zone Shall not apply to any activities undertaken by the Division of Public Works. f. The provisions relating to the Conservation Zone and the enlargement of the Non-Disturbance Zone and the Non-Discharge Zones shall only apply to lots recorded or registered after the date of the enactment of this amendment(October 24, 9194). (1994/ISTM). Table 1.Lots created after October 24, 1994 Conservation Non-Distrubance Non-Discharge From Annual High Water Mark 100 Feet 250 Feet 400 Feet Of Lake Cochichewick From Edge of All Wetland Resource 75 Feet 150 Feet 400 Feet Areas Within the Watershed District Table 2.Lots created on or prior to October 24, 1994 Non-Distrubance Non-Discharge From Annual High Water Mark 250 Feet 325 Feet Of Lake Cochichewick From Edge of All Wetland Resource 100 Feet 325 Feet Areas Within the Watershed District 3. Uses and Building Requirements a. General Zone There shall exist a General Zone within the Watershed Protection District which shall consist of all land located beyond four hundred(400) feet horizontally from the annual mean high water mark of Lake Cochichewick and all wetland resource areas(as defined in M.G.L. Chapter 131, Section 40, and the Town Wetland Bylaw) located within the Watershed. i. Allowed uses: The following uses shall be allowed in the General Zone of the Watershed Protection District as itemized below: (1) All permitted uses allowed in Section 4.121 "Permitted Uses Residence 1.2, and 3 District"of the Zoning Bylaw. (2) All uses associated with municipal water supply/treatment and public sewer provided by the Town of North Andover. (3) The Division of Public Works may conduct routine maintenance of any existing use of property, including the maintenance and improvements of existing roadways and drainage systems. (4) Maintenance of fire access lanes by the Fire Department. (5) All agricultural uses,providing that such uses exercise Best Management Practices and be undertaken in such a manner as to prevent erosion and siltation of adjacent water bodies and wetlands. ii. Uses Allowed by Special Permit: The following uses may be allowed in the General Zone of the Watershed Protection District by the granting of a Special Permit issued pursuant of Section 4 of the Watershed Protection District Bylaw. (1) Golf courses,public or private with Best Management Practices. (2) Any other uses not provided for elsewhere in this Section. (3) A commercial kitchen on public sewer. FN iii. Prohibited Uses: The following uses are specifically prohibited within the General Zone of the Watershed Protection District: (1) Any solid waste facility as defined my M.G.L. Chapter 111, Section 150A. (2) Municipal sewage treatment facility,not including sewer lines,pump stations and other accessory sewer system equipment used to transport sewage to a treatment facility located outside of the District. (3) Privately owned waste water treatment plants. (4) Road salt or other deicing stockpiles. (5) Underground tanks or collection pits for storage of fuel or hazardous materials including any tanks or collection pits partially below mean ground elevation but excluding any tanks located completely within a building otherwise permitted under this section. (6) Dumping of snow from outside the District. (7) Motor vehicle salvage operations and junk yards. (8) Car washes. (9) Self-service laundries,unless connected to public sewer. (10) Airplanes,boat, or motor vehicle service and repair establishments (including auto body shops). (11) Metal plating, finishing or polishing. (12) Chemical and bacteriological laboratories. (13) Electronic circuit assembly. (14) Hotels, or motels,unless connected to public sewer. (15) Painting,wood preserving and furniture stripping establishments. (16) Photographic processing establishments. (17) Printing establishments. (18) Dry Cleaning establishments. (19) Storage of herbicides,pesticides or fertilizers, other than in amounts normally associated with household or existing agricultural use. (20) Commercial cabinet or furniture making. (21) Commercial storage or sale of petroleum or other refined petroleum. (22) Commercial manufacture, storage,use,transportation or disposal of any substance of each physical, chemical or infectious characteristics as to pose a significant, actual or potential,hazard to water supplies, or other hazard to human health if such substance or mixture were discharged onto land or waters of this Town, including but not limited to organic chemicals,petroleum products,heavy metals,radioactive or infectious waste, acids, and alkalis, and all substances defined as Toxic or Hazardous under M.G.L. Chapter 21C and Chapter 21 E and the regulations promulgated there under, and also including pesticides,herbicides, solvents and thinners. (23) Restaurants unless connected to public sewer. (24) Commercial kitchens unless connected to public sewer. iv. Building Requirements: All construction in the Watershed Protection District shall comply with best management practices for erosion, siltation, and stormwater control in order to preserve the purity of the ground water and the lake,to maintain the ground water table; and to maintain the filtration and purification functions of the land. b. Non-Discharge Buffer Zone There shall exist a Non-Discharge Buffer Zone within the Watershed Protection District which shall consist of all land areas located between two hundred fifty(250) feet and four hundred (400) feet horizontally from the annual mean high water mark of Lake Cochichewick and between one hundred fifty(150) feet and four hundred(400) feet horizontally from the edge FN of all wetland resource areas (as defined in M.G.L. Chapter 131, Section 40, and the Town Wetland Bylaw) located within the Watershed. i. Allowed Uses: All of the Allowed Uses listed in Section 3 (a)(i) of this Watershed Protection District Bylaw are allowed in the Non-Discharge Buffer Zone except as noted below: ii. Uses Allowed by Special Permit: The following activities may be allowed within the Non-Discharge Buffer Zone only by the granting of a Special Permit issued pursuant of Section 4 of this Watershed Protection District Bylaw: (1) Any surface or sub-surface discharge, including but not limited to, storm water runoff; drainage or any roadway that is maintained by the Division of Public Works or any private association; outlets of all drainage swales; outlets of all detention ponds. All storm water management systems shall employ Best Management Practices. iii. Prohibited Uses: The following uses are specifically prohibited within the Non-Discharge Buffer Zone. (1) All of the Prohibited Use listed in Section 3(c)(iii) of this Watershed Protection District Bylaw are prohibited in the Non-Discharge Zone. (2) The use, or method of application of, any lawn care or garden product(fertilizer, pesticide,herbicide)that may contribute to the degradation of the public water supply. (3) The used of lawn care or garden products that are not organic or slow-release nitrogen. iv. Building_Requirements: All construction in the Watershed Protection District shall comply with the best management practices for erosion, siltation, and storm water control in order to preserve the purity of the ground water and the lake; to maintain the ground water table; and to maintain the filtration and purification functions of the land. c. Non-Disturbance Buffer Zone There shall exist a Non-Disturbance Buffer Zone within the Watershed Protection District which shall consist of all land areas located between one hundred fifty(150) feet and two hundred fifty(250) feet horizontally from the annual mean high water mark of Lake Cochichewick, and between seventy five(75) feet and one hundred fifty(15 0) feet horizontally from the edge of all wetland resource areas(as defined in M.G.L. Chapter 131, Section 40, and the Town Wetland Bylaw) located within the Watershed. i. Allowed Uses: All of the Allowed Uses listed in Section 3 (a)(i) of this Watershed Protection District Bylaw are allowed in the Non-Disturbance Zone except as noted. ii. Uses allowed by Special Permit: The following uses shall be allowed within the Non- Disturbance Buffer Zone only by Special Permit issued pursuant to Section 4 of this Watershed Protection district Bylaw: (1) Any activities which cause a change in topography or grade. (2) Vegetation removal or cutting, other than in connection with agricultural uses or maintenance of a landscape area. (3) Construction of a new permanent structure only after a variance has been granted by the Zoning Board if Appeals. (4) Replacement of any permanent structure. (5) Any surface or sub-surface discharge, including but not limited to, storm water runoff; drainage of any roadway that is maintained by the Division of Public Works or any private association; outlets of all drainage swales; outlets of all detention ponds. (6) Construction of any accessory structure or expansion of any existing structure by less than twenty five (25)percent of the gross floor if the existing structure exceeds 2,500 square feet. (2006/41) (7) Construction of any accessory structure or expansion of any existing structure by less than fifty(50)percent of the gross floor area of the existing primary structure is less FN then 2,500 square feet and the primary structure will be connected to municipal sewer upon completion of the project. (2006/41) iii. Prohibited Uses: The following uses are specifically prohibited within the Non- Disturbance Buffer Zone: (1) All of the Prohibited Uses listed in Section 3(c)(iii) of this Watershed Protection District bylaw are prohibited in the Non-Discharge Zone. (2) Construction of any septic system. (3) Construction of any new permanent structure, or expansion of an existing structure except as allowed by Special Permit per Section 3.c.ii. (4) The use, or method of application of, any lawn care or garden product(fertilizer, pesticide, herbicide)that may contribute to the degradation of the public water supply. (5) The use of lawn care or garden products that are not organic or slow-release nitrogen. iv. Building Requirements: all construction in the Watershed Protection District shall comply with best management practices for erosion, siltation, and storm water control in order to preserve the purity of the ground water and the lake;to maintain the ground water table; and to maintain the filtration and purification functions of the land. d. Conservation Zone There shall exist a Conservation Zone within the Watershed Protection District which shall consist of all land areas located within one hundred fifty(150) feet horizontally from the annual mean high water mark of Lake Cochichewick, and within seventy five(75) feet horizontally from the edge of all wetland resource areas(as defined in M.G.L. Chapter 131, Section 40, and the town Wetland Bylaw located within the Watershed. i. Allowed Uses: The following uses shall be allowed in the conservation Zone of the Watershed Protection District except as noted below: (1) All uses associated with municipal water supply/treatment and public sewer provided by the Town of North Andover. (2) The Division of Public Works may conduct routine maintenance of any existing use of property, including the maintenance and improvements of existing roadways and drainage systems. (3) Maintenance of fire access lanes by the fire Department. ii. Uses Allowed by Special Permit: No Special Permits will be granted in the Conservation Zone. iii. Prohibited Uses: The following uses are specifically prohibited within the conservation Zone: (1) All of the Prohibited Uses listed in Section 3(c)(iii) of this Watershed Protection district bylaw are prohibited in the Non-Discharge Zone. (2) Any activities which cause a change in topography or grade; (3) Vegetation removal or cutting, other than in connection with existing agricultural uses or maintenance of an existing landscape area; (4) Construction or placement of any new permanent structures; (5) Any surface or subsurface drainage, including,but not limited to, storm water runoff, (6) Animal feedlots or the storage of manure; (7) Construction of any septic system. (8) Construction of any accessory structure or expansion of any existing structure by twenty-five(25)percent or more of the gross floor area of the existing structure. (9) The use, or method of application of, any lawn care or garden product(fertilizer, pesticide,herbicide)that may contribute to the degradation of the public water supply. (10) The use of lawn care or garden products that are not organic or slow-release nitrogen. FN The above prohibitions shall not apply to any activities undertaken by the Division of Public Works within its authority or to work completed in conjunction with the construction of the municipal sewer system. (1994/ISTM) 4. Special Permit Requirements a. Nine (9) copies of an application for a Special Permit under this Section shall be filed with the SPGA. Special Permits shall be granted if the SPGA determines that the intent of the Bylaw, as well as its specific criteria, are met. In making such determination the SPGA shall give consideration to simplicity,reliability, and feasibility of the control measures proposed and the degree of threat to water quality which would result if the control measures failed. b. Upon receipt of a Special Permit Application,the SPGA shall transmit one(1) copy of each to the Division of Public Works, Fire Chief, Title III Committee,Division of Planning and Community Development, Conservation Commission, the Board of Health, and the Watershed Council for their written recommendations. Failure to respond in writing within thirty(30) days shall indicate approval or no desire to comment by said agency. c. An application for a Special Permit under this Section shall include the following information: i. Application Form for a Special Permit from the Planning Board. ii. Map on a scale of one(1) inch equals forty(40) feet prepared by a Registered Professional Engineer or Surveyor showing: (1) the annual mean high water mark of Lake Cochichewick(if annual mean high water mark is within four hundred(400)feet of any proposed activity, (2) the edge of all wetland resource areas, as confirmed by the Conservation Commission (if edge of wetland resource area is within four hundred(400) feet of any proposed activity), (3) the conservation zone, (4) the non-disturbance zone, (5) the non-discharge zone, (6) the edge of vegetation clearing(edge of work). iii. Written certification by a Registered Professional Engineer, or other scientist educated in and possessing extensive experience in the science of hydrology and hydrogeology, stating that there will not be any significant degradation of the quality or quantity of water in or entering Lake Cochichewick. iv. Proof that there is no reasonable alternative location outside the Non-Disturbance and/or Non-Discharge Buffer Zones, whichever is applicable, for any discharge, structure, or activity, associated with the proposed use to occur. (1994/38)\ v. Evidence of approval by the Mass. Dept. of Environmental Protection(DEP) of any industrial wastewater treatment or disposal system or any wastewater treatment of system fifteen thousand(15,000)gallons per day capacity. vi. Evidence that all on-site operations including,but not limited to, construction,waste water disposal, fertilizer applications and septic systems will not create concentrations of Nitrogen in groundwater, greater than the Federal limit at the down gradient property boundary. vii. Projections of down gradient concentrations of nitrogen,phosphorus and other relevant chemicals at property boundaries and other locations deemed pertinent by the SPGA. d. The SPGA may also require that supporting materials be prepared by other professionals including,but not limited to, a registered architect,registered landscape architect, registered FN land surveyor,registered sanitarian,biologist, geologist or hydrologist when in its judgment the complexity of the proposed work warrants the relevant specified expertise. e. Special Permits under this Section shall be granted only if the SPGA determines, after the time of comment by other Town agencies as specified above has elapsed,that, as a result of the proposed use in conjunction with other uses nearby,there will not be any significant degradation of the quality or quantity of water in or entering Lake Cochichewick. f. Any Special Permit issued under this Section for a new permanent structure (other than an accessory structure or expansion that is less than twenty five(25%) of the gross floor area of a structure) or a septic system shall require that such structure or system be constructed outside the Non-Disturbance Buffer Zone. g. Within the Non-Disturbance Zone and Non-Discharge Buffer Zone, any runoff from impervious surfaces shall,to the extent possible, be recharged on site and diverted toward areas covered with vegetation for surface infiltration.Where on site recharge is not feasible due to soil or other natural conditions, other mitigating measures such as sedimentation ponds, filter berms, or restoring wetlands, shall be used only where other methods are not feasible and after approval by the Board of Health, Building Inspector and the Division of Public Works to assure that the methods used for on site infiltration and/or other measures shall remain effective. h. Provisions shall be made to protect against toxic or hazardous material discharge or loss resulting from corrosion, accidental damage, spillage or vandalism through measures such as spill control provisions in the vicinity of chemical or fuel delivery points; secured storage areas for toxic or hazardous materials, and indoor storage provisions for corrodible or dissolved materials. For operations which allow the evaporation of toxic materials into the interior of any structure a closed vapor system shall be provided for each structure to prevent discharge or contaminated condensate into the groundwater. i. For any toxic or hazardous waste to be produced in quantities greater than those associated with normal household use,the applicant must demonstrate the availability and feasibility of disposal methods which are in conformance with M.G.L. Chapter 21 C. 5. Emergencies a. The Planning Board may issue an emergency special permit, subject to the subsequent consideration and determination by the Planning Board and upon the following findings: i) the work proposed is deemed necessary for the protection of the quantity of quality of the water in or entering Lake Cochichewick, and ii) the proposed work must be undertaken before the regular special permit application processed could be completed. b. A request for an emergency special permit shall be made in writing to the Planning Board and shall include the following: i) a statement as to why the emergency work is necessary to protect the quality and/or quantity of water in and/or entering Lake Cochichewick, and,\ ii) a statement as to why the emergency work must be undertaken before the completion of the regular special permit application process, and iii) a statement describing in detail the proposed work to remedy the emergency situation. c. All information required by Section 4/136(4) Special Permit Requirements must also be submitted with the application;provided however,that if all the required information or documents are not available due to the emergency nature of the situation, the applicant may request a waiver or delay regarding the submittal of the unavailable information or documents. d. Authorized emergency work must be performed within 60 days of the issuance of the emergency special permit. Any work,which is not completed within this 60-day period FN requires compliance with the regular special permit application procedures set forth in section 4.136.4 and renumbering Violations 4.136(6) and Severability 4.136(7). 6. Violations Written Notice of any violation of this Bylaw shall be provided by the SPGA agent to the owner of the premises specifying the nature of the violation. The agent of the SPGA shall request of the violator a schedule of compliance, including cleanup of spilled materials. Such schedule shall allow for the immediate corrective action to take place. This compliance schedule must be reasonable in relation to the public health hazard involved and the difficulty of compliance. In no event shall more than thirty(30)days be allowed for either compliance or finalization of a plan for longer term of compliance. Said schedule of compliance shall be submitted to the SPGA for approval subsequent to the violation. Said agent of the SPGA shall notify the Building Inspector of any violations of the Schedule of compliance or of any failure to satisfy the requirements of this paragraph. (1998/25). 7. Severabilitv In any portion, sentence, clause or phase of this regulation shall be held invalid for any reason,the remainder of this Bylaw shall continue in full force. 8. Waiver of Watershed Protection District Special Permit 1) When any construction proposed on an existing structure within the Watershed Protection District will not expand the existing footprint of a structure, and will not disturb existing topography, and is a proposal on town sewer, the Planning Board may determine, without a public hearing,that submission of a watershed protection district special permit is not required. However, in order to obtain such a waiver, an applicant must schedule and agree in writing for the Town Planner to perform a minimum of two inspections during the construction process to ensure proper erosion control is established during construction;the applicant must also agree in writing that the Town Planner can stop construction if the proper erosion control is not in place. For all proposals on septic, this section will not apply, and all applicants should refer to Sections 4.136(3)(a)(b)(c) and(d) of the Town of North Andover Zoning Bylaw. 2) The applicant must request a waiver from obtaining a Watershed Protection District Special Permit in writing and may be required to submit supporting documentation, including, but not limited to,proposed plans and correspondence depicting the proposal. The waiver request will be discussed at a regular meeting of the Planning Board. (Section 4.136 rewritten and reorganized at the May 1, 1995 Annual Town Meeting,Article 38) 4.137Flood Plain District(1993/39) 4.137 Floodplain District 1. STATEMENT OF PURPOSE The purpose of the floodplain District is to: a. Ensure public safety through reducing the threats to life and personal injury. b. Eliminate new hazards to emergency response officials; c. Prevent the occurrence of public emergencies resulting from water quality, contamination, and pollution due to flooding. d. Avoid the loss of utility services which if damaged by flooding would disrupt or shut down the utility network and impact regions of the community beyond the site of flooding; e. Eliminate costs associated with the response and cleanup of flooding conditions; f. Reduce damage to public and private property resulting from flooding waters. FN 2. FLOODPLAIN DISTRICT BOUNDARIES AND BASE FLOOD EVALUATION AND FLOODWAY DATA The Floodplain District is herein established as an overlay district. The underlying permitted uses are allowed provided that they meet the Massachusetts State Building Code, Section 3107, "Flood Resistant Construction" and any other applicable local, state or federal requirements. The District includes all special flood hazard areas designated on the North Andover Flood Insurance Rate Map (FIRM)issued by the Federal Emergency Management Agency(FEMA) for the administration of the NEIP dated June 2, 1993 as Zone A, AE, AH,AO,A99, and the FEMA Flood Boundary&Floodway Map dated June 2, 1993,both maps which indicate the 100 year regulatory floodplain. The exact boundaries of the District may be defined by the 100-year base flood evaluations shown on the FIRM and further defined by the Flood Insurance study booklet dated June 2, 1993. The FIRM,Floodway Maps and Flood Insurance Study booklet are incorporated herein by reference and are on file with the Town Clerk, Planning Board,Building Official, and Conservation Commission. 3. BASE FLOOD ELEVATION AND FLOODWAY DATA a. Floodway Data. In Zone A,AH, A99 and AE, along watercourses that have not had a regulatory floodway designated,the best available Federal, State, local or other floodway data as determined by the Building Inspector, in consultation with the Director of the Division of Public Works, shall be used to prohibit encroachments in floodways which would result in any increase in flood levels within the community during the occurrence of the base flood discharge. b. Base Flood Elevation Date. Base flood elevation data is required for subdivision proposals or other developments greater than 50 lots or 5 acres, whichever is the lesser,within unnumbered A zones. c. Areas designated as flood plain on the North Andover Flood Insurance Rate Maps may be determined to be outside the flood plain district by the Building Inspector, in consultation with the Director of the Division of Public Works, if an accurate topographic and property line survey of the area conducted by a registered professional engineer or land surveyor shows that the flood plain contour elevation does not occur in any area of proposed buildings, structures, improvements, excavation, filling,paving, or other work activity. The person requesting the determination shall provide any other information deemed necessary by the Building Inspector, in consultation with the Director of Division of Public Works to make that determination. If the Building Inspector, in consultation with the Director of the Division of Public Works, determines that the Flood Insurance Rate Maps are in error, the subject area shall not be regulated as occurring within the Flood Plain District, and any such determination shall be noted on the Flood Insurance Rate Maps.Nothing in this section shall prohibit the Conservation Commission,Board of Health, or other Town officials or Board from making non-zoning determinations of the flood plain or performing their official duties. 4. NOTIFICATION OF WATERCOURSE ALTERATION If a landowner or project proponent proposes to alter or relocate any watercourse,that person shall notify the following parties and provide evidence of such notification to every town board or official who has jurisdiction over such alteration or relocation prior to or at the time of applying for any approval that is required to perform such alteration of relocation: a. Notify in a riverine situation, the following of any alteration or relocation of a watercourse: 1. Adjacent Communities 2. Bordering States 3. NFIP State Coordinator Massachusetts Office of Water Resources FN 251 Causeway Street Suite 600-700 Boston, MA 02114-2104 4. NFIP Program Specialist FEMA Region I, Rm. 462 J.W. McCormick Post Office &Courthouse Boston, MA 02109 5. REFERENCE TO EXISTING REGULATIONS The Floodplain District is established as an overlay district to all other districts. All development in the district, including structural and non-structural activities,whether permitted by right or by special permit must be in compliance with Chapter 131, Section 40 of the Massachusetts General Laws and with the following: a. Section of the Massachusetts State Building Code which addresses Floodplain and coastal high hazard areas (currently 780 CMR 3107.0"Flood Resistant Construction"); b. Wetlands Protection Regulations,Department of Environmental Protection(DEP) (currently 310 CMR 10.00); c. Inland Wetlands Restriction,DEP(currently 302 CMR 6.00); d. Coastal Wetlands Restriction,DEP (currently 302 CMR 4.00); e. Minimum Requirements for the Subsurface Disposal of Sanitary Sewage,DEP (currently 310 CMR 15, Title 5); f. Any variances from the provisions and requirements of the above referenced state regulations may only be granted in accordance with the required variance procedures of these state regulations. 6. OTHER USE/DEVELOPMENT REGULATIONS a. Within zones AH and AO on the FIRM, adequate drainage paths are required around structures on slopes,to guide floodwaters around and away from proposed structures. b. Within Zones Al-30 and AE, along watercourses that have a regulatory floodway designated on the North Andover FIRM of Flood Boundary&Floodway Map dated June 2, 1993; encroachments are prohibited in the regulatory floodway which would result in any increase in flood levels within the community during the occurrence of the base flood discharge. However, a registered professional engineer may provide proof and certification to the Building Commissioner, in conjunction with the Director of the Division of Public Works, demonstrating that such encroachments shall not increase flood levels during the occurrence of the 100 year flood, and if both the Building Commissioner, in conjunction with the Director of the Division Public Works approve this certification, such encroachments shall not be deemed to be prohibited. c. All subdivision proposals filed in accordance with M.G.L. Chapter 41, Section 81 S and 81 T [or any revisions to the subdivision control law referencing the submission of preliminary or definitive subdivision plans],respectively shall be designed so that: 1. such proposals minimize flood damage; 2. all public utilities and facilities are located and constructed to minimize or eliminate flood damage; and 3. adequate drainage is provided to reduce exposure to flood hazards. 4. Existing contour intervals of site and elevations of existing structures must be included on plan proposal; 5. The applicant shall circulate or transmit one copy of the development plan to the Conservation Commission, Planning Board, Board of Health,Town Engineer, and FN Building Commissioner for comments which will be considered by the appropriate permitting board prior to issuing applicable permits. 7. PERMITTED USES The following uses of low flood damage potential and causing no obstruction to flood flows are encouraged provided they are permitted in the underlying district and they do not require structures, fill or storage of materials or equipment: a. Agricultural uses such as farming, grazing,truck farming,horticulture, etc. b. Forestry and nursery uses. c. Outdoor recreational uses, including fishing,boating,play areas, etc. d. Conservation of water,plants,wildlife. e. Wildlife management areas, foot,bicycle, and/or horse paths. f. Temporary non-residential structures used in connection with fishing, growing,harvesting, storage, or sale of crops raised on the premises. g. Buildings lawfully existing prior to the adoption of these provisions. 8. DEFINITIONS: The following definitions are taken from the NFIP regulations and the Massachusetts State Building Code, Section 3107. a. AREA OF SPECIAL FLOOD HAZZARD is the land in the floodplain within a community subject to a one percent or greater chance of flooding in any given year. The area may be designated as Zone A,AO,AH,Al-30,AE,A99 V1-30,VE, or V. b. BASE FLOOD means the flood having one percent chance of being equaled or exceeded in any given year. c. COASTAL HIGH HAZARD AREA means the area subject to high velocity waters, including but not limited to hurricane wave wash or tsunamis. The area is designated on a FIRM as ZONE V,V1-30, and VE. d. DEVELOPMENT means any manmade change to improved or unimproved real estate, including but not limited to building or other structures,mining, dredging, filling, grading, paving, excavation or drilling operations. e. DISTRICT means floodplain district. f. EXISTING MANUFACTURED HOME PARK OR SUBDIVISION means a manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed(including at a minimum, the installation of utilities,the construction of streets, and either final site grading or the pouring of concrete pads) and is completed before the effective date of the floodplain management regulations adopted by a community. g. EXPANSION TO AN EXISTING MANUFACTURED HOME PARK OR SUBDIVISION means the preparation of additional sites by the construction of facilities for servicing the lots on which the manufactured homes are to be affixed(including the installation of utilities,the construction of streets, and either final site grading or the pouring of concrete pads). h. FEDERAL EMERGENCY MANAGEMENT AGENCY(FEMA) means the agency that administers the National Flood Insurance Program. FEMA provides a nationwide flood hazard area mapping study program for communities as well as regulatory standards for development in the flood hazard areas. i. FLOOD BOUNDARY AND FLOODWAY MAP means an official map of a community issued by FEMA that depicts,based on detailed analyses, the boundaries of the 100-year and 500-year floods and the 100-year floodway. (For maps done in 1987 and later,the floodway designation is included on the FIRM.) FN j. FLOOD HAZARD BOUNDARY MAP (FHBM)means an official map of a community issued by FEMA where the boundaries of the flood and related erosion areas having special hazards have been designated as Zone A or E. k. FLOOD INSURANCE RATE MAP (FIRM)means an official map of a community on which FEMA has delineated both the areas of special flood hazard and the risk premium zones applicable to the community. 1. FLOOD INSURANCE STUDY(FIS)means an examination, evaluation, and determination of flood hazards, and, if appropriate,corresponding water surface elevations, or an examination, evaluation and determination of flood-related erosion hazards. m. FLOODWAY means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation. n. LOWEST FLOOR means the lowest floor of the lowest enclosed area(including basement or cellar).An unfinished or flood resistant enclosure,usable solely for parking of vehicles, building access or storage in an area other than a basement area is not considered a building's lowest floor, PROVIDED that such enclosure is not built so as to render the structure in violation of the applicable non-elevation design requirements of NFIP Regulations 60.3. o. MANUFACTURED HOME means a structure, transportable in one or more sections, which is built on a permanent chassis and is designed for use with or without a permanent foundation when connected to the required utilities. For floodplain management purposes the term "manufactured home" also includes park trailers, travel trailers, and other similar vehicles placed on a site for greater than 180 consecutive days. For insurance purposes, the term "manufactured home" does not include park trailers, travel trailers, and other similar vehicles. p. MANUFACTURED HOME PARK OR SUBDIVISION means a parcel (or contiguous parcels) of land divided into two or more manufactured home lots for rent or sale. q. NEW CONSTRUCTION means, for floodplain management purposes, structures for which the "start of construction" commenced on or after the effective date of a floodplain management regulation adopted by a community. For the purpose of determining insurance rates,NEW CONSTRUCTION means structures for which the "start of construction" commenced on or after the effective date of an initial FIRM or after December 31, 1974, whichever is later. r. NEW MANUFACTURED HOME PARK OR SUBDIVISION means a manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed(including, at a minimum, the installation of utilities,the construction of streets, and either final site grading or the pouring of concrete pads) is completed on or after the effective date of the floodplain management regulations adopted by a community. s. ONE-HUNDRED-YEAR FLOOD- see BASE FLOOD. t. REGULATORY FLOODWAY- see FLOODWAY u. SPECIAL FLOOD HAZARD AREA means an area having special flood and/or flood related erosion hazards, and shown on an FHBM or FIRM as Zone A,AO,Al-30,AE, A99, AH,V,VI-30,VE. v. START OF CONSTRUCTION includes substantial improvement, and means the date the building permit was issued,provided the actual start of construction,repair, reconstruction, rehabilitation, addition,placement, or other improvement was within 180 days of the permit date. The actual start means either the first placement of permanent construction of a structure on site, such as the pouring of slab or footings, the installation of piles,the construction of columns, or any work beyond the stage of excavations; of the placement of a manufactured home on a foundation. For a substantial improvement,the actual start of construction means FN the first alteration of any wall, ceiling, or floor or other structural part of the building, whether or not that alteration affects the external dimensions of the building. w. STRUCTURE means, for floodplain management purposes, a walled and roofed building, including a gas or liquid storage tank that is principally above ground, as well as a manufactured home. STRUCTURE, for insurance coverage purposes,means a walled and roofed building, other than a gas or liquid storage tank that is principally above ground and affixed to a permanent site, as well as a manufactured home on foundation. For the latter purpose,the term includes a building while in the course of construction, alteration, or repair, but does not include building materials or supplies intended for use in such construction, alteration, or repair,unless such materials or supplies are within an enclosed building on the premises. x. SUBSTANTIAL DAMAGE means damage of any origin sustained by a structure whereby the cost of restoring the structure to its before damaged condition would equal or exceed 50 percent of the market value of the structure before the damage occurred. y. SUBSTANTIAL IMPROVEMENT means reconstruction, rehabilitation, addition or other improvement of a structure, the cost of which equals or exceeds 50 percent of the market value of the structure before"start of construction"of the improvement. This term includes structures,which have incurred"substantial damage",regardless of the actual repair work performed. z. ZONE A means the 100-year floodplain area where the base flood elevation(BFE)has not been determined. To determine the BFE,use the best available federal, state, local, or other data. aa. ZONE Al -A30 and ZONE AE (for new and revised maps)means the 100-year floodplain where the base flood elevation has been determined. bb. ZONE AH and ZONE AO means the 100-year floodplain with flood depths of 1 to 3 feet. cc. ZONE A99 means areas to be protected from the 100-year flood by federal flood protection system under construction. Base flood elevations have not been determined. dd. ZONES B, C,AND X are areas identified in the community Flood Insurance Study as areas of moderate or minimal flood hazard. Zone X replaces Zones B and C on new and revised maps. ee. ZONE V means a special flood hazard area along a coast subject to inundation by the 100- year flood with the additional hazards associated with storm waves. Base flood elevations have not been determined. ff. ZONE V1-30 and ZONE VE (for new and revised maps)means a special flood hazard area along a coast subject to inundation by the 100-year flood with additional hazards due to velocity(wave action). Base flood elevations have been determined. FN 4.2 Phased Development Bylaw 1. Intent and Purpose. This Section 4.2.1 is adopted pursuant to the provisions of Massachusetts General Laws, Chapter 40A and the Home Rule Amendment,Article 89 of the Massachusetts Laws, Chapter 40A and the Home Rule Amendment,Article 89 of the Massachusetts Constitution, for the following purposes: a) to ensure that growth occurs in an orderly and planned manner, at a rate that can be supported by Town services,while avoiding large year to year variations in the development rate: b) to allow the Town time to update and implement its Master Plan and Housing Plan and to provide the Town with time to study the effect of growth on the municipality's infrastructure, character, and municipal services, and to continue municipal comprehensive planning studies necessary to provide orderly growth; c) to allow the Town time to study,plan for, and provide an additional source of water so as to protect the Town's water supply for future growth; d) to relate the timing of residential development to the Town's ability to provide adequate public safety, schools,roads,municipal infrastructure, and human services at the level of quality which citizens expect, and within the Town's ability to pay under the financial limitations of Proposition 2 %2; e) to allow departments from the strict application of the growth rate measures herein in order to encourage certain types of residential growth which address the housing needs of specific population groups or which provide significant reductions in the ultimate residential density of the Town. 2. Definitions. For the purposes of this Bylaw,the following terms shall have the following meaning: a) "Anniversary date" for each subdivision, special permit, or contiguous Form A lots under this provision shall be no earlier than the date on which all required approvals required for a building permit have been obtained. b) "Developer" any individual who either as an individual, a beneficial owner of a real estate trust, a partner in a partnership, or an officer or owner of a corporation,requests one or more building permits for the construction of new dwelling units. c) "Development" shall mean a single parcel or set of contiguous parcels of land held in substantial common ownership,regardless of form, at any time on or after the date of adoption of this bylaw, for which one or more building permits are sought. d) "Phased Development Schedule"shall mean a schedule authorized by the Planning Board or its authorized designee in accordance with this Section, which outlines the maximum building permit issuance per development. 3. Regulations. a) Beginning on the effective date of this section,no building permit for a new residential dwelling unit or units shall be issued unless in accordance with the regulations of this section, or unless specifically exempted in Section 6 below, or by the provision of MGL, s. 40A, c. 6. b) The regulations of this section shall apply to all definitive subdivision plans, subdivisions not requiring approval, contiguous Form A lots held in common or related ownership on the effective date of this by-law, site plan review applications, and special permits,which would result in the creation of a new dwelling unit or units. Dwelling units shall be considered as part of a single development for purposes of development scheduling if located either on a single parcel or contiguous parcels of land that have been in the same ownership at any time on or subsequent to the date of adoption of this section. FN c) For all building lots/dwelling units covered under Subsection 3(b),the Planning Board is authorized to approve a Phased Development Schedule for that lot/unit in accordance with Section 4a. d) The request for authorization of a Phased Development Schedule shall be made on forms provided by the Planning Board. Requests will include any and all information necessary to demonstrate eligibility and compliance with these regulations. e) No building permits for new dwelling units shall be issued until the Phased Development Schedule has been recorded in the Essex County Registry of Deeds and a certified copy of the Phased Development Schedule has been filed with both the Planning and Building Departments. f) Upon transfer of any lot or unit subject to this section,the deed shall reference the Phased Development Schedule and state the earliest date on which construction may be commenced in accordance with the provision of this bylaw. g) If a proposed subdivision includes any lots that are within 500 feet of lots in another subdivision held in common or affiliated ownership,then both subdivisions shall be construed to be a single subdivision for the purposes of this Bylaw. h) Lot lines for Form A lots shall be defined when the Form A lots have been approved by the Planning Board or an authorized agent. Subsequent changes in the shape or ownership of lots shall not render the provisions of this Bylaw void. i) Building permits shall be issued in accordance with the Phased Development Schedule. However, the Planning Board may,without a public hearing and upon written request from The applicant,permit up to twice the allowed annual maximum permitted for that project under the provisions of this Bylaw,provided that building permits issued in succeeding years shall be limited to less than the permitted maximum, if necessary, to insure that the overall number of allowed permits is not exceeded. j) The Planning Board, in conjunction with the Building Inspector, shall be responsible for administering this section of the Bylaw. Accordingly, the Planning Board shall adopt and publish reasonable regulations for carrying out its duties under this section. In particular,these regulations shall address the conditions and processes for authorizing building permits on an annual basis. 4. Phased Development Schedule a) Building permits for new dwelling units shall be authorized only in accordance with the following Phased Development Schedule: Maximum Units for which Number of Units in Minimum Years Building Records Subdivision Development for Development May be Issued Per Year 1-6 1 All 7-20 2 50% of total 21-34 3 33% of total 35-50 4 25%of total 51-75 5 20%of total 76-125 6 16.7%of total 126+ 7 14.3%of total No Phased Development Schedule shall exceed seven years. Notwithstanding anything to the contrary in this Zoning Bylaw, the Planning Board may approve an alternative Phased Development Schedule, provided that in doing so, the project is consistent with any one of the purposes set forth under Section 4.2.1 above. FN b) The number of lots eligible for building permits in the first year of the development shall be prorated from the anniversary date to December 31. Fractions of.5 or greater shall be rounded up to the nearest number and fractions less than .5 shall be rounded down. c) If as a result of an applicant seeking approval of a second plan of development on a parcel of land for which authorizations have been previously granted, a second plan is approved, a new Phased Development Schedule shall be established. The second schedule shall supersede the first Phased Development Schedule at the time a building permit is issued based on the second plan for any lot lying wholly or partially within the parcel subject to the new development schedule. d) The Planning Board, in approving the second plan, shall determine the number of authorizations from the first plan that would be abated based on the second plan's approval. This number shall be used by the Building Inspector in revising the authorization schedules due to abatements. 5. Requirements. a) All definitive subdivisions, Form A approvals, special permits, and site plan review applications shall include a proposed Phased Development Schedule by the applicant. b) Phased Development Schedules. i. Phased Development Schedules shall be determined by the Planning Board at the time of approval of any such application. Such schedules shall be included as a condition of approval of the application. ii. The Building Inspector shall be authorized to issue revised Phased Development Schedules based solely on approvals granted by the Planning Board. iii. All Phased Development Schedules with approved authorization shall be recorded with the application approval decision with the Town Clerk.No building permits shall be issued pursuant to the schedule until the applicant records the approval decision with the Phased Development Schedule at the Registry of Deeds. 6. Exemptions. The following developments are specifically exempt from the provisions of this bylaw. a) An application for a building permit for the enlargement,restoration, or reconstruction of a dwelling in existence as of the effective date of this by-law,provided that no additional residential unit is created. b) Definitive subdivision approvals, special permits, Form A lots and site plan approvals, and development schedules made and approved prior to the date of adoption of this by-law shall be exempt from the provisions of this by-law. The Planning Board shall have exclusive authority to render all decisions on exemption requests. c) Dwelling units for low and/or moderate income families or individuals, where all of the following conditions are met: i. Occupancy of the units is restricted to households qualifying under Local Initiative Programs and the New England Fund as administered by the Massachusetts Department of Housing and Community Development. ii. The affordable units are subject to a properly executed and recorded in perpetuity deed restriction running with the land that shall limit the succeeding resale price to an increase of 10 percent,plus any increase in the consumer price index,plus the cost of any improvements certified by the Building Inspector. d) Dwelling units for senior residents,where occupancy of the units is restricted to senior persons through a properly executed and recorded in perpetuity deed restriction running with the land. For purposes of this Section"senior" shall mean persons over the age of 55. FN e) Development projects which voluntarily agree to a minimum 40%permanent reduction in density, (buildable lots),below the density, (building lots),permitted under zoning and feasible given the environmental conditions of the tract, and as determined and approved by the North Andover Planning Board with the surplus land equal to at least ten buildable acres and permanently designated as open space and/or farmland. The land to be preserved shall be protected from development by an Agricultural Preservation Restriction, Conservation Restriction, and dedication to the Town, or other similar mechanism approved by the Planning Board that will ensure its protection. f) Any tract of land existing and not held by a Developer in common ownership with an adjacent parcel on the effective date of this Section shall receive a one-time exemption from the development Scheduling provisions for the purpose of constructing one single family dwelling Unit on the parcel. 7. Zoninp-Change Protection Any protection against zoning changes provided by M.G.L. c. 40A, s. 6, shall be extended to the earliest date on which the fmal unit in the development could be authorized under this bylaw. 8. Severability The provisions of this by-law are hereby declared severable and if any provision shall be held invalid or unconstitutional, it shall not be construed to affect the validity or constitutionality of any of the remaining. 9. Expiration The provisions of this Section 4.2 shall expire on July 1, 2009. Section 4.3 RESIDENTIAL ADAPTIVE RE-USE BYLAW 1. Intent The residential Adaptive Re-Use Special Permit is hereby established as a Special Permit in the Rl,R2,R3 and R4 residential districts on lots that are directly contiguous to lots in non- residentially zoned districts established by this Bylaw. 2. Purpose The purpose of this special permit is to encourage the creative re-use and conversion of existing residential structures adjacent to commercial and industrial parcels to a commercial use or mixed use in order to preserve historical structures,provide for additional tax revenue for the Town, provide flexibility to landowners, and to create a transition between residential and business areas. 3. Applicability/Eli ibg_ility A lot is eligible to receive a Residential Adaptive Re-Use Special Permit based on the provisions of Section 4.3(6) of this Bylaw,only if at the time of application(and based on the Zoning Map in effect at that time) the subject lot is: A) within the R1,R2, R3 and R4 districts; AND B) is directly contiguous (i.e. directly touching and not separated by a roadway or another parcel) to a parcel in a non-residential district(B1-B4,VC, GB, I1-3 and IS). 4. Permitted uses by pecial Permit include: A) Existing residential uses; B) Multi-family dwelling; FN C) Uses which involve historic materials or relate to the attraction provided by an historic atmosphere, such as museums, local arts and crafts shops, antique shops,woodworking, furniture repair, or restaurants; D) Enterprises whose principal use is the sale of agricultural products, such as greenhouses, orchards, nurseries, food co-ops, or farm products stores. E) Enterprises whose principal use is the sale of products produced in North Andover, such as local agricultural products or crafts; F) Personal service office; G) Professional offices; H) Business offices; I) Medical offices; J) Community resources such as banks,churches, schools, or libraries; K) Interior storage uses such as for boats or furniture; and L) Any appropriate combination as determined by the ZBA of the uses stated above. 5. Performance Standards. Restrictions&Additional Requirements A) Permitted uses shall be limited to the existing structures on the lot. However, in addition to ZBA special permit approval for the proposed use, an applicant may apply to the ZBA for a special permit to expand the size of the existing structures by up to 25% of the footprint of the structure as it existed on the date of enactment of the Residential Adaptive Re-Use Special Permit. B) The use permitted by this Special Permit shall not be considered objectionable or detrimental to the residential character of the neighborhood due to the exterior appearance, emission of odor, gas, smoke, dust,noise, disturbance, or in any other way objectionable to or detrimental to any residential use within the neighborhood. C) There will be no display of goods or wares visible from the street,with the exception of locally produced agricultural goods. D) There shall be no exterior alterations that are not customary or harmonious with the residential character of the building. E) Any additions to the structure above must comply with the setbacks and dimensional requirements of the corresponding residential district and non-conforming uses must comply with the requirements outline in Section 9 of this Bylaw. F) No more than 25%of the existing structure may be demolished. G) A minimum of 30%of the remaining lot area must remain permeable material such as,but not limited to, vegetation,mulch, and trees,unless specifically waived by the Planning Board during site plan review. H) Any new parking must meet the current parking requirements as designated in Section 8.1, Off Street Parking, shall be located to the rear or side of the building, and shall be screened from the road and abutting properties to be compatible with the character of the neighborhood. Screening shall consist of one or more of the following: fencing,vegetation, flora, deciduous shrubs and/or trees. I) The ZBA and Planning Board may grant special permits for prospective uses and site plans in order that owners may renovate for approval for specific businesses or tenants. Evidence shall be provided that the project is in accordance with the current North Andover Master Plan and if applicable,with the guidelines set forth in The Secretary of the Interior's Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings (Revised 1983) (36CFR67) in terms of the rehabilitation of the building and its site. FN 6. Application and Approval Procedure A) In order to obtain a Residential Adaptive Re-Use Special Permit, an applicant must receive a special permit from the North Andover ZBA approving the intended use and any proposed expansion in accordance with Section 9.3(5) of this By-Law. B) After such approval has been obtained from the ZBA,the applicant must obtain a Site Plan Special Permit from the Planning Board as referenced in Section 8.3 of the Town of North Andover Zoning Bylaw. FN SECTION 5 EARTH MATERIALS REMOVAL 5.1 General 1. Excavation,removal, stripping, or mining of any earth material except as hereinafter permitted on any parcel of land,public or private, in North Andover,is prohibited. 2. Exclusive jurisdiction to issue Earth Removal Permits shall be with the Board except for Permits allowed in Paragraph 5.6 and 5.6. 3. 3. The Board or Building Inspector shall have the authority to issue an Operating Hours Extension Permit, as defined in Subsection 5.2. 4. The Building Inspector shall have the authority to enforce all conditions of any Permit issued under this Section on the Zoning Bylaw. 5. All earth removal operations in existence in North Andover on the effective date of this section shall be subject to the requirements stated herein. However, all Earth Removal Permits issued prior to the effective date of this Section shall remain in effect until their expiration date and/or annual review. At such time, said operation shall be subject to the provisions of this Section, unless otherwise allowed by the Board, for a period not to exceed six(6)months. 6. An annual fee of one hundred dollars ($100.00) shall be required for Earth Removal Permits. Miscellaneous Earth Removal Permits shall require an annual fee of twenty-five dollars ($25.00). 7. Violation of this Section of the Zoning Bylaw,notwithstanding the provisions of Section 10.13, imposes a penalty of fifty dollars ($50.00) for the first offense, one hundred dollars ($100.00) for the second and each subsequent offense. Each day of operation in violation of this section will be considered a separate offense. 8. Any sanitary landfill operated by the Town of North Andover shall be exempt from the provisions of this Section. 5.2 Definitions 1. Applicant: the owner, or prospective owner by reason of a Purchase and Sales Agreement, of the land shown by the plan submitted with the Earth Removal Permit Application. 2. Earth Materials: "earth materials" shall include soil, loam, sand, gravel, clay,peat rock, or other allied products. 3. Earth Removal Operations: the excavation, removal, stripping, or mining of any earth material on any site within the Town of North Andover. 4. Operating Hours Extension Permit: A permit issued by the Board or the Building Inspector for an extension of the time of operation for trucking from the site until 9:00 p.m. 5. Board: Zoning Board of Appeals. 6. Permit: The word "Permit" in the Earth Removal Section shall mean and include a Special Permit for earth removal as issued by the Special Permit Granting Authority. 5.3 Application for Earth Removal Permit 1. All applicants for Earth Removal Permits must submit seven(7) copies of the following information concerning the proposed site of the removal operation to the Board thirty(30) days prior to submission of an application for an Earth Removal Permit. The Board shall distribute the information to the Planning Board, Building Inspector, Conservation Commission,Board of Health,Highway Department, and Police Department, so that recommendations from these departments may be submitted for the required public hearing. 2. A plan or plans to scale, (1"=40'prepared and stamped by a Registered Engineer, showing the property line of the parcel of land under consideration along with all abutters to the property existing and final contours in five foot(5) elevation in increments, existing and proposed final drainage of the site, including all culverts, streams,ponds, swamps, and siltation basins,means of FN entrance and egress from the property, locus map, and any other pertinent data deemed necessary by the Board. 3. A plan, study, or report showing the proposed ultimate use of the land conforming with the existing Zoning Bylaw. Proper planning for future land use shall be a prime consideration affecting the issuance of an Earth Removal Permit. 4. A complete list of the names and addresses of current abutters of the property where such removal is proposed. 5. An operating schedule showing the active area(not to exceed five (5) acres) where the earth removal will begin and also how the total parcel will be developed in progressive five(5) acre increments. 5.4 Permits for Earth Removal 1. The Board may issue Earth Removal Permits for any zoning district, complete with conditions imposed, for areas not to exceed forty(40) acres. All Permits shall conform to the minimum restoration and operating standards contained herein and such other conditions as the Board may deem necessary. Said permit shall allow the working of only five (5) acres at any one time.Upon completion of the earth removal operation on a five(5) acre parcel, or a part thereof, and substantial restoration of said parcel as determined by the Board, according to the restoration standards at the Permit conditions, application may then be made to the Board for a Permit renewal. Such Permit renewal shall allow the removal of earth on another five(5) acre section, as shown by the operating schedule submitted with the Permit application. This procedure shall be followed until the operation is completed. 2. The permit shall be considered a non-transferable revocable Permit to remove earth materials. If it is found that incorrect information was submitted in the application, or that conditions of the Permit are being violated, or that the governing regulations are not being followed, the Permit shall be suspended until all provisions have been met and the premises made to conform. Failure of the Permit holder to comply within the time specified by the Board for correction of violations shall cause the Permit to be revoked, forfeiture of the security to the Town, and the imposition of all fines as set forth in Paragraph 5.1(2). 3. The Board shall discuss and review the permit periodically, and at a minimum, annually. Written progress reports showing conformance with regulations and Permit conditions shall be submitted to the Board by the Building Inspector or his designated agent every three(3)months. 4. An Earth Removal Permit shall not be in effect until the applicant has filed the proper security as required in Paragraph 5.9,paid the required fees as required by Paragraph 5.1(6), and recorded the Special Permit at the Registry of Deeds. 5. Mechanical crushing and screening may be permitted by the Board after a public hearing with due notice given. 5.5 Earth Removal Incidental to Development, Construction or Improvements 1. This regulation shall be deemed not to prohibit the removal of such sod, loam, soil, clay, sand, gravel, or stone as may be required to be excavated for the purpose of constructing ways in accordance with lines and grades approved by the planning Board, or for the purpose of constructing underground utilities. 2. Where soil is to be removed in connection with the preparation of a specific site for building, removal may take place only after the issuance of a building permit by the Building Inspector. Removal will be allowed only from the area for the building, driveways,parking areas, and from areas where removal is specifically required by the Board of Health in connection with disposal systems. Where special circumstances exist requiring general regarding,removal of peat, etc., the builder may file a plan and request for an additional soil removal permit with the Building Inspector as provided in Paragraph 5.6 below. FN 3. Where excavation,removal, stripping, or mining of earth on any parcel of land,public or private, is made necessary by order of any other Board or Agency of the Town, such excavation,removal, stripping, or mining, if in excess of one-thousand(1,000) cubic yards shall be governed by the provisions of Section 5.6 of this Bylaw. 4. Excavation,removal, stripping, or mining of earth incidental to improvements shall be governed by the provisions of Section 5.6 of this Bylaw. 5. All earth removal, excavation, stripping or mining as allowed under this paragraph shall be governed by the provisions of Section 5.6 of this Bylaw. 5.6 Miscellaneous Removal of Earth 1. Excavation,removal, stripping, or mining of miscellaneous amounts of earth as allowed under Section 5.5 is permitted provided the excavation,removal, stripping, or mining is necessary for the improvements of development of the property on which the excavation or removal takes place. 2. Excavation,removal, stripping, or mining of aggregate quantities of less than fifty(50)cubic yards on any one general site requires no formal approval. Where the excavation,removal, stripping, or mining of soil is on quantities in excess of fifty(50) cubic yards but less than one- thousand(1,000) cubic yards, application must be made to the Building Inspector for a Miscellaneous Soil Removal Permit.Where special circumstances exist which requires the excavation, removal, stripping, or mining of soil in excess of one-thousand(1,000) cubic yards, but less than five-thousand(5,000) cubic yards, a Permit may be granted by the Board for such removal without a public hearing. However,where the excavation, removal, stripping, or mining exceeds five-thousand(5,000) cubic yards,then a public hearing will be necessary and the Permit granted shall indicate the approximate quantity of soil to be removed,the purpose of removal, and the location of the site of removal. The Permit shall also specify that upon completion of excavation, exposed subsoil shall be graded and covered with loam to a minimum depth of six(6) inches and that the removal is to be controlled by the appropriate section of Paragraph 5.7 (Operating Standards). It is further provided that except where removal under this Paragraph is done in connection with the formation or enlargement of a pond, excavation shall not be permitted below the mean grade of the street or road serving the property. The excavation of said pond in any event shall not be such as to change the direction or flow of a water course or to cause surface water to gather as a sump or swale. Excavations for burying large rocks and stumps shall immediately be back filled for safety reasons. Failure to meet the requirements of this Paragraph shall be deemed a violation of this Zoning Bylaw. 5.7 Operation Standards 1. Time of Operation a. Excavation and site maintenance may be carried on from 6:30 a.m.until 7:30 p.m., Monday through Saturday. b. Trucking from the site may be carried on from 7:00 a.m. through 6:00 p.m.,Monday through Saturday. c. An Operating Hours Extension Permit for trucking until 9;00 p.m. for no more than three (3) consecutive days may be granted by the Building Inspector after reviewing conditions of the application. Said application shall show reason for extension of time, distance of hauling, and approximate cubic yards to be hauled. 2. Site Preparation a. Only the active area described in the Permit application may be made ready for earth removal. b. No standing trees are to be bulldozed over, or slashed and bulldozed into piles. All trees must be cut down. All wood and brush must be piled for removal or chipping.Wood chips may remain on the site.No trees are to be buried on the site. FN c. Stumps shall be buried in pre-designated areas as shown on application plans. d. Any change in stump burial must be submitted to the Board of approval. 3. Topsoil Storage a. All topsoil removed from the active removal area shall be piled for future site restoration. b. No topsoil shall be removed from the site until all areas have been restored and permission has been granted by the Board. 4. Erosion Control a. Prior to any excavation or earth removal, adequate siltation basins shall be constructed to prevent the run-off of silted water from the site. b. All excavation shall be done so as to create contours to channel run-off waters into the siltation basins. c. No siltation basin shall exceed seven(7) feet in depth. d. Siltation basins must be cleaned when sediment deposits are within eighteen(18) inches of the outfall invert. 5. Dust Control a. No earth removal operation shall create excessive amounts of dust or allow roads leading into or from a site to become excessively dust producing. b. Proper dust control methods shall be approved by the Building Inspector. 6. Excavation Near Brooks a. No excavation shall be made which will alter the natural way of existing elevation of a brook, stream, or river. b. All banks of brooks, streams, and rivers shall be reconstructed to be aesthetically attractive and of sufficient height to prevent abutting properties from flooding. c. Said bank height shall be computed, for a fifty(50)year storm for all brooks, streams, and rivers up to eight(8) feet in width and two(2) feet in depth; and for a one-hundred(100)year storm for all brooks, streams, and rivers which exceed this size. 7. Site Screening a. An immediate program of site screening shall start when site preparation begins. b. All entrances shall be screened with existing vegetation, evergreens, or other suitable natural methods, so as to prevent a direct view into the earth removal area. c. All areas within fifty(50) feet of a traveled way or abutting property lines shall be reforested immediately upon completion of the earth removal operation of that area. Said reforestation shall be done in accordance with the North Andover Tree Department. A minimum of one- hundred-fifty(150)trees per acre shall be used for this reforestation. Areas which are to be used for agricultural purposes after earth removal operations are completed may be reforested in the following manner. Trees shall be planted twenty-five(25) feet deep from the road or property line. The remaining area shall immediately be planted with grass or other suitable agricultural planting material. 8. Access Roads a. All access roads shall be level with intersecting streets for a distance of sixty(60) feet. b. A STOP sign shall be installed so as to warn any vehicle entering onto a Town street. c. All access roads shall be equipped with a suitable locking gate to prevent unauthorized entry. 9. Site Maintenance a. No open face excavation shall exceed twenty-five(25) feet in height. b. No excavation shall be closer than fifteen(15) feet to a property line. c. No slope shall exceed a two (2) foot horizontal to a one(1) foot vertical (2:1) grade. 10. Temporary Buildings a. All temporary structures shall be specified in the Special permit application and shown on the Plan FN b. Any structure erected on the premises for use by personnel or storage of equipment shall be located at least forty(40) feet from any existing roadway and at least thirty(30) feet from any lot line. c. Any temporary structure will be removed no later than ninety(90) days after the expiration date of the permit. 11. Mechanical Crushing and Screening a. All crushing and screening Permits shall be granted for a period not to exceed six(6)months. b. Said Permits shall be granted as a cleanup procedure only. c. Washing of processed material will not be allowed. d. Operation of crushing or screening equipment shall be from 7:30 a.m.until 5:00 p.m., Monday through Friday. e. All crushing and screening equipment shall be equipped with suitable dust and noise control devices. 5.8 Restoration Standards 1. All restoration must be completed within sixty(60) days after the termination of an Earth Removal Permit or by the first of June if the Permit terminates between December first through March thirty-first. 2. No slope shall be left with a grade steeper than a two(2) foot horizontal to a one(1) foot vertical (2:1). 3. All siltation basins shall be filled with earth, and a natural drainage pattern must be re-established. No area upon the site which will collect water shall remain unless approval is granted by the Board or unless the area was shown on the original application plans. 4. All topsoil which was on the site prior to earth removal operations shall be replaced to a minimum depth of six(6) inches on all disturbed areas. Sites that had less than six(6) inches of topsoil shall be restored with a minimum of four(4) inches over the entire area. 5. Seeding- The entire area shall be seeded with grass or legume which contains at least sixty percent(good conservation practices. Areas which washout are to be repaired immediately. 6. Reforestation-All areas which are disturbed in the earth removal operation shall be reforested with fifty percent(50%) coniferous and fifty percent(50%)deciduous trees planted at the rate of one hundred fifty(15 0)trees per acre. All trees used are to be a minimum of two (2)year transplants. Said planting shall be in accordance with the recommendations of the North Andover Tree Department. Areas which are to be used for agriculture purposes after earth removal operations are completed may be reforested in the following manner: a. Trees shall be planted twenty-five(25) feet deep from a public road or property line. b. The remaining area shall immediately be planted with grass or other suitable agricultural planting material.Permits issued by the Building Inspector for soil removal incidental to construction or for special purposes are exempt from reforestation paragraph. 7. Within ninety(90) days of completion of operations, all equipment, accessory buildings, structures, and unsightly evidence of operation shall be removed from the premises. 5.9 Security Requirements 1. There must be filed with the Town Treasurer, a continuous bond or deposit of money in the minimum amount of One-thousand dollars ($1,000)per acre to be excavated, and shall be of a sufficient amount to cover ten(10) acres, or the total parcel,whichever is smaller, as determined by and satisfactory to the Board. 2. After completion of the total project, and at the applicant's written request,the Board may grant a partial release of any security posted by the applicant. One(1)year after such a partial release is granted and if in the opinion of the Board,no damage or deterioration to the finished project has FN developed, the Board will issue a final release of the security. If, during the year following the date of a partial release, slumping, gullying, erosion, or any other unsatisfactory condition appears,the applicant shall be responsible for, and shall make any necessary repairs,before final release or security is granted. The bonding agent shall be required to give the Board of Appeals,by Registered or Certified mail, a sixty(60)day notice prior to any termination or cancellation of the bond. FN SECTION 6 SIGNS AND SIGN LIGHTING REGULATIONS 6.1 Authority and Interpretation This Bylaw is adopted, as a General Bylaw pursuant to Chapter 93, Section 29-33, inclusive, as amended, and a Zoning Bylaw pursuant to Chapter 40-A, as amended of the General Laws of the Commonwealth of Massachusetts. This Bylaw is hereby declared to be remedial and protective, and is to be so construed and interpreted as to secure the beneficial interests and purposes defined in Section 6.2 of this Bylaw. 6.2 Purposes 1. The regulation and restriction of signs within the Town of North Andover in order to protect and enhance the visual environment of the Town for purposes of safety, convenience, information, and welfare of its residents. 2. The restricting of signs and lights which overload the public's capacity to receive information, which violate privacy, or which increase the probability of accidents by distracting attention or obstructing vision. 3. To encourage signage and lighting which aid communication, orientation, identify activities, express local history and character, serve educational purposes for the public good. 4. The reduction of visual and informational conflict among private signs and lighting and between the private and public information systems. 6.3 Definitions 1. A-Frame Sign/Sandwich Board: A portable,temporary sign or device capable of standing without support or attachments. 2. Accessory Sign-A sign that advertises activities, goods,products, or a specific use, owner, or tenant, available within the building or on the property on which the sign is located, or advertises the property as a whole or any part thereof for sale or rent. 3. Animated Sign: Any sign that uses movement or a change of lighting to depict action or create a special effect or scene. 4. Building Frontage-The length in feet of a ground floor level of a building front or side facing a street(or facing a right-of-way accessible from a street)that is occupied by an individual business. 5. Directional Sign -A non-accessory sign containing no advertising and giving direction to community(non-commercial) activities,buildings, areas, such as churches, schools,playgrounds, museums,historical sites,public buildings, etc. Sign not to exceed 12"00". 6. Display Window Signs - Temporary signs on the surface of or inside display windows, lighted only by the general building illumination. 7. Erect- Shall mean and include to construct,place,relocate, enlarge, alter, attach, suspend, and post. 8. Flagpole-A pole erected on a roof, or projecting from a building or structure or on the ground. 9. Freestanding Sign - Shall mean and include any sign not attached to a building or the ground. 10. Ground Sign-Any sign erected on the ground which is self-supported and anchored to the ground. 11. Illuminated Sign -Illuminated sign shall mean any sign illuminated by electricity, or other artificial light including reflective or phosphorescent light and shall include location of source of illumination. 12. Marquee-Any sheltering structure of permanent construction projecting from and totally supported by the wall and/or roof of a building. 13. Non-Accessory Sign-Any sign that is not an accessory sign. 14. Obscene- shall have the meaning as that term is defined in Massachusetts General Laws Chapter 272, Section 1. Massachusetts General Laws, Chapter 272, Section defines "obscene" as follows: FN 1. appeals to the prurient interest of the average person applying the contemporary standards of the county where the offense was committed; 2. depicts or describes sexual conduct in a potentially offensive way; and 3. lacks serious literary, artistic, or political or scientific value. 15. Permanent Sign -Any sign permitted to be erected and maintained for more than sixty(60)days. 16. Primary Sign - The principal accessory sign which may be a wall, roof, or ground sign, as allowed in Section 6.6. 17. Projecting Sign-Any sign which is attached or suspended from a building or other structure and any part of which projects more than twelve(12) inches from the wall surface of that portion of the building or structure. 18. Roof Sign-Any sign erected, constructed, and maintained wholly upon, connected to, or over the roof or parapet of any building with the entire support on the roof or roof structure. 19. Secondary Sign-Is a wall,roof, or ground sign intended for the same use as a primary sign but smaller dimensions and lettering, as allowed in Section 6.6. 20. Sign -A sign is any structure,mechanically or electrically driven, still or moving device, light, letter, figure, word, model,banner,pennant,trade flag, or representation that is designed to be seen from outside the lot on which it is erected. It advertises activities, goods,places,persons, objects, institutions, organizations, associations,businesses or events,products, services, or facilities available either on the property where the sign appears or in some other location. The definition includes electric signs in windows or doors,but does not include window displays or merchandise. A sign may be permanent or temporary. 21. Sign Size (Area) -The surface area of any sign is the entire area within a single continuous perimeter enclosing the extreme limits of lettering,representation, emblems, or other figures, together with any material or color forming an integral part of the display or used to differentiate the sign from the background against which it is placed. Structural members bearing no sign copy shall not be included. 22. Temporary Sign: A sign permitted to be used on a short-term basis for the duration of no longer than sixty(60) days unless otherwise specifically provided herein. 23.Wall Sign-Any sign affixed to, suspended from or painted on a wall,window,marquee, or parapet. 6.4 Administration and Enforcement 1. Enforcement-The Building Inspector is hereby designated as the Sign Officer and is hereby charged with the enforcement of this Bylaw. a. The Sign Officer and his duly authorized agents shall, at reasonable times and upon presentation of credentials,have the power to enter upon the premises on which any sign is erected or maintained in order to inspect said sign. b. The Sign Officer is further authorized,upon notice as herein provided, to order the repair or removal of any sign which in his judgment is a prohibited non-accessory sign, or is likely to become dangerous,unsafe, or in disrepair, or which is erected or maintained contrary to this Bylaw. The Sign Officer shall serve a written notice and order upon the owner of record of the premises where the sign is located and any advertiser, tenant,or other persons known to him having control of or a substantial interest in said sign, directing the repair or removal of the sign within a time not to exceed thirty(30) days after giving such notice. If such notice and order is not obeyed within such period of time,the Sign Officer and his duly authorized agents shall, at reasonable times and upon presentation of credentials,have the power to enter upon the premises on which said sign is erected or maintained and repair or remove, or cause to be repaired or removed, said sign. All expenses incurred by the Sign Officer and his duly authorized agents in repairing or removing any sign shall be assessable against any person who FN failed to obey said notice and order and shall be recoverable in any court of competent jurisdiction if not paid within thirty(30) days after written notice of assessment is given by the Sign Officer at any such person. 2. Permits: a. No permanent sign shall be erected, enlarged, or structurally altered without a sign permit issued by the Building Inspector. Permits shall only be issued for signs in conformance with this Bylaw. Permit applications shall be accompanied by two (2)prints of scale drawings of the sign, supporting structure and location. A copy of any relevant special permit shall also accompany the application. All ground or roof signs shall be registered and identified as required by Section 1407.0 of the State Building Code. b. Notwithstanding anything to the contrary in this Bylaw, any permanent sign authorized under this Bylaw may contain any otherwise lawful,non-commercial message which does not direct attention to a business or to a service or commodity for sale in lieu of any message or content described in the applicable regulation. 3. Non-conformance of Accessory Signs: Any non-conforming sign legally erected prior to the adoption of this provision,may be continued and maintained. Any sign rendered non-conforming through change or termination of activities on the premises shall be removed within thirty(30)days of order by the Building Inspector.No existing sign shall be enlarged, reworded, redesigned, or altered in any way unless it conforms to the provisions contained herein.Any sign which has been destroyed or damaged to the extent that the cost of repair or restoration will exceed one-third(1/3) of the replacement value as of the date of destruction shall not be repaired,rebuilt, restored or altered unless in conformity of this Bylaw. 4. Street Banners or Signs- Street banners or signs advertising a public or charitable entertainment or event,by Special Permit from the Board of Selectmen. Such a sign shall be removed within seven(7) days after the event. 6.5 Prohibitions: 1. No sign shall be lighted, except by steady, stationary light, shielded and directed solely at the sign. Internally lit signs are not allowed. 2. No illumination shall be permitted which casts glare onto any residential premises or onto any portion of a way so as to create a traffic hazard. 3. No sign shall be illuminated in any residential district between the hours of 12:00 midnight and 6:00 a.m. unless indicating time or temperature or an establishment open to the public during those hours. 4. No sign having red or green lights shall be erected within sight of a traffic signal unless approved as non-hazardous by the Chief of Police. 5. No animated,revolving, flashing, or exterior neon sign shall be permitted. 6. No pennants, streamers, advertising flags, spinners or similar devices shall be permitted, except as allowed by the board of Selectmen. 7. Corner visibility shall not be obstructed. 8. No sign shall be erected, displayed, or maintained upon any rock, tree, fence, or utility pole. 9. No sign shall be erected, displayed, or maintained if it contains any obscene matter. 10. Flags and insignia of any Government when displayed in connection with commercial promotion. 11.No sign shall obstruct any means of egress from a building. 12. Projecting signs are prohibited. 13.Non-accessory signs are prohibited except for directional signs as allowed in Section 6.6, B. FN 14.No signs shall be attached to motor vehicles,trailers or other movable objects regularly or recurrently located for fixed display. 6.6 Permitted Signs (Fee Required) A. Residence District-Accessory Signs-The following signs are allowed in a residence district as well as all other districts. 1. Primary wall and roof signs attached to or part of the architectural design of a building shall not exceed, in total area,more than ten percent(10%) of the area of the dimensional elevation of the building as determined by the building frontage multiplied by the floor to ceiling height of the individual business or as specified in applicable sections of the by-law. 2. One (1) sign, either attached or ground indicating only the name of the owner or occupant, street number and permitted uses or occupations engaged in thereon, not to exceed two (2) square feet in area. Such sign may include identification of any accessory professional office, home occupation, or other accessory uses permitted in a residence district. Ground signs shall be set back a minimum of ten(10) feet from all property lines and a minimum of forty(40) feet from all residential districts or structures. 3. One (1) sign oriented to each street on which the premises has access, either attached or ground,pertaining to an apartment development or a permitted non-residential principal use of the premises, such sign not to exceed ten(10) square feet in area. 4. One (1)unlighted contractor's sign,not exceeding twenty-five(25) square feet in area, maintained on the premises while construction is in process and containing information relevant to the project. Such sign shall be removed promptly after completion of the construction. 5. One(1)unlighted identification sign at each public entrance to a subdivision not exceeding twelve (12) square feet in area; to be removed when the subdivision roadway is accepted by the Town. 6. Ground signs shall be set back a minimum of ten(10) feet from all property lines and a minimum of forty(40) feet from all residential districts or structures. 7. Off-premises Signs: Only signs pertaining exclusively to the premises on which they are located or to products, accommodations, services or activities on the premises shall be allowed, except that an off-premises directional sign, designating the route to an establishment not on the street to which the sign is oriented, may be erected and maintained within the public right-of-way at any intersection if authorized by the Board of Selectmen or on private property if granted a special permit by the Board if Appeals. Such sign shall be authorized only upon the authorizing agency's determination that such sign will promote the public interest,will not endanger the public safety and will be of such size, location and design as will not be detrimental to the neighborhood. At locations where directions to more than one(1) establishment are to be provided, all such directional information shall be incorporated into a single structure. All such directional signs shall be unlighted, and each shall be not over four (4) square feet in area. B. Temporary Signs: Temporary signs shall be allowed as provided below, and provided that they comply with the following: (a) Unless otherwise specified in the Bylaw,temporary signs must comply with all applicable requirements for permanent signs, including issuance of a sign permit. 1. Temporary signs, of not more than twelve(12) square feet in area, erected for a charitable or religious cause;requires no sign permit and is to be removed within thirty(30) days of erection. The Building Inspector shall maintain placement controls. 2. One(1)temporary unlighted real estate sign advertising the sale, rental or lease of the premises or subdivision on which it is erected to be no larger than twelve(12) square feet. The Building Inspector shall allow a sign larger than twelve square feet if. The property FN fronts on a State Highway, such as Route 114 or Route 125 and a larger sign is needed for legibility purposes; The total area of the sign does not exceed 10% (10 percent) of the wall area it is to be located upon. Such sign shall be removed fourteen(14) days after sale, rental or lease. 3. One(1)temporary unlighted sign not larger than twenty-five(25) square feet indicating the name and address of the parties involved in construction on the premises. 4. Temporary signs not meeting requirements for permanent signs may advertise sales, special events, or changes in the nature of an operation,but shall not otherwise be used to advertise a continuing or regularly recurring business operation and shall be removed promptly when the information they display is out of date. The sign(s)must be removed within thirty(30) days of erection. 5. Temporary signs pertaining to a candidate or ballot question appearing on the ballot of an election duly called in the Town of North Andover shall require no sign permit and shall be allowed in all zoning districts. Such signs permitted by this Bylaw: (a) shall only be permitted on private property; (b) shall not exceed six(6) square feet in area per sign and shall not exceed in aggregate twenty-four(24) square feet in area per lot; (c) shall not be higher than three(3) feet above ground level; (d) shall be stationary and shall not be illuminated; 6. Temporary A-frame Sign Permit. The Building Inspector may issue a permit for the temporary placement of a freestanding A-frame/sandwich sign which(i) announces a performance, an event, or is for directional purposes; ii)must be securely anchored so as to not blow over and is professional in appearance; iii)must be removed at the close of each business day and at the expiration of the permit; iv) may not obstruct a public or private walkway, or be placed on public property. The maximum area shall not exceed eight(8) square feet on each side, and a maximum height of five (5) feet above the ground. The temporary permit may impose limiting conditions, including among other matters the number allowed at each business property location. 7. Unless otherwise specified in this Bylaw,temporary signs pertaining to other non- commercial issues shall require no sign permit and shall be allowed in all zoning districts. Such signs shall be subject to the limitations set forth in subsection(5) (a)-(e) above. 8. Identification Signs or entrance markers for a church, or synagogue shall not exceed a combined total of thirty(30) square feet and provided that there shall be no more than two (2) signs allowed on the premises. 9. Notwithstanding any other provisions of this Bylaw, signs may be erected for posting land; example,no hunting,no trespassing, etc. C. Residence Districts: Non-accessory Signs -Directional signs by Special Permit from the Board of Selectmen, limited as follows: 1. Two (2) signs for each activity,not exceeding 6"x30" in size. 2. Ground signs not exceeding eight(8) feet in height. D. Business and Industrial Districts: Accessory All signs permitted in residence districts as provided in Section 6.6(A) and 6.6(B), except that temporary real estate signs may be as large as twenty-five(25) square feet. Each owner, lessee, or tenant shall be allowed a primary and a secondary sign. Said sign may be used as ground,wall, or roof signs.No lot shall be allowed to have more than one(1) ground sign structure. 1. Primary wall and roof signs attached to or part of the architectural design of a building shall not exceed, in total area,more than ten percent(10%) of the area of the dimensional elevation of the building as determined by the building frontage multiplied by the floor to ceiling height of the individual business or as specified in applicable sections of the by-law. FN 2. One(1)permanent ground sign of not more than twenty-five(25) square feet in area and extending not more than eight(8) feet above ground level. Larger or taller signs may be allowed by Special Permit of the Board of Appeals, if said Board determines that the particular sign will not be incongruous with the district in which it is to be located nor injurious to traffic and safety conditions therein(1998/31). 3. For premises having multiple occupants, a single sign, either attached or ground, identifying those occupants. The total area of attached signs including this one, shall not exceed ten percent(10%) of wall area, and the area of any freestanding sign allowed under this paragraph shall not exceed twenty-five(25) square feet. 4. Temporary unlighted signs inside windows, occupying not more than twenty percent(20%) of the area of the window requires no sign permit. 5. No sign shall project more than one (1) foot over any public right-of-way shall be covered by appropriate liability insurance as determined by the Building Inspector and verified by a certificate of insurance filed with the Town Clerk. 6. Service stations or garages may divide the allowed wall sign area into separate, smaller wall signs indicating separate operations or departments. A freestanding ground identification sign of fifty(50) square feet with price sign incorporated is allowed. 7. For active fuel dispensing Service Stations, with multiple tenants, on the same lot: One single free standing ground identification sign of 50 square feet is allowed,which is to include within the 50 square feet, the identification of the multiple tenants on this same lot. The Service Station identification/information shall be at least 60% (may be greater) of the total free standing ground sign. Pricing information, if advertised, to also be within the allotted square footage for service stations. The maximum height(including pylons) of this free standing ground sign shall be 16 feet from ground level(1998/30). 8. Building directories(if located outside)may be affixed to the exterior wall of a building at each public entrance. Such directory shall not exceed an area determined on the basis of one (1) square foot for each establishment occupying the building. 9. Traffic Control orientational and guidance signs located on private property,up to four(4) square feet in area, displayed for purposes of direction or convenience, including signs identifying parking, fire lanes,rest rooms, freight entrances and the like. E. Shopping Centers 1. Signs are permitted in residence districts, except that temporary real estate signs may be as large as ten(10) square feet. 2. Signs attached to a building or its canopy,parallel with the facade and not projection above the roof-line, advertising the name of a firm or goods or services available on the premises, provided that the total area of all signs erected on any wall by any occupant may not exceed twenty percent(20%) of the portion of the wall area assigned to that occupant. In no case shall any occupant's sign total more than two hundred(200) square feet facing any single street. 3. For any retailing complex comprising three(3) or more enterprises on a single lot and fifty thousand(50,000) square feet floor area or more, one(1) ground sign for each street on which the development fronts, containing the name or other identification of the area occupied by the complex. Each sign shall be no larger than one hundred(100) square feet. Such sign shall not be located within ten(10) feet of any property line or the line of any way, and no part of the sign shall be more than twenty(20) feet above the ground level. 4. Temporary,unlighted signs, inside windows, occupying not more than fifty percent(50%)of the area of the window requires no sign permit. F. Office Parks 1. Signs as permitted in residence districts, except that temporary real estate signs may be as large as ten(10) square feet. FN 2. One(1) sign for each street upon which the premises has frontage, identifying a subdivision of lots for office development. This sign shall be no greater than eight(8) feet in height and no larger than twenty(20) square feet in area except where the property fronts on a high-speed, limited access highway,in which case a special exception may be granted for a larger sign if required for legibility. 3. Signs for individual properties or tenants shall be limited to a single sign no larger than three (3) square feet per tenant. Individual tenants must have Letter of Permission from property owner. The Board of Appeals may grant a Special Permit for an exception for a larger area where this will not impair legibility of other signs or be incongruous with the surroundings, based upon consideration of the number of occupants and signs per building, size of building and integration of sign and building design. G. Industrial Districts 1. Signs as permitted in residence districts, except that temporary real estate signs may be as large as twenty-five(25) square feet. The Building Inspector shall allow a sign larger than twenty-five(25) square feet if: a) The property fronts a State Highway, such as Route 114 or Route 125 and a larger sign is needed for legibility purposes; b) The total area of the sign does not exceed 10% (ten percent) of the wall area it is to be located upon. Such sign shall be removed fourteen(14)days after sale,rental or lease. 2 Signs attached flat against the wall or canopy of a building, or projecting not more than six(6) feet above such wall, advertising the name of the firm or goods or services available or produced on the premises;provided that the total area of all such sighs does not exceed twenty percent(20%) of the area of the side of the building to which they are attached or two hundred (200) square feet,whichever is less. 3 One(1) ground sign, containing the name or other identification of the use on the property, for each street on which the property fronts, each sign is limited to an area of one hundred(100) square feet. Such sign shall not be located closer than forty(40) feet to any property line or twenty(20) feet above ground level. H. Guidelines 1. The following are further means by which the objectives for signs can be served. These guidelines are not mandatory,but degree of compliance with them shall be considered by the Board of Selectmen, Planning Board, Zoning Board of Appeals in acting upon special permits authorized by the Zoning Bylaws and by the Building Inspector in issuing a sign permit authorized under this Section of the Zoning Bylaw. Efficient Communication: 1. Signs should not display brand names, symbols or slogans of nationally distributed products except in cases where the majority of the floor or lot on the premises is devoted t manufacture or sale or other processing of that specific product. 2. Premises chiefly identified by a product name (such as a gasoline or auto brand) should devote some part of their permitted sign area to also displaying the identity of the local outlet. 3. Signs should not contain selling slogans or other advertising which is not an integral part of the name or other identification of the enterprise. 4. Sign content normally should not occupy more than forty percent(40%) of the sign background, whether a signboard or a building element. 5. Signs should be simple,neat and avoid distracting elements, so that contents can be quickly and easily read. Environmental Relationship FN 1. Sign design should take into consideration the scale of the street to which the sign is oriented and the size, brightness, style,height and colors of other signs in the vicinity. 2. Sign brightness should not be excessive in relation to background lighting levels, e.g., averaging not in excess of one hundred(100) foot lamberts in the downtown or similarly bright areas and not in excess of twenty(20) foot lamberts in unlighted outlying areas. Building Relationship 1. Signs should be sized and located so as to not interrupt obscure or hide the continuity of columns, cornices,roof eaves, sill lines or other elements of building structure and where possible, should reflect and emphasize building structural form. 2. Sign material, colors and lettering should be reflective of the character of the building to which the sign relates,just as sign size should be related to building size. 3. Clutter should be avoided by not using support brackets extending above the sign or guy wires and turnbuckles. Landscaping,Buffering,Lighting 1. In Shopping Centers and Office Parks, landscaping shall be provided and maintained in accordance with planting approved by the Planning Board and incorporated as part of the plans on which the Special Permit of the Board of Appeals is based. 2. In all industrial districts, landscaping shall be provided and maintained in front yards and in side yards abutting public ways for aesthetic reasons to break up lines of buildings and for screening accessory facilities under the requirements discussed below. Specifically, in all Industrial and Business Districts, landscape screening shall be provided adjacent to: a. Abutting existing residential properties; and b. Abutting limited access highways in addition to the landscaping in front and side yards mentioned above. Landscape screening shall consist of planting, including evergreens,the plantings to be of such height depth as is needed to screen adequately from view from abutting area any unshielded light source, either inside or outside. (Section 6 amended May 6, 1996 Annual Town Meeting, Article 21) FN SECTION 7 DIMENSIONAL REQUIREMENTS 7.1 Lot Area Minimum lot areas for such uses in each district shall be as set forth in Table 2, Summary of Dimensional Requirements,which is hereby made part of this Bylaw. 7.1.1 Contiguous Buildable Area(CBA) As of April 28, 1986,the area of any new lot created, exclusive of area in a street or recorded way open to public use, at least seventy five(75)percent of the minimum lot area required for zoning shall be contiguous land other than land located within a line identified as wetland resource areas in accordance with the Wetlands Protection Act,Massachusetts General Laws, Chapter 131, Section 40 and the Town of North Andover Wetland Protection Bylaw, Chapter 178 of the Code of North Andover. The proposed structure must be constructed on said designated contiguous land area. 7.1.2 Lot Width For any lot created after May 1, 1995,the minimum width of the lot shall be a distance of one hundred (100) feet between the street frontage and the front building line The width shall be measured in a line parallel to the street. This requirement shall apply in all zones except Residence 4(R4) and Village Residential (VR); for zone R4, said minimum width of the lot shall be a distance of(eighty) 80 feet and for zone VR, said minimum width of the lot shall be a distance of(eighty) 80 feet. 7.1.3 Restrictions 1. When a fifty(50) foot straight line is drawn to divide a lot in two, and the perimeter of the smaller piece is greater than two hundred(200) feet,then such smaller piece shall not be included in the calculations when determining: lot area contiguous buildable area(CBA), or street frontage as required by the Summary of Dimensional Requirements(Table 2) of this bylaw. This restriction applies only to lots created after May 1, 1995. 2. Any lot created after May 1, 1995 shall have a lot depth of thirty(30) feet or more for at least eighty(80)percent of the minimum length of its frontage as required by the Summary of Dimensional Requirements (Table 2) of this bylaw. The lot depth shall be measured as a line drawn perpendicular to the street. 3. No lot,upon which is then located any buildings or with respect to which a permit has been issued and is then outstanding for the erection of any building, shall be subdivided or reduced in area in any manner unless said lot shall thereafter fulfill the lot area, street frontage and yard space requirements of this Bylaw except as may be permitted otherwise by the provisions of a variance granted by the Board of Appeals. If land be subdivided, conveyed, devised or otherwise transferred in violation hereof, no building permit or other permit shall be issued with reference to any of the land so transferred or to the lot(s) retained until all of such land and lots meet the requirements of this Zoning Bylaw. Any land taken by eminent domain or conveyed for a public purpose for which the land could have been taken shall not be deemed to be transferred in violation of the provisions hereof. 7.2 Street Frontage Minimum street frontage shall be as set forth in Summary of Dimensional Requirements (Table 2) and the lot line meeting these requirements shall constitute the "street frontage" for the lot. In no case shall actual street frontage at the street line be less than seventy five(75) feet; except as allowed by Section 7.2.2. Corner lots shall be required to have the required frontage only on one street. In determining the fulfillment of the minimum area and minimum street frontage of a lot required in any zoning district, there shall not be included any land within the limits of a street upon which such lot abuts, even if the fee to such street is in the owner of the lot; except that if a corner lot at its street corner is bounded in FN part by a segment of curved line not more than seventy five(75) feet in length connecting other lines bounding such lot which if extended would intersect, the area and frontage required in such lot shall be computed as if such potentially intersecting lines were so extended;but if a curved line more than seventy five(75) feet in length is the whole of any one boundary line of a lot, the minimum area and minimum frontage required shall be determined entirely within the lines bounding such lot, including such curved line. 7.2.1.Access across street frontage Access to each lot, except for corner lots,must be provided across the street frontage. If access to a lot is not across the street frontage as of the date of the adoption of this Section 7.2.1, the lot will not be considered nonconforming as to use or as to an existing structure on that lot. (1994/39) Exceptions to this requirement may be granted by the issuance of a Special Permit from the Planning Board. A street frontage access Special permit may be granted for a lot in any residential district provided that: a) The specific site is an appropriate location for access to the lot given the current and projected traffic on the roadway, and the site distance to adjacent driveways and roadways, and/or b) Special environmental conditions exit such as wetlands and/or steep slopes such that access across the street frontage would require wetland filling or extreme cutting and/or filling of slopes or would be otherwise detrimental to the environment, c) The access will not adversely affect the neighborhood; d) There will be no nuisance or serious hazard to vehicles or pedestrians; e) The access is in harmony with the general purpose and intent of this Bylaw. 7.2.2 Frontage exception Exceptions for meeting the frontage and lot width requirements required by sections 7.1.2 and 7.2 may be granted upon the approval of a Special Permit. The permit granting authority shall be the Planning Board. A street frontage and lot width exception Special Permit may be granted for a lot in any residential district provided that: a) The area of the lot exceeds by three (3) times the minimum lot area required for that district; b) The lot has a minimum continuous street frontage of not less that fifty(50) feet and a width of not less than(50) feet at any point between the street and the site of the dwelling; c) There is not more than one other such lot with frontage contiguous to it: and d) It is so located as not to block the possible future extension of a dead end street. e) The creation of the frontage exception lot will not adversely affect the neighborhood; f) The creation of the frontage exception lot is in harmony with the general purpose and intent of this Bylaw; g) No such lot as described above on which a dwelling is located, shall be hereafter reduced in area below the minimum area required in Section 7.1 (1985/16) 7.3 Yards (Setbacks) Minimum front, side and rear setbacks shall be as set forth in Table 2, except for eaves and uncovered steps. Buildings on corner lots shall have the required front setback from both streets, except in Residence 4(R4) District,where the setback from the side street shall be twenty(20) feet minimum. 7.4 Building Heights Maximum heights of buildings and structures shall be as set forth in Table 2. The foregoing limitations of height in feet in the designated zoning districts shall not apply to: 1. Farm buildings on farms of not less than ten(10) acres. FN 2. Nor shall they apply to chimneys, ventilators, skylights,tanks,bulkheads,penthouses,processing towers, and other accessory structural features usually erected at a height greater than the main roofs of any buildings. 3. Nor to domes,bell towers, or spires of churches or other buildings,provided all features are in no way used for living purposes. 4. And further provided that no such structural feature of any non-manufacturing building shall exceed a height of sixty five(65) feet from the ground. 5. Nor of a manufacturing building a height of eighty five(85) feet from the ground, or pharmaceutical manufacturing silo having a height of one hundred-fifteen(115) feet from the ground. 7.5 Lot Coverage Maximum lot coverage by buildings shall be as forth in Table 2. Lot coverage shall mean the percent of the lot covered by principal and accessory structures. 7.6 Floor Area Ratio Maximum floor area ratio (FAR) shall be as set forth in Table 2. FAR is the ratio between the total amount of building floor area on all usable floors and the area of the lot on which it is located. 7.7 Dwelling Unit Density Maximum dwelling unit density(dwelling units per acre) shall be as set forth in Table 2 7.8 Exceptions 1. The residential lot areas and frontages above required and listed in Table 2 shall not apply in any residence district to any lot of less area or less frontage than above required if such lot be not adjoined by other land of the same owner, available for combination with or use in connection with such lot,provided that the applicant for a building permit on any such lot shall show by citations from the Essex County Registry of Deeds incorporated in or attached to such application that such lot was lawfully laid out and duly recorded by plan or deed prior to January 9, 1957 and provided that on such a lot there shall be kept open and not built upon a front yard and a rear yard each not less than 20 feet deep, and two side yards, each not less than 12 feet wide; and further provided that such lot shall have a minimum street frontage of 50 feet and a minimum lot area of 5,000 square feet. 2. In Residence 4(R4)Districts only,two or more vacant lots,mutually adjoining,may with a Special Permit from the Board of Appeals be permitted to be combined into a new lot or lots of not less than 10,000 square feet area each, and with not less than 100 feet street frontage,provided it be shown to the Board of Appeals that each such lot was lawfully laid out and duly recorded by plan or deed prior to January 9, 1957 and the Building Inspector shall permit the construction of one single family dwelling on each such 10,000 square foot lot. 3. As described in M.G.L. Ch. 40A,no amendment to this Zoning Bylaw shall apply to land shown on an approved definitive subdivision plan as defined by the Subdivision Control Law, for the length of time described in M.G.L. Ch 40A. 4. As described in M.G.L. Ch. 40A, no amendment to this Zoning Bylaw shall affect the use of land shown on an endorsed Approval Not Required Plan, as defined by the Subdivision Control Law, for the length of time described in M.G.L. Ch 40A. (Section 7 rewritten and reorganized May 1, 1995 Annual Town Meeting,Article 41) FN SECTION 8 SUPPLEMENTARY REGULATIONS 8.1 Off Street Parking and Loading 1. Intent of Parking Requirements. It is the intention of this Bylaw that all structures be provided with sufficient off-street parking space to accomplish the following: a) Meet the needs of persons employed at or making use of such structures; b) Maximize the efficiencies of parking facilities and uses; c) Ensure that any land use involving the arrival, departure, or storage of motor vehicles on such land be so designed as to reduce hazards to pedestrians and abutters; d) Reduce congestion in the streets and contribute to traffic safety by assuring adequate space for parking of motor vehicles off the street; e) Provide necessary off-street loading space for all structures requiring the large-volume delivery of goods; and f) Promote better site design through the use of flexible parking standards. 2. Applicability. a) No permit or certificate of occupancy shall be issued by the Inspector of Buildings for (1) a new structure, or(2) change of use, or(3) the enlargement, reconstruction, alteration, or relocation of an existing structure, or (4) the development of a land use, unless off-street parking and loading facilities have been laid out and approved in accordance with the requirement set forth in Section 8.1. b) The Planning Board shall be the Special Granting Authority (SPGA) for all Special Permits under Section 8.1.9 and parking facilities that require a Site Plan Review Special Permit under Sections 8.3 and 10.3 of this Bylaw. 3. Special Regulations a) Any use in existence or lawfully begun on the effective date of this Section is not subject to these parking requirements, but any parking facility thereafter established to serve such use may not in the future be reduced below the requirements contained in this Section. b) Changes of use of a structure that does not conform to these parking requirements are permitted without being subject to these requirements provided that the new use does not require more parking than the former use and the property has been vacant or unoccupied for no more than three(3) years. c) If the Inspector of Buildings is unable to identify a use with one (1) or more of the uses in the schedule below, an application shall be made to the Planning Board for the purpose of determining a sufficient quantity of parking spaces to accommodate the vehicles of all customers, employees, visitors, occupants, members or clients consistent with the provisions contained in the schedule below. 4. Off-Street Parking General Requirements FN a) Number of Spaces Required. In all districts, unless otherwise stated herein, off-street parking spaces shall be provided and maintained in connection with the construction, conversion, or increase in units or dimensions of buildings, structures or use, such spaces to be provided in at least the following minimum amounts provided in the following Table of Off-Street Parking Regulations and accompanying notes below. Table of Off-Street Parking Regulations Use Parking Spaces Required Residential Single-Family Dwelling Unit Multi-FamilyDwellin Unit 2 per dwelling unit Studio 1welling unit One Bedroom 1.5 per elling unit Two or More Bedrooms 2 per dwelling unit Accessory Dwelling Unit 1 space per dwelling unit Sleeping Room 1 space per unit or room;plus 2 for owner/manager 1.25 per guest room;plus 10 per ksf restaurant/lounge;plus 30 per ksf Commercial Lodgings meetingibanquet room(<50 ksf per guest room)or 20 per ksf meeting/banquet room >50 per guest room Elderly Housing Independent Unit 0.6 per dwelling unit;plus 1 per 2 em to ees Elderly Housing Assisted Living 0.4 per dwelling unit;plus 1 per 2 employees Group,Convalescent,and Nursing Homes 1 per room;plus 1 per 2 employees Day Care Center 0.35 perperson licensed capacity) 0.4 per employee;plus 1 per 3 beds,plus 1 Hospital/Medical Center per 5 average daily outpatient treatments; plus 1 per medical staff,plus 1 per student/faculty/staff Retail/Service Grocery(Freestanding) 6.0 per ksf GFA Discount Superstore/Clubs(Freestanding) 6.0 per ksf GFA Home Improvement Superstores 5.0 per ksf GFA Other Heavy/Hard Good (Furniture, Appliances, 3.0 per ksf GFA Building Materials,etc. Personal Care Facilities 2 per treatment station,but not less than 4.3 per ksf GFA Coin-Operated Laundries 1 er 2 washing and drying machines 2.7 per ksf GFA interior sales area,plus 1.5 Motor Vehicle Sales and Service per ksf GFA interior or storage/display area, lus 2 er service ba Motor Vehicle Laundries/Car Wash 2,plus 1 per each 2 peak shift employees Other Retail Not Otherwise Listed Above 3.5 per ksf GFA Food and Beverage IN Restaurant(non-fast food and/or with no drive- 15.0 per ksf GFA through facility) Fast Food 15.0 per ksf GFA Fast Food with-drive through facility) 12.0 per ksf GFA Office and Business Services Data Processing/Telemarketing/Operations 6.0 per ksf GFA Medical Offices multi-tenant 4.5 per ksf GFA Clinic(medical offices with outpatient treatment:no 5.5 per ksf GFA overnight stays) Veterinary Establishment,Kennel or Pet Shop or 0.3 per ksf GFA Similar Establishments Bank Branch with Drive-in 5.5 per ksf GFA Funeral or Undertaking Establishment 0.05 per ksf GFA Other Business or Office Uses Not Otherwise Listed 3.0 per ksf GFA Above Industrial R&D establishment,manufacturing,industrial 0.8 per ksf GFA services,or extractive industry Industrial 2.0 per ksf GFA Manufacturing/Light Industrial(Single-Use) 1.5 per ksf GFA Industrial Park(Multi-tenant or mix of service, 2.0 per ksf GFA warehouse Warehouse 0.7 per ksf GFA Storage 0.25 per ksf GFA Other Industrial and Transportation Uses Not As determined by the Planning Board,but Otherwise Listed not less than 0.25 per ksf GFA GovernmentA and Educational Elementary,and Secondary Schools 0.35 per student;plus 1 per 2 employees College University Determined by parking study specific to sub'ect institution -Cultural/Recreational/Entertainment Public Assembly 0.25 per person in permitted capacity Museum 1.5 per 1,000 annual visitors Library 4.5 per ksf GFA Religious Centers 0.6 per seat Cinemas Single-Screen: 0.5 per seat;Up to 5 screens: 0.33 per seat; 5 to 10 screens: 0.3 per seat Theaters liveperformance) 0.4 per seat Arenas and Stadiums 0.33 per seat 50 per nine(holes);plus the parking Golf Course or Country Club requirements for food or beverage uses described above Health Clubs and Recreational Facilities 2 per player or 1 per 3 persons permitted capacity FN Accessory Uses 1 per room used for office,or occupation Home Occupation or Home Office space;plus 1 per non-resident employee; lus 1 er dwelling unit Notes: 1. ksa equals 1,000 square feet. 2. Where the computation of required parking spaces results in a fractional number of 0.5 or above,the required number of parking spaces shall be rounded up to the next whole number. 3. Where fixed seats are not used in a place of assembly,each fifteen(15)square feet of floor area in the largest assembly area shall equal one(1)seat. 4. Where uses are of the open-air type and not enclosed in a structure, each square foot of lot devoted to such use shall be considered to be equivalent to one fifth of a square foot of gross floor area. 5. Where development of a site results in the loss of on-street parking spaces, the number of on-street parking spaces lost shall be provided on the site, in addition to the number of spaces required for the use unless otherwise stated herein. 6. The Planning Board shall have the discretion to allow between 4- 6 parking spaces per 1,000 square feet of Gross Floor Area for retail development in the Village Commercial District. 7. In appropriate circumstances,where the provision of adequate off-street parking is not otherwise feasible,the Planning Board may include on-street parking within the determination of adequate parking arrangements for a particular use,particularly in the so-called Downtown Area which for the purposes of this Section shall be defined as the following areas:(i)Main Street from Sutton Street to Merrimac Street,including 200 feet from Main Street on the following side streets;Waverley Road,First Street, Second Street, and School Street; (ii) Sutton Street from Main Street to Charles Street;(iii)Water Street from Main Street to High Street;and,(iii) High Street from Water Street to Prescott Street. b) Accessible Parking. Parking facilities shall provide specially designated parking stalls for persons with disabilities in accordance with the Rules and Regulations of the Architectural Access Board, as amended (521 C.M.R.) implemented by the Architectural Access Board of the Commonwealth of Massachusetts Executive Office of Public Safety and Security or any agency superseding such agency. Accessible parking shall be clearly identified by a sign stating that such parking stalls are reserved for persons with disabilities. Said accessible parking shall be located in the portion of the parking lot nearest the entrance to the use or the structure, which the parking lot serves. Adequate access for persons with disabilities from the parking area to the structure shall be provided. To the extent that any provision of this Section 8.1 conflicts with the Rules and Regulations of the Architectural Access Board (521 CMR), the Rules and Regulations of the Architectural Access Board shall govern. 5. Design Standards All required parking areas shall have minimum dimensions as follows: a) Dimensions of Parking Spaces and Maneuvering Aisles. On any lot in any district, parking spaces and maneuvering aisles shall have the minimum dimensions set for the in the following table and Section 8.1,unless specifically stated elsewhere in this Bylaw and/or as modified upon the recommendation of the Planning Board. Minimum Parking Space and Aisle Dimensions for Parking Lots (in feet) FN b) Vehicular and Pedestrian Circulation. Pedestrian walkways, driveways, and parking areas shall be designed with respect to topography, integration with surrounding streets and pedestrian ways, number of access points to streets, general interior circulation, adequate width of drives, and separation of pedestrian and vehicular traffic so as to reduce hazards to pedestrians and motorists. c) Entrance and Exit Driveway. i) Single-family dwellings shall have a minimum driveway entrance of twelve (12) feet. ii) For facilities containing fewer than five stalls, the minimum width of entrance and exit drives shall be twelve (12) feet for one-way use and eighteen (18) feet for two-way use, and the maximum width twenty(20) feet. iii) For facilities containing five (5) or more stalls, such drives shall be a minimum of twelve (12) feet wide for one-way use and twenty (20) feet wide for two-way use. The minimum curb radius shall be fifteen(15) feet. The maximum width of such driveways at the street line shall be twenty-five(25) feet in all districts. iv) The Planning Board may modify such width and radius limitations when a greater width would facilitate traffic flow and safety. All such driveways shall be located and designed so as to minimize conflict with traffic on public streets and provide good visibility and sight distances for the clear observation of approaching pedestrian and vehicular traffic. d) Surfacing,Drainage, and Curbing. Parking areas shall be graded, surfaced with asphalt, concrete, or other suitable non-erosive material, and drained in a manner deemed adequate by the Planning Board to prevent nuisance of erosion or excessive water flow across public ways or abutting properties, and natural drainage courses shall be utilized insofar as possible. Curbing, with the addition of guardrails wherever deemed necessary by the Planning Board, shall be placed at the edges of surfaced areas, except driveways, in order to protect landscaped areas and to prevent the parking of vehicles within required setback areas. Entrance and exit driveways shall be clearly defined by curb cuts, signs, and striping.All curbing installed within the public way of such driveways shall be of granite. Design standards and specifications for parking surfacing, drainage and curbing shall be those set forth in the Rules and Regulations Governing the Subdivision of Land in the Town of North Andover, as amended, unless waived or modified by the Planning Board in accordance with Section 8.1.8. e) Loading Bay Requirements. i) In all districts, unless otherwise stated herein, off-street loading spaces shall be provided and maintained in connection with the construction, conversion, or increase in units or dimensions of buildings, structures or use, such spaces to be provided in at least the following minimum amounts provided below. FN Table of Off-Street Loading Regulations Principal Use First Loading Facility Required For One.Additional Loading Facility Required Area Show%Below For Area Shown Below Dormitory and Hotel/Motel Institutional Uses 10,000 50,000 Recreation and Entertainment Restaurant and Fast Food Office Uses 15,000 50,000 Retail Services 5,000 20,000 Personal and Consumer Services 5,000 25,000 Vehicular Services Industrial Uses 10,000 25,000 Wholesale and Storage Uses ii) Unless modified by the Planning Board pursuant to Section 8.1.8 all required loading facilities shall have a minimum dimensions of twelve (12) feet wide, twenty-five (25) feet in length, fourteen(14) feet in height clearance, and located, arranged, and of sufficient number to allow service by the type of vehicle customarily excepted for the use while such vehicle is parked completely clear of any public way or sidewalk. iii) The requirements of this section shall apply to individual users of new and substantially altered structures, provided that when a building existing on the effective date of this Bylaw is altered or expanded to increase the gross floor area by at least five thousand(5,000) square feet, only the additional gross floor area shall be counted toward the off-street loading requirements. f) Lighting of Parking Areas. All artificial lighting used to specifically illuminate any parking space, loading bay, maneuvering space, or driveway shall be so arranged that all direct rays from such lighting fall entirely within the parking or loading area and shall be shielded so as not to shine upon abutting properties or streets. The level of illumination of lighting for parking and loading areas shall be low so as to reduce the flow of ambient lighting perceptible at nearby properties or streets. 6. Location and Layout of Parking Facilities. a) Proximity to Principal Use Required off-street parking spaces and loading bays shall be provided on the same lot as the principal or accessory use they are required to serve, except as allowed under Section 8.1.8(d). b) Parking in Structures. Require off-street parking spaces or loading bays may be wholly or partly enclosed in a structure. When partly enclosed in a structure, such as in a building on support beams or stilts which are readily visible from a street, all sides of such a building directly facing streets must be fully enclosed with fixed building materials and/or sufficient natural buffering so as to screen the structured parking areas from the streets. c) Parking on Rights-of-Way. No parking area or aisles shall be laid out on land, which is reserved as a vehicular right-of-way, whether developed or undeveloped, and whether public or private unless otherwise permitted as provided in Section 8.1.4. d) Parking in Required Setbacks. FN No unenclosed parking area shall be allowed within five (5) feet of a front lot line except on a residential driveway. e) Village Commercial District. i) Parking lots shall be provided only at the side or to the rear of the buildings. The Planning Board may, at their discretion, allow up to 50 spaces, or 25% of the total parking, whichever is greater, to be located to the front of the structure as long as all other dimensional criteria are adhered to. ii) No single section of parking may contain more than twenty-five percent (25%) of the total proposed parking spaces or more than fifty (50) spaces, whichever is less. As a method of division, 6' wide parking lot islands shall be installed to provide the proper break between adjacent parking lots. For projects which require less than fifty (50) spaces in total, the Planning Board may allow fifty (50) spaces to be located together if an effective visual buffer is provided. Each landscaped island must be 6' in width at the minimum. In locations where the possibility exists to enlarge the entire island or portions thereof, the Planning Board would recommend that such measures be taken. f) Residential Zoning Districts. i) For single- and multi-family dwellings, the front yard shall not be used for parking for accessory uses. ii) Parking or outdoor storage of one(1) recreational vehicle (camper, etc.) and one (1) boat per dwelling unit may be permitted in an area to the rear of the front line of the building. All other recreational vehicles and boat storage(if any) shall be within closed structures. iii) Garaging of off-street parking of not more than four (4) motor vehicles per dwelling unit may be permitted, of which four (4) motor vehicles, not more than two (2) may be commercial vehicles other than passenger sedans and passenger station wagons, but not counting farm trucks nor motor-powered agriculture implements on an agriculturally active farm or orchard on which such vehicles are parked. 7. Exceptions. The regulations of this section shall not apply to residential and non-residential uses or structures whose minimum parking under the above schedule would amount to five(5)parking spaces or less. 8. Special Permits. The Planning Board as SPGA, may grant a Special Permit modifying certain parking/loading standards of this Section and/or Section 8.4 (Screening and Landscaping Requirements for Off- Street Parking), but only in the specific circumstances listed under "a" through "h" below. The SPGA may grant such special permit only when: (a)consistent with the purposes set forth in Section 8.1; (b) making the findings and determinations set forth in Section 10.3; (c) making a finding that the requested relief falls within one or more of the categories for the specific relief requested (any of cases "a" through "h" below); and, (d) upon a determination that the relief does not cause detriment to the surrounding neighborhood based upon any of the following applicable criteria: (i) Increase in traffic volumes; (ii) Increased traffic congestion or queuing of vehicles; (iii) Change in the type(s) of traffic; (iv) Change in traffic patterns and access to the site; (v) Reduction in on-street parking; and/or, (vi) Unsafe conflict of motor vehicle and pedestrian traffic. If a proposed development or project seeking a Special Permit pursuant to this Section 8.1.8 also requires the granting of a Site Plan Approval Special Permit pursuant with Section 8.3 (Site Plan FN Review), the conditions and requirements under this Section 8.1 shall be incorporated into and combined as a single application, review, and approval process for a Site Plan Review Special Permit issued in accordance with Section 8.3. The surface of the area where parking spaces may be reduced under a Special Permit for this section shall be suitable landscaped but shall not be used for purposes of satisfying the Usable Open Space requirements under the Zoning Bylaw. Circumstances under which the SPGA may grant a Special Permit pursuant to this Section 8.1.8 are as follows: a) Modification of Parking Requirements for Non-Conforming Structures, Lots and Uses. Where the total number of new parking spaces required by this Bylaw is five (5) or fewer for lots or sites that are determined by the Inspector of Buildings to be nonconforming with respect to parking, as specified in Section 8.1. b) Modification of Parking/Loading Area Design Standards. Where the design of a parking lot, loading area or aisle width differs from the provisions of Sections 8.1.5 or other parking provisions in this Zoning Bylaw, provided such design is prepared by a certified professional engineer or architect in the case of a parking garage or other structure, or by a certified professional engineer, architect or landscape architect in the case of a parking lot. Modification of parking design standards may be permitted to allow "Tandem Parking" (defined as two parking spaces placed one behind another in single file) on a temporary basis for purposes including but not limited to valet parking for restaurant uses, for employee parking, or other purposes upon such terms and conditions as may be acceptable to the Planning Board. c) Municipal Parking Facility. To allow the substitution of space on a particular lot with parking spaces located within a municipal parking lot to satisfy the parking requirements of this Section 8.1.4, provided the municipal parking lot where such parking spaces are located is within a distance of five hundred (500) feet of the building or use (measured from property line to property line), which is intended to be served and demonstration that doing so will not exceed the cumulative peak demand of said municipal parking lot in a manner which is inconsistent with the objectives of Section 8.1. d) Parking on a Separate Lot/Satellite Parking. i) Required off-street parking facilities shall be provided on the same lot or premises as the principal use they are intended to serve, or on a lot in the same ownership adjacent to such use. When practical difficulties, as determined by the SPGA, preclude the establishment of the required parking spaces on such lot or premises (or lot or premises adjacent thereto), the SPGA may allow the establishment of parking on such other lot upon such terms and conditions as the SPGA may deem necessary to ensure the continued availability of such spaces. ii) Where the applicant does not own such other lot, the applicant shall provide executed instruments establishing to the satisfaction of the SPGA that sufficient legal interest has been acquired in such premises to assure their availability for required parking as long as the use served is in existence. The provision of satellite(remote)parking areas,provided that: 1. The satellite parking spaces will be used solely by the employees and, where practicable, the clientele of the commercial use; 2. The off-site parking spaces shall be located to adequately serve the proposed use and shall be within six hundred (600) feet of the property served for clientele of the commercial use as measured from property line to property line; and, FN 3. Off-site parking for employees of the business may be located within a distance of one thousand two hundred (1,200) feet, provided that shuttle vehicle arrangements are provided as a condition of the approval. e) Common Parking Areas and Multiple Use Facilities. i) Notwithstanding the normal provisions of Section 8.1.4, where two or more activities or uses provide the required parking or loading in a common parking facility or loading area, the number of parking spaces or loading bays ordinarily required may be reduced below the sum of the spaces or bays required for separate activities or uses, if it can be determined that the hours, days, or peak parking or loading demand for the uses are so different that a lower total will provide adequately for all uses or activities served by the parking facility or loading bay, and that the location of the parking facility in relation to the uses proposed to be served by it is appropriate. ii) A Special Permit authorizing such deviation from the normal standard shall only be granted upon submission of calculated parking demand for combined land uses based on methodologies and indices of the Institute of Transportation Engineers, Urban Land Institute, or other recognized methodology approved in writing by the Planning Board. A formal parking demand study may be waived by the SPGA for small developments where there is established experience with the land use mix and its impact is expected to be minimal. iii) Where such facilities are shared by more than two (2) owners, the applicant shall provide executed and filed instruments with the Registry of Deeds establishing to the satisfaction of the SPGA that sufficient legal interest has been acquired in such premises to assure that the property(s) have a shared parking arrangement or peak hour parking arrangement and the availability for required parking as long as the uses served are in existence. f) Land Banked Parking. To reduce the area of impervious surface, encourage open space, accommodate future changes in land use and/or ownership, and shifts in shared parking demand, up to forty percent(40%) of the land area that would otherwise be needed to provide the required amount of parking may be land banked or set aside on the site to provide for the future construction of a parking area. The parking facility shall be designed/engineered to enable the site to satisfy the requirements of the Section 8.1 to meet the peak demands of the project(s) or use(s). Where it can be demonstrated by the applicant in the future that there is a need to convert all or a portion of the land-banked parking facilities because parking demand is in excess of 80%of parking supply on the property, then the applicant may convert the requisite number of land banked parking spaces to functioning parking spaces. For purposes hereof,parking demand shall be demonstrated through a report of the applicant's(or the then current owner's traffic engineering consultant), as the case may be, certifying that at any time during the four-hour peak demand period on a weekday or Saturday, the actual parking demand and utilization is in excess of 80% of parking supply on the property, with actual field site observations being conducted on two separate days during any consecutive 45-day period. Upon the Planning Board's determination the applicant has established the requisite parking need, and upon submission of the report to the Planning Board, the Planning Board may allow the conversion of all or a portion of the land-banked parking. g) Reduction in Parking. Where it can be demonstrated that a use or establishment needs a lesser number of parking spaces or loading bays than is required by Section 8.1.4, such as housing for persons with disabilities, low rate of vehicle ownership, the availability and implementation of transportation demand management alternatives, or other such circumstances as may be deemed appropriate by FN the Planning Board, the number of such parking spaces or bays may be reduced by not more than thirty-five percent (35%). An applicant shall submit documentary evidence satisfactory to the SPGA that the parking or loading experience of the specific use justifies a lesser number of spaces or bays. A Special Permit granted under this authority shall lapse upon change to a different type of use unless otherwise determined by the Planning Board, and shall not be considered to constitute a legal nonconformity with respect to parking for any new use. h) Modification of Screening and Landscaping Requirements for Off-Street Parking. Where it can be demonstrated to the satisfaction of the Planning Board that a plan for screening and landscaping would be enhanced without detriment to the surrounding neighborhood through the waiver or modification of one or more of the screening, landscaping and other criteria set forth under Section 8.4. 8.2 Automobile Service Stations and Other Automobile Services Automobile service and filling stations, automobile repair shops,body shops and painting shops,tire stores,radiator shops or any of their appurtenances or accessory uses shall not be erected,placed or located within fifty(50)feet of any residence district or residence structure. In addition,the use or structure shall conform to the following requirements (in addition to district requirements): 1. The minimum frontage on a street shall be one hundred and fifty(150) feet. 2. The maximum width of driveways and curb cuts measured at the street lot line or lines shall be thirty(30) or barriers may be interrupted by normal entrances or exits and shall not be required with ten(10) feet of a street lot line. 8.3 Site Plan Review 1. Purpose a) The purpose of this section is to protect the health, safety, convenience and general welfare of the inhabitants of the Town by providing for a review of plans for uses and structures which may have significant impacts,both within the site and in relation to adjacent properties and streets; on pedestrian and vehicular traffic. This review considers the impact on public services and infrastructure; environmental,unique and historic resources; abutting properties; and community character and ambiance. b) This section of the Zoning Bylaw is adopted pursuant to Chapter 40A, Section 9.All Site Plan Review applications submitted under the provisions of this section shall be reviewed by the Planning Board as a Special Permit. c) Sites and developments to which this section applies shall comply with the regulations of this section as well as those other applicable Town Bylaws, or the requirements of the Commonwealth of Massachusetts,prior to any construction being undertaken in the Town of North Andover. 2. Developments Which Require Site Plan Review a) Site Plan is required when: i) Any new building(s)or construction which contains more than two thousand(2,000) square feet of gross floor area which is undertaken on land within the Town of North Andover or results in the requirement of five(5)or more new or additional parking spaces; ii) Any construction which results in the addition of more than two thousand(2,000) square feet of gross floor area to an existing structure; or results in the requirement of five(5) or more new or additional parking spaces; iii) Any construction, site improvements,new uses in existing structures or developments which contain new processes not normally associated with the existing use and which result in changes in the potential nuisance to adjacent property; traffic circulation; storm FN water drainage onto or off of the site; and/or the application of the parking standards of Section 8.1 indicate the need for five (5)or more new or additional parking spaces. iv) The construction of any new wireless service facility on a previously permitted facility as set fourth in Section 8.9(3)(a)(ii)Wireless Service Facilities Use Regulations (1998/38). b) The following development(s) are exempt from Site Plan Review: i) Single family dwelling(s) and two family dwelling(s); ii) Small structures or additions which do not exceed two thousand(2,000) square feet of gross floor area and do not require five (5) or more parking spaces. iii) Routine repairs and maintenance that do not exceed the provisions of Section(1)(c). c) Waiver of Site Plan Review i) When in the opinion of the Planning Board, the alteration or reconstruction of an existing structure or new use or change in use will not have a significant impact both within the site and in relation to adjacent properties and streets; on pedestrian and vehicular traffic;public services and infrastructure; environmental,unique and historic resources; abutting properties; and community needs,the Planning Board may determine, without a public hearing,that submission of a site plan review application is not required. ii) The applicant must request a waiver from Site Plan Review in writing and may be required to submit supporting documentation that Site Plan Review is not required. The waiver request will be discussed at a regular session of the Planning Board. 3. Site Alteration-Violation of the Bylaw a) No building permit, site clearing, filling, grading, material deliveries or construction shall be initiated on any site which this section applies until Site Plan approval as required by this section is obtained. b) Nothing herein shall be construed,however,to prohibit such clearing or altering as may be necessary for purposes of conducting pre-development studies, such as geotechnical tests, soil borings, wetlands determination,percolation tests for septic systems as required by the Board of Health, or other similar test as required in order to fulfill a requirement of any Town Bylaw or regulations of the Commonwealth. 4. Procedures a) The site plan approved by the Planning Board becomes the official development plan for a site within the Town of North Andover. Town permits are issued or withheld based upon compliance with the approved site plan. The approved site plan is legally binding and can only be changed or adjusted in compliance with the provisions contained in Subsection VIII Revisions to Approved Site Plans. b) Any proposed development meeting any of the criteria set forth in Subsection II Developments which require Site Plan Review, shall be subject to Site Plan Review and submit a Special Permit application to the Planning Board. c) An applicant for site plan review shall file an application form, fee, eight copies of the site plan, and any additional information as may be required(See Subsection V Information Required),with the Planning Department. Once the applicant is deemed complete, the Planning Department will forward the application to the Town Clerk. An application will not be deemed complete until all required information and fees are submitted. The time periods set forth in this Zoning Bylaw and M.G.L. Ch.40A will not start until the application has been deemed complete and submitted to the Town Clerk. FN d) The Planning Board shall have the authority to require that the applicant pay for necessary professional services required to adequately review and analyze the contents of any site plan or impact study requested by the Board. 5. Information Required a) Special Permit Application Form, along with any fees as may be set by the Town Bylaw; b) Drawings prepared at a scale of one inch equals forty feet(1"=40') or larger, or at a scale as approved in advance by the Town Planner. c) All site plans shall be prepared by a certified architect, landscape architect, and/or a civil engineer registered in the Commonwealth of Massachusetts. All landscape plans shall be prepared by a certified landscape architect registered in the Commonwealth of Massachusetts. All building elevations shall be prepared by a certified architect registered in the Commonwealth of Massachusetts. All plans shall be signed and stamped; d) The times for submission of the site plans for review by the Planning Board are specified in Section 10.3 of the Zoning Bylaws (Special Permit Regulations) e) The following information must be submitted along with the application: i) NORTH ARROW/LOCATION MAP: A north arrow and a location map showing surrounding roadways and land uses adjacent to the site(1"=1500'). Location Map should show at least one intersection of two existing Town roadways. ii) SURVEY OF LOT/PARCEL: A boundary survey conforming to the requirements of the Essex County Registry of Deeds Office. The survey shall be dated and include any revision made to the survey or site plan.Any change in the survey shall be recorded before site plan approval may be granted. iii) NAME/DESCRIPTION OF PROJECT: The name of the development and the names, addresses and telephone numbers of the project listing tenants, land uses, development phases, or other pertinent information necessary to evaluate the proposed development plan. iv) EASEMENTS/LEGAL CONDITIONS: Identification of easement(s) or legal encumbrances(s)that are related to the sites physical development, and a listing of any condition(s)placed upon the site by the Board of Appeals, Planning Board, Conservation Commission, or any public body or agency,with the authority to place conditions on the sites development. v) TOPOGRAPHY: The present and proposed topography of the site,utilizing two foot(2') contour intervals. The contours shall extend at least fifty(50') feet beyond the site boundaries by estimation of the professional submitting the plan. vi) ZONING INFORMATION: All applicable Zoning Bylaw information shall be provided regarding the site's development. This information shall be placed in a table and list all parking, setbacks,percent of lot coverage, floor-area-ratio,number of dwelling units,total amount of square feet, size of signs and any other applicable zoning information necessary for the proper review of the site plan by the Town Planner and Planning Board. vii) STORMWATER DRAINAGE: All storm water drainage control facilities utilized by the site shall be shown on the site plan. Storm water drainage calculations which support the design of the control facilities shown the plan shall be submitted to the Department of Public Works for review and approval. Calculations shall show a mitigation of run-off to zero of the 2, 10, and 100-year storm event. viii) BUILDING LOCATION: Identification of all existing and proposed structure(s) located on the site. The number of stories, overall height in feet and gross floor area in square feet of all structure shall be indicated. FN ix) BUILDING ELEVATION: A drawing of the exterior of the building, as viewed from the front(street view)must be submitted. The Planning Board may request side and rear views if relevant to the Board's review. This drawing must be at least 8" x 11" in size. x) LOCATION OF PARKING/WALKWAYS: Identification of the location of all existing and proposed parking and walkways areas, including curb cuts that will be used to access the site from adjacent roadways, or access points. xi) LOCATION OF WETLANDS/NOTICE OF INTENT: All resource areas as defined in M.G.L. Chapter 131, Section 40 and the Town's Wetland Bylaw, shall be shown on the site plan. The applicant shall file a Notice of Intent with NACC concurrently with the application to the Planning Board for Site Plan Review. xii) LOCATION OF WALLS/SIGNS: Identification of the location,height and materials to be used for all retaining walls and signs located on the site. Signs will be reviewed using the guidelines set forth in Section 6.7 (H)of the Zoning Bylaw. xiii) LOCATION OF ROADWAYS/DRIVES: Identification of all right-of-ways and driveways including the type of curb and gutter to be used, and their dimensions. Distances to all the nearest roadways and/or curb cuts shall be shown for both sides of any streets which is adjacent to the site. xiv) OUTDOOR STORAGE/DISPLAY AREAS: Identification of the location and type of outdoor storage and display areas on the site. xv) LANDSCAPING PLAN: Identification of the location and landscape schedule of all perimeter and interior landscaping, including but not limited to proposed paving materials for walkways, fences, stonewalls and all planting materials to be placed on the site. In addition, all existing trees over 12 inches DBH,to be saved or removed shall be shown on the site plan.Any landscaping required by the Town Bylaws shall be indicated on the site plan in tabular form showing the amount required and the amount provided. xvi) REFUSE AREAS: Identification of the location of each outdoor refuse storage area, including the method of storage and screening. All refuse areas must be fully enclosed. xvii) LIGHTING FACILITIES: Identification of the proposed illumination, indicating the direction and the degree of illumination offered by the proposed lighting facilities, including an example of the light fixture to be used. xviii) DRAINAGE BASIN STUDY: A detailed hydrology study for the site. Included in this study is the proposed storm water run-off rates into the existing drainage system and its potential down-stream impact on the existing drainage system. xix) TRAFFIC IMPACT STUDY: Identification of existing traffic levels, along with the expected traffic impacts to occur based upon the proposed project. Projects which access state highways, a traffic impact study shall be filed with MEPA concurrently with the Planning Board review. A copy of the MEPA study shall be filed with the application to the Planning Board. xx) COMMONWEALTH REVIEW: Any information required and submitted to any agency of the Commonwealth, shall be filed with the Planning Board upon the initial submission of the project for Board review. xxi) UTILITIES: All utilities, including water line locations, sewer line locations and profiles, and storm drainage systems; xxii) FISCAL IMPACT: Projections of costs rising from increased demand for public services and infrastructure;provisions of benefits from increased tax revenues, employment and infrastructure improvements; and impacts on adjacent property values. xxiii) COMMUNITY IMPACT: Analysis of the project's impact on the surrounding neighborhood in terms of architectural consistency,pedestrian movement and overall character; impacts on nearby historic structures or site; and an evaluation of the proposed project's consistency ad compatibility with existing local and regional plans. FN f) If the site plan review application is for the construction of any new wireless service facility on a previously permitted facility as set fourth in Section 8.9(3)(a)911) Wireless Service Facilities Use Regulations, the information required by Section 8.9(5)must also be submitted. The SPGA may grant a waiver from these submittal requirements if it finds that such information is not needed for a thorough review of a proposed personal wireless service facility(1998/38). 6. Review Criteria/Design Guidelines a) The following criteria and design guidelines shall be used by the Planning Board in evaluating the site plan review and all information submitted as part of the application. i) General a) Conformance with all appropriate provisions of the Zoning Bylaw. b) Protection of abutting properties from detrimental site characteristics. ii) Environmental a) Protection of unique or important natural,historic or scenic features. b) Adequacy of proposed methods of refuse disposal. c) Ability of proposed sewage disposal and water supply systems within and adjacent to the site to serve the proposed use. d) Adequacy of the proposed drainage system within and adjacent to the site to handle the increased runoff resulting from the development. e) Provision of adequate landscaping, including the screening of adjacent residential uses, provision of street trees, landscape islands in the parking lot and a landscape buffer along the street frontage. f) Adequacy of the soil erosion plan and any plan for protection of steep slopes,both during and after construction. g) Protection of adjacent properties by minimizing the intrusion of lighting, Including parking lot and building exterior lighting. h) The proposed development must not present a demonstrable adverse impact on the surrounding area resulting from excessive noise, dust, smoke, or vibration which are higher than levels now experienced from uses permitted in the surrounding area. iii) Design a) Buildings shall be located with respect to setbacks placement of parking landscaping and entrances and exits with surrounding buildings and development. b) The buildings shall relate harmoniously to each other in architectural style,the location and building exits and entrances. c) Screening shall be provided for storage areas, loading docks, dumpsters,rooftop equipment,utility buildings and similar features. d) Electric,telephone, cable t.v., and other such lines and equipment must be placed underground. e) Demonstrate that the scale,massing and detailing of buildings are compatible with those prevalent in the surrounding area. iv) Traffic/Parking a) The location and number of curb cuts shall be minimized to reduce turning movements, and hazardous exits and entrances. b) Provision for access to adjoining properties shall be provided as appropriate. c) Driveways shall be located opposite each other wherever possible. d) Joint access driveways between adjoining properties shall be encouraged. e) Internal circulation and egress shall provide for traffic safety, and access to and from minor streets servicing one family dwellings shall be minimized. 7. Findings of the Planning Board FN a) With the concurring vote of four members, of the Planning Board shall either A) approve, B) approve with conditions, or C) deny a site plan submitted for review. i) The Planning Board shall approve a site plan with the following conditions are met: A. The site plan complies with all current Bylaw requirements of the Town, and; B. The site plan has been submitted in accordance with the regulations and procedures as outlined in this section and Section 10.31 (Conditions for Approval of Special Permit.) ii) The Planning Board shall conditionally approve a site plan when the following conditions are met: a) The application needs to go to any Town Board/Department or Commission for approvals, or requires approvals by any state, and/or federal agency and; b) The site plan generally complies with Town Bylaw requirements,but requires minor changes in order to be completely in compliance with the Town Bylaw regulations. iii) The Planning Board may deny approval of a site plan for the following reasons: a) The plan does not include all the materials or information required in this section, or has failed to adhere to the procedures for Site Plan Review as outlined in this section, and Section 10.3 (Special Permits), or; b) The plan as presented is not in compliance with Town Bylaws, or; c) The plan has been drawn incorrectly or in such form that the Planning Board is unable to determine what information is being presented for review, or; d) The applicants have failed to incorporate and adhere to any condition(s) for approval granted by any Town Board, Department or Commission, or requirements called for by any state or federal agency,which has proper authority upon which to place conditions on a matter before the Planning Board. iv) The Planning Board shall render a decision within ninety(90) days of the public hearing and shall file its written decision with the Town Clerk's office and other appropriate parties in accordance with the provisions of M.G.L. Ch. 40A. v) The applicant shall be responsible for filing a copy of the decision at the Registry of Deeds. Prior to the issuance of a building permit,the applicant shall present evidence of such recording to the Building Inspector. vi) For the purpose of securing the performance of all proposed work, including landscaping and off-site improvements, the Planning Board may require security submitted in the form of a check made out to the Town of North vii)Andover in an amount determined by the Board to be sufficient to cover the cost of all or any part of the improvements required. The check will then be placed in an interest bearing account and will be released upon the completion of the project. The Board, at its discretion,may release partial amounts of the security at certain stages of construction. 8. Revisions to Approved Site Plan a) Any revisions to a development that has secured site plan approval shall be submitted to the Town Planner for review.No revisions shall be approved until the Town Planner receives three(3) copies of the revised plan and the revisions placed on the plan fall into the following categories: i) A change of location and layout of any parking area(s), signs, storage or accessory buildings,provided that no Town Bylaws are violated by the change; ii) The change in the proposed landscaping plan which does not violate any Town Bylaw; iii) A change of egress and ingress provided the same is in compliance with Town Bylaws and the requirements of the Commonwealth. b) The revisions cited above may be completed without further review by Planning Board,upon approval by the Town Planner. The Town Planner may determine that the revisions as shown do not fall into the categories outlined in this subsection, and that the proposed revisions are in FN fact substantial and call for materially different site plan than approved by the Planning Board in that changes are called for in the type, location and manner of the facilities and site improvements to be constructed and shown in the approved site plan. c) If the revisions are determined to be substantial and materially different by the Town Planner, the Town Planner shall direct the applicant to resubmit the site plan to the Planning Board in accordance with the provisions of this section. (Section 8.3 rewritten and reorganized May 6, 1996 Annual Town Meeting,Article 20) FN 8.4 Screening and Landscaping Requirements for Off-Street Commercial and Industrial Districts (1987/12) For all commercial and industrial districts the following minimum screening and landscaping requirements shall apply for all off-street lots with more than 6 parking spaces, or in any instance when a commercial or industrial off-street parking area of any size abuts a residential district. 1. A strip of land at least six(6) feet wide(may be part of required yard setbacks)with trees or shrubs densely planted,to create at least an impervious screen, at least four(4) feet high at the time of planting and which are of a type that may be commonly expected to form a year round impervious screen at least five (5) feet high within three years. 2. If a natural screen as described in item 1 above cannot be attained, a wall or fence of uniform appearance at least five(5) feet high above finished grade will be allowed. Such a wall and/or fence may be perforated,provided that not more than 25% of the face is open. 3. All required screening, as described in items 1 and 2 above, shall be maintained in good condition at all times. Such screening may be interrupted by entrances or exits, and shall have no signs attached thereto other than those permitted in the district. For all off-street parking areas of 20 or more spaces the following criteria shall also apply. 4. On at least three sides of the perimeter of an outdoor parking lot,there shall be planted at least one tree for every thirty(30) linear feet. In the interior part of an outdoor parking lot where two rows of parking spaces containing a total of 10 or more parking spaces face each other, a landscaped open space not less than 6 feet in width shall be provided. The landscaped strip may be provided either; 1)between the rows of parking spaces parallel to the aisle or,2)in two or more strips parallel to the spaces and extending from the aisle serving one row of spaces to the aisle serving the other row of spaces, as illustrated below. Trees required by this section shall be at least 3.5 inches in diameter at a height four feet above the ground at time of planting and shall be of a species characterized by suitability and hardiness for location in parking lot. To the extent practicable, existing trees shall be retained and used to satisfy this section.The following graphics are intended as illustrations and examples only and have not been incorporated into the requirements of this Bylaw. (See graph after Tables and Footnotes at end of Bylaw). 5. All artificial lighting used to illuminate any commercial or industrial parking lot, loading bay or driveway shall have underground wiring and shall be so arranged that all direct rays from such lighting falls entirely within the parking, loading or driveway area, and shall be shielded or recessed so as not to shine upon abutting properties or streets. Village Commercial Dimensional Requirements In the Village Commercial Zoning District the following requirements shall be adhered to. The following requirements are only to be placed upon the Village Commercial Zoning District and shall take the place of the proceeding regulations found in paragraph 1-5. Screening Objective: Due to the high aesthetic standards to which the architecture shall be made to conform, the main purpose of the screening shall be to screen the parking and other accessory structures which may be a part of the development, the Planning Board may require any additional screening as may be reasonably required. a. All buffer zones must be designed by a registered landscape architect, or other professional as approved by the Planning Board. b. The Planning Board recommends that materials to be used in the buffer include but not limited to the following material: Natural/existing vegetation,natural topography,berms, stone walls, fences, deciduous and coniferous shrubs/trees,perennials, annuals,pedestrian scale walkways, gazebos and other FN landscape material as it addresses the aesthetic quality of the site. The final approval of all material used within the buffer zone shall be at the discretion of the Planning Board. c. Parking lots containing 10 or more spaces shall be required to provide one tree for every five spaces. All trees shall be a deciduous mix of at least 2.5 inch caliper when planted.Native trees and shrubs shall be planted wherever possible, in order to capture the "spirit of the locale"through indigenous species (such as lilac,viburnum, day lilies, ferns, red twig dogwood, oak,maple, sycamore, linden, hawthorne,birch, shadbush, etc.). In instances where healthy plant material exists on the site prior to its development, in part or in whole, for purposes of off street parking or other vehicular use areas,the Planning Board may adjust the application of the above mentioned standards to allow credit for such plant material if, in its opinion, such an adjustment is in keeping with and will preserve the intent of these standards. d. To produce parking which is aesthetically pleasing, well screened, accessible and broken into smaller parcels that may directly and adequately service adjacent structures, a minimum of 5% landscaping and green space must be provided for all parking areas. This 5%is not intended to include the buffer zones,but shall include all internal landscaped islands in the parking areas. In all instances where natural topography lends itself to the screening of these parking areas it shall be left in its natural state. The Planning Board may at their discretion require additional screening at the owner's expense. Residential Districts Commercial vehicles in excess of one (1) ton capacity shall be garaged or screened from view of residential uses within three hundred(300) feet by either: a. A strip at least four (4) feet wide, densely planted with trees or shrubs which are at least four (4) feet high at the time of planting and which are of a type that may be expected to form a year-round dense screen at least six(6) feet high within three(3) years, or b. An opaque wall, barrier, or fence of uniform appearance at least five (5) feet high, but not more than seven (7) feet above finished grade. Such screening shall be maintained in good condition at all times, and shall not be permitted to exceed seven feet in height within required side yards. Such screening or barriers may be interrupted by normal entrances or exits and shall not be required within ten(10) feet of a street lot line. c. Garaging or off-street parking of an additional two(2) commercial vehicles may be allowed by Special Permit. When it is deemed to be in the public good, parking for additional pleasure vehicles may be allowed by Special Permit. 8.5 Planned Residential Development(PRD) 1. Purposes: The purpose and intent of the regulations contained in this section are to promote the public health, safety and general welfare of the citizens of the Town by providing for the following goals: a. To promote the more efficient use of land in harmony with its natural features; b. To encourage the preservation of open space; c. To protect water bodies and supplies,wetlands, floodplains, hillsides(1994/40), agricultural lands, wildlife, and other natural resources; d. To permit greater flexibility and more attractive, efficient and economical design of residential developments; e. To facilitate economical and efficient provision of utilities; f. To meet the town's housing needs by promoting a diversity of housing types. 2. Applicability: An application for a Planned Residential Special Permit(PRD) shall be allowed for parcels of land in the R-1, R-2, and R-3 Districts in accordance with the standards set forth in this FN section. An application for a Planned Residential Development Special Permit shall be deemed to satisfy the requirements for Site Plan Review. 3. Permit Authority: The Planning Board shall be designated as the Special Permit Granting Authority, and shall grant special permits for PRD's consistent with the procedures and conditions set forth in this section as well as in Sections 10.3 and 10.31 (Special Permits) of this Bylaw. 4. Procedure for Approval: Preliminary Plan The applicant must submit a preliminary plan per Section 6(G) (1994/40) and schedule pre- application conference to discuss the proposed PRD with the Planning Board before the submission of the final special permit application and supporting documents,to the Board for review in a public hearing. Final Plan Submittal The applicant shall follow the procedures and standards contained in this section and Section 10.3 (Special Permit) in submitting a set of final plans to the Planning Board for review. 5. Information Required: Any applicant who desires a special permit under requirements of this section shall submit an application in writing in such form as the Planning Board may require which shall include at the minimum the following: A. Development Statement: Which shall consist of a petition; a list of the parties of interest with respect to the PRD parcel and any parcel proposed to be used pursuant to the subsection 5a below. A list of the development team and a written statement meeting the requirements of a site evaluation statement under the Subdivision Rules and Regulations of the Planning Board; and setting forth the development concept and the specific requirements of the Zoning Bylaw within a table which includes the following information: 1. The number of units, 2. Type size(number of bedrooms), 3. Floor area, 4. Ground coverage, 5. Summary showing open space as percentages of the total area of the PRD tract, 6. Development schedule for all site improvements. a. Copies of the proposed instruments to be recorded with the plans including the Usable Open Space perpetual restriction,which shall be deeded to a membership corporation, non-profit organization, trust,public agency, or the Town of North Andover. b. Development plans bearing the seal of a Massachusetts Registered Architect, Registered Civil Engineer or similar professional as appropriate and consisting of- 1. £1. Subdivisions-All plans shall be drawn at a scale of 1"=40' showing all site improvements and meeting, to the extent applicable,the requirements set forth for a Definitive Plan in the Subdivision Rules and Regulations of the Planning Board and; Site Plans—Plans submitted shall meet the requirements contained in Section 8.3 (Site Plan Review)to the extent applicable. B. Review by Other Town Departments: The Planning Board shall within ten days of receipt of an application under this section, refer the application to the Conservation Commission, Public Works Department, Board of Health, Building Inspector,Police Department, and Fire Department for written reports and recommendations.No decision shall be made until such reports, are returned or thirty-five days have elapsed following such referral without receipt of such report. FN C. Findings of the Planning Board: The Planning Board may issue a special permit under this section only if the Planning Board finds that the PRD is in harmony with the general purpose and intent of this section and Section 10.3 (Special Permit) and that the PRD contains residential development and open space in a variety to be sufficiently advantageous to the Town and meets the purpose and intent of this section,which renders it appropriate to depart from the requirements of this bylaw otherwise applicable to the Zoning District in which the PRD parcel is located. If a special permit is granted, the Planning Board may impose a condition thereof that installation of municipal services and construction of roadways within the PRD shall comply with the requirements of the Subdivision Rules and Regulations of the Planning Board. Further,the Regulations of the Planning Board may require sufficient security to ensure compliance with the Subdivision Rules and Regulations,planned recreation facilities and site amenities; and may impose additional safeguards pertaining to public safety,welfare and convenience. 6. Development Standards: A. Allowable Parcel Size: For each application filed for a special permit under this section,the applicant must have a contiguous parcel of land, in single or consolidated ownership at the time of application, which is at least ten(10) acres in size. B. Allowable Uses: The following principal uses are allowed in a Planned Residential Development: 1. Single family detached houses; 2. Residential structures with up to five dwelling units per structure,utilizing common wall construction; 3. Church or other religious purposes; 4. Agriculture on parcels greater than five(5) acres; 5. Public parks; 6. Conservation area or land preserved as permanent open space; 7. Membership clubs for the exclusive use of the residents of the development. C. Dimensional Regulations: Site Plans - Minimum Lot Size: Not Required - Lot Frontage:Not Required - All Yard Setbacks:Not Required - Height Limitation: 30' or 2.5 stories - Distance Between Structures: 50' - Buffer Zone: 50' from the parcel boundary to any structure located within a PRD Development. Said buffer shall remain open without pavement or roadway(s) and left in its natural condition. D. Dimensional Regulations: Subdivisions - Minimum Lot Size: R-1 and R-2 21,780 square feet; R-3 12,500 square feet - Lot Frontage: 100' all zoning districts - All Yard Setbacks: 20' (1) - Height Limitation: 30'and 2.5 stories FN - Buffer Zone: (1993/33)A fifty-foot(50')border from the parcel boundary running the full length of the perimeter of the parcel.No structure shall be built within the Buffer Zone. The Buffer Zone shall remain in its natural state except; 1. trees and/or shrubs may be added to improve the buffer characteristic of the Zone, and 2. roadways perpendicular or nearly perpendicular to the Zone may be installed to access the Site, if approved as part of this PRD Special Permit granted be the Planning Board. Such roadways shall be minimized within the context of sound subdivision planning practices. 1. The structure may be placed upon a side lot line without a side yard setback,provided that the adjacent lot to which the zero setback is located has the required side yard setback. E. Parking Requirements: For all Planned Residential Development off-street parking shall be provided as required by Section 8.1 (Off-Street Parking). F. Usable Open Space: Usable Open Space shall be defined as the part or parts of land within the Usable Open Space shall be defined as the part or parts of land within the PRD, which are reserved for permanent open space or passive recreation use. The usable open space shall be open and unobstructed to the sky. Trees, planting, arbors, flagpoles, sculptures, fountains, outdoor open-air, passive/active recreational facilities and similar objects shall not be considered"obstructions". 1. Usable Open Space Ratio: a. For subdivision PRD's the minimum usable open space requirements shall be 35% of the total parcel area; and no more than 25% of the total amount of required usable open space shall be wetland as defined pursuant to Wetlands Protection Act, M.G.L.c.131, s.40 and the Town of North Andover Wetland Protection Bylaw, Chapter 178 of the Code of North Andover. b. For site planned PRD's, the minimum usable open space requirements shall be 50% of the total parcel area; and no more that 25% of the total required usable open space shall be wetland as defined pursuant to Wetlands Protection Act, M.G.L.c.131, s.40 and the Town of North Andover Wetland Protection Bylaw, Chapter 178 of the Code of North Andover. 2. Usable Open Space Calculation: a. Parking areas and roadways may not be included in the calculation of open space area,but the calculation may include required setbacks, waterways, and walkways. If the Planning Board requires additional parking to facilitate use of the open space, then that added parking area may be included in the calculation of the open space. b. For the purpose of creating townhouses, condominiums, multi-family, or similar housing within a Site Plan Special Permit PRD and Subdivision PRD, that area of land extending a minimum of twenty-five feet (25') from the foundation of the residential structure, eave, door, steps or stairway, patio area, deck, balcony, chimney or any other structure or improvement shall be excluded from the calculation of useable open space. If a residential structure or dwelling is more than one story tall, the minimum twenty-five foot (25') area must be measured from the furthest point from the structure or improvement. FN c. The usable open space shall be contiguous. Usable open space may still be considered contiguous if it is separated by a roadway or an accessory amenity. The Planning Board may waive this requirement for all or part of the required open space where it is determined that allowing noncontiguous open space will promote the goals of this bylaw. d. Wastewater/Stormwater Structures: At the discretion of the Planning Board, subsurface wastewater and stormwater management systems serving the PRD may be located within the open space, with the approval of the Planning Board. Surface systems, such as retention and detention ponds, shall not qualify towards the minimum open space required. e. Accessory Structures: The Planning Board may permit up to five percent (5%) of the open space to be paved(pervious"paving"materials are encouraged) or built upon for structures accessory to the dedicated use or uses of such open space (for example, pedestrian walks and bike paths). Parking areas and areas used for vehicular access or egress shall not constitute open space. f. At the sole discretion of the Planning Board, the Planning Board may waive the conditions in Section 8.5.6(F)(2) Useable Open Space Calculations if it finds that the project satisfies the purpose and intent of the Section 8.5 and improves the overall PRD design. 3. Ownership and Accessibility: a. For all PRD's the Usable Open Space shall be owned in common by and readily accessible to the owners of all the units in the PRD by any of the following groups: i. A non-profit organization or trust whose members are all the owners and occupants of the units; ii. Private organization including but not limited to the Trustees of Reservations or Essex County Greenbelt Association whose primary function is preservation of open space; iii. The Town of North Andover; and Any group as indicated by the Planning Board, which exists or is created for the purpose of preserving open space for the owners of the units located in a PRD Project. b. The usable open space shall be to greatest extent practicable accessible to the general public (unless restricted) and not for the exclusive use of a homeowner, homeowners' association or non-profit organization. For open space maintained strictly for active agricultural purposes, public access may be limited or completely excluded. This agricultural and access restriction shall be included as a deed restriction running with the land. 4. Restrictions: a. A perpetual restriction of the type described in M.G.L. Chapter 184, Section 31, (including future amendments thereto and corresponding provisions to future laws) running to or enforceable by the Town shall be recorded in respect to such land. Such restriction shall provide that the Usable Open Space shall be retained in perpetuity for one or more of the following uses: conservation, agriculture, or recreation. FN b. Such restriction(s) shall be in such form and substance as the Planning Board shall prescribe and may contain such additional restrictions on development and use of the Usable Open Space as the Planning Board may deem appropriate. G. Calculation of Allowable Residential Except as noted in Subsection H below,the maximum number of buildable lots and/or dwelling units in a PRD will be equal to the number of buildable lots and/or dwelling units which would result from an approved conventional subdivision plan. In order to determine the residential density of a PRD,the applicant must submit to the Planning Board a plan which: 1. meets the criteria of a Preliminary Subdivision Plan as defined in Section IV of the "Rules and Regulations Governing the Subdivision of Land" in effect at the time of plan submittal, 2. is fully compliant with the "Zoning Bylaw" in effect at the time of plan submittal, and 3. requires no zoning variances. The Planning Board will use this plan to determine the maximum number of buildable lots and/or dwelling units allowed in a PRD. H. Density Bonuses 1. Affordable HousingBonus onus For all PRD's the total number of allowable lots and/or dwelling units may be increased up to 20%if the developer designates at least 30%of the total number of units for use in conjunction with one or more state or federal housing assistance programs. However, in the instance where the use of federal or state programs are not available to the Housing Authority, the Planning Board, after consultation with the Housing Authority, may propose alternative methods of attaining the Affordable Housing Bonus. The developer shall certify, in writing to the Planning Board that the appropriate number of dwelling units have been set aside and conveyed to the North Andover Housing Authority (or other actions are required),before the Planning Board shall grant any special permit with density bonus provisions. Further,the developer shall be responsible to work with the North Andover Housing Authority to initiate and conclude occupancy of said units within one year of their completion. Failure to do so shall be deemed a violation of the special permit criteria. The granting of this bonus density shall not exempt the proposed development from any other criteria required by this section or regulation contained in the Town Bylaws. 2. OQpen Space Bonus For multi-family PRD's,the total number of allowable dwelling units maybe increased up to 10%if the proposed PRD provides sixty-five percent(65%)usable open space consistent with the definition of usable open space as provided in this section. The granting of this bonus density shall not exempt the proposed development from any other criteria required by this section. 3. Maximum Density Proposed PRD's may utilize both bonus provisions, i.e. affordable housing and open space; however, the granting of bonus densities shall not exempt the proposed development from any other criteria required by this section. 8.6 Satellite Receiver Discs (1987/83) FN To restrict the erection and/or installation of satellite microwave receiver discs in residential districts to a ground level area,to the rear of the rear line of the building, within the side boundary lines of the same building so that it is out of sight from the street. [Note: 8.7 Growth Management deleted May 2004 per Article 39.] (2004/39) Section 8.8 Adult Use Zone The Adult Use Zone is herein established as an overlay district and shall be superimposed on the other districts established by this Bylaw. The requirements enumerated for this Adult Use Zone shall be in addition to,rather than in place of,the requirements of the other districts. Adult uses may be allowed by Special Permit in the Adult Use Zone, as described below. Adult uses shall be prohibited at any other location in the Town. The following regulation shall apply to Adult Uses as defined in Section 2 of this Bylaw. 1. Boundaries: Boundaries of the Adult Use Zone are shown on the Zoning Map and shall include the following parcels as identified on the 1995 Assessor's Map: Map 34 Parcels 27 and Map 77 Parcels 3, 12, 13, 14& 17. Map 34 Parcel 27 Northerly 250' +/-by Holt Road Easterly 340' +/-by Lot 2 Southerly 240' +/-by City of Lawrence Airport Westerly 330' +/-by Lot 4; Map 77 Parcel 13 Northerly 100' +/-by Holt Road Easterly 370' +/-by Lot 4 Southerly 130' +/-by Parcel 3 Westerly 400' +/-by Clark Street Map 77 Parcel 14 Northerly 245' +-by Holt Road Easterly 330' +/-by Lot 3 Southerly 250"+/-by Parcel 3 Westerly 370' +/-by Lot 7 Map 77 Parcel 3 Northerly by 410' +/-by Lots 3, 4, and 7 Easterly 250' +/-by City of Lawrence Airport Comm. Southerly 465 +/-by City of Lawrence Airport Comm. Westerly 460' +/-by Clark Street Map 77 Parcel 12 (3 sided lot) Northerly 410"+/-by Parcel 17 Easterly 270' +/-by Clark Street Southerly 285' +/-by City of Lawrence Airport Comm.; and Map 77 Parcel 17 Northerly 120' +/-by City of Lawrence Airport Comm. Easterly 210"+/-by Clark Street Southerly 410"+/-by Parcel 12 Westerly 590'+\-by City of Lawrence Airport Comm. 2. Separation Distances: Adult uses may not be located: a) within five hundred feet(500') of the property line of any Residential Zoning Districts, church, school,park, or playfield. b) within five hundred feet(500') of other adult use as defined herein; FN c) within three hundred feet(300') of any establishment licensed under MGL Ch. 138, Sec. 12. 3. Maximum Usable Floor Area: With the exception of an adult cabaret or an adult motion picture theater adult uses may not exceed three thousand five hundred(3,500) square feet of useable floor area. 4. Parking Requirements: The following parking requirements shall apply: a) Parking shall be provided in the side or front yard only. b) All parking areas shall be illuminated, and all lighting shall be contained on the property. c) Parking areas shall be landscaped in conformance with the appropriate provisions of the zoning by-law. Screening and buffering: At a minimum, a five(5) foot wide landscaped buffer shall be provided along the side and rear property lines of an adult use establishment consisting of evergreen shrubs or trees not less than five(5) feet in height at the time of planting, or a solid fence not less than six(6) feet in height. 2. All building openings, entries and windows shall be screened in such a manner as to prevent visual access to the interior of the establishment by the public. 3. No adult use shall be allowed to display for advertisement or other purpose any signs,placards or other like materials to the general public on the exterior of the building or on the interior where the same may be seen through glass or other like transparent material any sexually explicit figures or words as defined in M.G.L. Sec. 31 Ch. 272. 4. Application information: The application for a special permit for an adult use establishment must include the following information: a) Name and address of the legal owner of the establishment, and of the legal owner of the property; b) Name and address of all persons having lawful equity or security interests in the establishment; c) Name and address of the manager; d) Number of employees; e) Proposed provisions for security within and without the establishment; these provisions must include and detail specifications for the following requirements: (i) Security personnel paid for by the establishment owner to remain inside the business during operating hours of the establishment. (ii) Security personnel paid for by the establishment owner to patrol the parking lot. (iii)The security plans and personnel referenced in items Section 8.8.7(e)(i) and(ii) shall be approved by the North Andover Police Chief. f) The physical layout of the interior of the establishment. 5. Special Permit Granting Authority: The Zoning Board of Appeals shall be the Special Permit Granting Authority. 6. No adult use special permit shall be issued to any person convicted of violating the provisions of MGL Ch. 119, Sec. 63, or MGL Ch. 272, Sec. 28. FN 7. An adult use 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 which shall forthwith be given to the Town Clerk by the applicant. 8. Special permits for adult uses shall be granted only upon the determination by the Special Permit Granting Authority that the location and design of the facility are in harmony with its surroundings, and that adequate safeguards exist through licensing or other means to assure on a continuing basis that activities therein will not be patently contrary to prevailing standards of adults in the community and will not involve minors in any way. 9. Any section of this by-law, or portion thereof, declared invalid shall not affect the validity or application of the remainder of the by-law. (Section 8.8 created and approved May 6, 1996 Annual Town Meeting,Article 22) Section 8.9 Wireless Service Facilities 1) Purpose a) It is the express purpose of this Bylaw to minimize the visual and environmental impacts as well as any potential deleterious impact on property value, of wireless service facilities upon properties located within the Town or adjacent thereto.No wireless service facility shall be placed, constructed or modified within the Town without first obtaining site plan approval from the Special Permit Granting Authority(SPGA). The Planning Board shall be the Special Permit Granting Authority for the issuance of a special permit to allow the placement, construction and modification of wireless service facilities within the town. This bylaw is intended to be used in conjunction with other regulations adopted by the Town, and other zoning and general bylaws designed to encourage appropriate land use, environmental protection,preservation of the rural character and the provision of adequate infrastructure development in North Andover. b) The regulation of wireless service facilities is consistent with the purpose of the North Andover Zoning Bylaw and planning efforts at the local government level to further the conservation and preservation of developed, natural and undeveloped areas,wildlife, flora and habitats for endangered species;protection of the natural resources of North Andover, enhancement of open space areas and respect for North Andover's rural character. 2) Definitions: a) Above Ground Level(AGL).A measurement of height from the natural grade of a site to the highest point of the structure. b) Above Mean Sea Level (AMSL).A uniform point from which height above sea level(or zero elevation)can be measured. c) Antenna. The surface from which wireless radio signals are sent and received by a wireless service facility. d) Camouflaged.A wireless service facility that is disguised, hidden,part of an existing or proposed structure or placed within a preexistent or proposed structure is considered to be "camouflaged." e) Carrier. A company that provides wireless services. f) Co-location. The use of a single mount on the ground by more than one carrier(vertical colocation) and/or several mounts on a preexistent building by more than one carrier. g) Cross-polarized (or dual-polarized) antenna.A low mount that has three panels flush mounted or attached very close to the shaft. h) Elevation.The measurement of height above mean sea level. FN i) Environmental Assessment(EA).An EA is the document required by the Federal Communications Commission(FCC) and the National Environmental Policy Act(NEPA) when a wireless service facility is placed in certain designated areas. j) Equipment Shelter. An enclosed, structure, cabinet, shed or box at the base of the mount within which are housed batteries and electrical equipment. k) Functionally Equivalent Services. Cellular,Personal Communication Services (PCS), Enhanced Specialized Mobile Radio, Specialized Mobile Radio and Paging. 1) GPS. Ground Positing System by satellite location of antennas. m) Guyed Tower. A lattice tower that is tied to the ground or other surface by diagonal cables. n) Lattice Tower. A type of mount that is self-supporting with multiple legs and cross bracing of structural steel. o) Licensed Carrier. A Company authorized by the FCC to construct and operate a commercial mobile radio service system. p) Monopole. The type of mount that is self-supporting with a single shaft of wood steel or concrete and a platform(or racks) for panel antennas arrayed at the top. q) Mount. The structure or surface upon which antennas are mounted, including the following four types of mounts: (1) Roof Mounted: Mounted on the roof of a building. (2) Side-mounted: Mounted on the side of a building (3) Ground-mounted: Mounted on the ground. (4) Structure-mounted: Mounted on a structure other than a building. r) Omnidirectional (whip) antenna. A thin rod that beams and receives a signal in all directions. s) Panel Antenna.A flat surface antenna usually developed in multiples. t) PCS. Communications Services.These are broadband radiowave systems that operate at a radio frequency in the 1850- 1900 megahertz range. u) Radiofrequency (RF) Engineer. An engineer specializing in electric or microwave engineering, especially the study of radio frequencies. v) Radiofrequency Radiation (RFR).The emissions from wireless service facilities as defined in the FCC Guidelines for Evaluating the 65 Environmental Effects of Radiofrequency Radiation(FCC Guidelines) or any other applicable FCC guidelines and regulations. w) Security Barrier. A locked impenetrable wail, fence or berm that completely seals an area from unauthorized entry or trespass. x) Separation.The distances between one array of antennas and another array. y) Utility.A system of wires or conductors and supporting structures that functions in the transmission of electrical energy or communication services(both audio and video)between generating stations, sub-stations, and transmission lines or other utility services. z) Wireless Service Facility. Facilities used for the principle purpose of commercial or public wireless communications uses, such as cellular telephone services, enhanced specialized mobile radio services,microwave communications, wireless communications services,paging services and the like, as defined in Section 704 of the Federal Telecommunications Act of 1996, as amended. Such facilities shall include towers, antennae, antennae support structures, panels, dishes and accessory structures. aa)Wireless Services. The three types of services regulated by this Bylaw: commercial mobile radio services,unlicensed wireless services, and common carrier wireless exchange access services. 3) District Regulations a) Use Regulations: A wireless service facility shall require a building permit in all cases and may be permitted as follows: FN i) The carrier must demonstrate that the facility is necessary in order to provide adequate service to the public. ii) A wireless service facility may locate as of right on any existing guyed tower, lattice tower,monopole or electric utility transmission tower for which a special permit issued under this Section 8.9 is in effect,provided that the new facility shall first obtain site plan review approval from the Planning Board and,provided further that any new facility shall not exceed the terms and conditions of the special permit in effect for the existing facility on which it is to be located. iii) No wireless service facility shall be located in the Town except upon issuance of a special permit in accordance with Section 10.3 of this Bylaw. Such a facility may be located in any zoning district in the Town,provided that the proposed facility satisfies all of the requirements set forth in this Bylaw. b) Location: Applicants seeking approval for wireless service facilities shall comply with the following: i) If feasible, wireless service facilities shall be located on preexistent structures, including but not limited to buildings or structures,preexistent telecommunications facilities,utility poles and towers, and related facilities,provided that such installation preserves the character and integrity of those structures. In particular, applicants are urged to consider use of preexistent telephone and electric utility structures as sites for one or more wireless service facilities. The applicant shall have the burden of proving that there are no feasible preexistent structures upon which to locate. ii) If the applicant demonstrates to the satisfaction of the SPGA(Special Permit Granting Authority)that it is not feasible to locate on a preexistent structure, wireless service facilities shall be camouflaged to the greatest extent possible, including but not limited to: use of compatible building materials and colors, screening, landscaping,with natural and/or artificial plantings (as indicated through site plan review), and placement within trees. iii) The applicant shall submit documentation of the legal right to install and use the proposed facility mount at the time of application for a building permit and/or Special Permit. c) Dimensional Requirements: Wireless service facilities shall comply with the following requirements: i) Height,General Regardless of the type of mount, wireless service facilities shall be no higher than ten feet above the average height of buildings within 300 feet of the proposed facility. In addition,the height of a wireless service facility shall not exceed by more than 10 feet the height limitations of the zoning district in which the facility is proposed to be located,unless the facility is completely camouflaged such as within a flagpole, steeple, chimney, or similar structure.Wireless service facilities may locate on a building that is legally non- conforming with respect to height,provided that the facilities do not project above the existing building height. ii) Height,Ground-Mounted Facilities Ground-mounted wireless service facilities shall not project higher than ten feet above the average building height or, if there are no buildings within 300 feet,these facilities shall not project higher than ten feet above the average tree canopy height,measured from ground level (AGL). If there are no buildings within 300 feet of the proposed site of the facility, all ground-mounted wireless service facilities shall be surrounded by dense tree growth to screen views of the facility in all directions. These trees may exist or may be planted on site. iii) Height, Side-and Roof-Mounted Facilities Side-and roof-mounted wireless service facilities shall not project more than ten(10) feet above the height of an existing building or structure nor project more than ten(10) feet above the height limit of the zoning district within which the facility is located. Wireless service facilities may locate on a building that FN is legally nonconforming with the respect to height,provided that the facilities do not project above the existing building height. iv) Height,Preexistent Structures (Utility)New antennas located on any of the following structures existing on the effective date of this bylaw shall be exempt from the height restrictions of this bylaw provided that there is no increase in height of the existing structure as a result of the installation of a wireless service facility: Water towers, guyed towers, lattice towers, fire towers and monopoles. v) Setbacks All wireless service facilities and their equipment shelters shall comply with the building setback provisions of the zoning district in which the facility is located. In addition,the following setbacks shall be observed. (1) In order to ensure public safety, the minimum distance from the base of any ground- mounted wireless service facility to any property line, shall be 2x the height of the facility/mount, including any antennas or other appurtenances.This set back is considered the"fall zone".A minimum setback of 600 feet shall be required for all wireless devices, antenna and their mounting structures,whether attached to a new or existing structure, as measured from the adjacent property line of properties which are either zoned for, or contain,residential and or educational uses of any types. (2) In the event that a preexistent structure is proposed as a mount for a wireless service facility,the setback provisions of the zoning district shall apply. In the case of the preexistent non-conforming structures,wireless service facilities and their equipment shelters shall not increase any non-conformity. 4) Design Standards a) Visibility/Camouflage Wireless service facilities shall be camouflaged as follows i) Camouflage by Existing Buildings or Structures (1) When a wireless service facility extends above the roof height of a building on which it is mounted, every effort shall be made to conceal the facility within or behind preexistent architectural features to limit its visibility from public ways. Facilities mounted on a roof shall be stepped back from the front facade in order to limit their impact on the building's silhouette. (2) Wireless service facilities which are side-mounted shall blend with the preexistent building's architecture and, if over 5 square feet, shall be shielded with material which is consistent with the design features and materials of the building. ii) Camouflage by Vegetation. If wireless service facilities are not camouflaged from public viewing areas by existing buildings or structures,they shall be surrounded by buffers of dense tree growth and under story vegetation in all directions to create an effective year- round visual buffer. Ground-mounted wireless service facilities shall provide year-round vertical evergreen vegetated buffer of 50 feet, or 75%of the overall height of the structure, in all directions.Trees and vegetation may be existing on the subject property or installed as part of the proposed facility or a combination of both. Vegetation should be natural in appearance and consistent with surroundings. iii) Color (1) Wireless service facilities,which are side-mounted on buildings, shall be painted or constructed of materials to match the color of the building material directly behind them. (2) To the extent that any wireless service facilities extend above the height of the vegetation immediately surrounding it,they must be painted in a light gray or light blue hue which blends with sky and clouds iv) Equipment Shelters Equipment shelters for wireless service facilities shall be designed consistent with one of the following design standards: FN (1) Equipment shelters must be located in underground vaults; or (2) designed consistent with traditional materials, color and design of the area, or (3) camouflaged behind an effective year-round landscape buffer, equal to the height of the proposed building, and/or wooden fence acceptable to the permitting authority b) Lighting and signage i) Wireless service facilities shall be lit only if required by the Federal Aviation Administration(FAA). Lighting of equipment structures and any other facilities on site shall be shielded from abutting properties. There shall be total cutoff of all light at the property lines of the parcel to be developed, and foot-candle measurements at the property line shall be 0.0 initial foot-candles when measured at grade. ii) Signs shall be limited to those needed to identify the property and the owner and warn of any danger.No tower or other facility shall contain any signs or other devices for the purpose of advertisement. All signs shall comply with the requirements of Section 6; Signs and Outdoor Lighting Regulations of this bylaw. iii) All ground mounted wireless, service facilities shall be surrounded by a security barrier and shall be protected against unauthorized climbing or other access by the public. c) Historic Buildings i) Any wireless service facilities located on or within a historic structure shall not alter the character-defining features, distinctive construction methods, or original historic materials of the building. ii) Any alteration made to a historic structure to accommodate a wireless service facility shall be fully reversible. iii) Wireless service facilities within an historic district shall be concealed within or behind existing architectural features, or shall be located so that they are not visible from public roads and viewing areas within the district. iv) The Historic District Commission must review all appropriate facilities. d) Scenic Landscapes and Vistas i) No facility shall be located within 300 feet of a Scenic Road. If the facility is located farther than 300 feet from the scenic road,the height regulations described elsewhere in this Bylaw shall apply. ii) Wireless service facilities shall not be located within open areas that are visible from public roads,recreational areas or residential development. As required in the Camouflage section above, all ground mounted wireless service facilities that are not camouflaged by existing buildings or structures shall be surrounded by a buffer of dense tree growth. e) Environmental Standards i) Wireless services facilities shall not be located in wetland resource areas. Locating of wireless facilities in wetland buffer areas shall he avoided whenever possible and disturbance to wetland buffer areas shall be minimized. All Conservation Commission regulations and procedures must be followed. ii) No hazardous waste shall be discharged on the site of any personal wireless service facility. If any hazardous materials are to be used on site,there shall be provisions for full containment of such materials. An enclosed containment area shall be provided with a sealed floor, designed to contain at least 110% of the volume of the hazardous materials stored or used on site.Applicant must comply with all federal, state and local regulations governing hazardous materials. iii) Storm water run-off as a result of the wireless facility shall be contained on-site and comply with the DEP Storm Water Management regulations as applicable. iv) Ground-mounted equipment for wireless service facilities shall not generate acoustic noise in excess of 50 dB at the security barrier. FN v) Roof-mounted or side-mounted equipment for wireless service facilities shall not generate noise in excess of 50 dB at ground level at the base of the building closest to the antenna. f) Safety Standards i) Radiofrequency Radiation (RFR) Standards.All equipment proposed for a wireless service facility shall be authorized per the FCC Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation (FCC Guidelines) or any other applicable FCC guidelines and regulations. ii) Structural Integrity. The applicant shall provide certification by a structural engineer that the wireless service facility is structurally sound for the proposed facility. 5) Application Procedures a) Special Permit Granting Authority(SPGR).The Special Permit Granting Authority(SPGA) for wireless service facilities shall be the Planning Board. b) Pre-Application Conference.Prior to the submission of an application for a Special Permit under this regulation,the applicant is strongly encouraged to meet with the SPGA at a public meeting to discuss the proposed wireless service facility in general terms and to clarify the filing requirements. c) Pre-Application Conference Filing Requirements.The purpose of the conference is to inform the SPGA as to the preliminary nature of the proposed wireless service facility. As such,no formal filings are required for the pre-application conference. However,the applicant is encouraged to prepare sufficient preliminary architectural and/or engineering drawings to inform the SPGA of the location of the proposed facility, as well as its scale and overall design. d) Application Filing Requirements.The following shall be included with an application for a Special Permit for all wireless service facilities: i) General Filing Requirements (1) Name, address and telephone number of applicant and any co-applicants as well as any agents for the applicant or co-applicants.A 24-hour emergency telephone contact number shall be included for use during construction as well as operation of the wireless communication facility. (2) Co-applicants may include the landowner of the subject property, licensed carriers and tenants for the wireless service facility (3) Every application for a wireless service facility Special Permit shall include at least one licensed carrier and the owner of the land as an applicant or a co-applicant. (4) Original signatures are required for the applicant and all co-applicants applying for the Special Permit. If an agent represents the applicant or co-applicant, an original signature authorizing the agent to represent the applicant and/or co-applicant is required. Photo reproductions of signatures will not be accepted. All other filing requirements in the Zoning Bylaw and the Rules and Regulations as applicable must be complied with. ii) Location Filing Requirements (1) Identify the subject property by including the name of the nearest road or roads, street address, and Assessors Map and Parcel number of subject property (2) Identify the Zoning District designation for the subject parcel. Submit a copy of Town zoning map with parcel identified. (3) A locus map at a scale of 1"= 1500' showing the subject property and all properties within 300 feet and the location of all buildings, including accessory structures, on all properties shown. (4) A map showing the other preexistent and approved wireless service facilities in North Andover and outside North Andover within one mile of its boundary. FN (5) GPS all equivalent system locating by latitude and longitude wireless service facilities iii) Siting Filing Requirements. A one-inch-equals-40 feet plan prepared by a Registered Professional Engineer in the Commonwealth of Massachusetts showing the following: (1) Property lines for the subject property. (2) Property lines of all properties within 300 feet of the proposed location. (3) Tree cover on the subject property and all properties directly abutting the subject property,by dominant species and average height. (4) Outline of all existing buildings, including purpose(e.g. residential buildings, garages,Accessory structures, etc.)on subject property and all properties adjacent to the subject property. (5) Proposed location of antenna,mount and equipment shelter(s). (6) Proposed security barrier, indicating type and extent as well as point of controlled entry. (7) Location of all roads,public and private, on the subject property and on all adjacent properties within 300 feet including driveways proposed to serve the wireless service facility. (8) Distances, at grade, from the proposed wireless service facility to each building on the vicinity plan. (9) Contours at each 2 feet AMSL for the subject property and adjacent properties within 300 feet. (10) All proposed changes to the preexistent property, including grading, vegetation removal and temporary or permanent roads and driveways. (11) Representations, dimensioned and to scale, of the proposed mount, antennas, equipment shelters, cable runs,parking areas and any other construction or development attendant to the wireless service facility. (12) Lines representing the sight line showing viewpoint(point from which view is taken) and visible point(point being viewed) from'Sight Lines" subsection below. (13) Location of all wetlands on the subject property and within 100' of the proposed facility as approved by the Conservation Commission. iv) Sight lines and photographs as described below: (1) Sight line representation. A sight line representation shall be drawn from any public road within 300 feet and the closest facade of each residential building(viewpoint) within 300 feet to the highest point(visible point) of the wireless service facility. Each sight line shall be depicted in profile, drawn at one-inch equals 40 feet scale. The profiles shall show all intervening trees and buildings. In the event there is only one(or more)residential building within 300 feet there shall be at least two sight lines from the closest habitable structures or public roads, if any. (2) Preexistent(before condition)photographs. Each sight line shall be illustrated by one four-inch by six-inch color photograph of what can currently be seen from any public road and any residential building within 300 feet. (3) Proposed(after condition)photographs. Each of the preexistent condition photographs shall have the proposed wireless service facility superimposed on it to show what will be seen from public roads and residential buildings if the proposed wireless service facility is built. (4) Siting elevations or views at-grade from the north, south, east and west for a 50-foot radius around the proposed wireless service facility plus from all preexistent public and private roads that serve the subject property. Elevations shall be at either one-quarter inch equals one foot or one-eight inch equals one foot scale and show the following: (a) Antennas,mounts and equipment shelter(s),with total elevation dimensions and average ground level(AGL) of the highest point. All future proposed antennas, FN mounts and equipment shelters if any must be shown in order to be included in the Special Permit. (b) Security barrier. If the security barrier will block views of the wireless service facility,the barrier drawing shall be cut away to show the view behind the barrier. (c) Any and all structures on the subject property. (d) Preexistent trees and shrubs at current height and proposed trees and shrubs at proposed height at time of installation,with approximate elevations dimensioned. (e) Grade changes, or cuts and fills, to be shown as original grade and new grade line, with two-foot contours AMSL. v) Design Filing Requirements (1) Equipment brochures for the proposed wireless service facility such as manufacturer's specifications or trade journal reprints shall be provided for the antennas, mounts, equipment shelters, cables as well as cable runs, and security barrier, if any. (2) Materials of the proposed wireless service facility specified by generic type and specific treatment(e.g. anodized aluminum stained wood,painted fiberglass, alloys, etc.). These shall be provided for the antennas,mounts, equipment shelters, cables as well as cable runs, and security barrier, if any. (3) Colors of the proposed wireless service facility represented by a color board showing actual colors proposed. Colors shall be provided for the antenna mounts, equipment shelters, cables as well as cable runs, and security barrier, if any. (4) Dimensions of the wireless service facility specified for all three directions: height, width and breadth. These shall be provided for the antennas, mounts, equipment shelters and security barrier, if any. (5) Appearance shown by at least two photographic superimposition's of the wireless service facility within the subject property. The photographic superimposition's shall be provided for the antennas, mounts, equipment shelters, cables as well as cable runs, and security barrier, if any, for the total height, width and breadth. (6) Landscape plan including preexistent trees and shrubs and those proposed to be added, identified by size of specimen at installation and species. (7) During the public hearing process the applicant shall schedule with the Planning Board a balloon or crane test at the proposed site, at the expense of the applicant,to illustrate the height of the proposed facility. (8) If lighting on the site is required by the FAA,the applicant shall submit a manufacturer's computer generated point-to-point printout, indicating the horizontal foot-candle levels at grade, within the property to be developed and twenty-five (25) feet beyond property lines. The printout shall indicate the locations and types of luminaries proposed. vi) Noise Filing Requirements (1) The applicant shall provide a statement listing the preexistent and maximum future projected measurements of noise from the proposed wireless service facilities, measured in decibels Ldn(common logarithmic scale, accounting for greater sensitivity at night), for the following: (a) Preexistent or ambient: the measures of preexistent noise (b) Preexistent plus proposed wireless service facilities: maximum estimate of noise from the proposed wireless service facility plus the preexistent noise environment. (c) Such statement shall be certified and signed by an acoustical engineer, stating that noise measurements are accurate and meet DEP requirements and Section 8.9(4)(e). vii)Radiofrequency Radiation (RFR)Filing Requirements (1) All telecommunications facilities shall be operated only at Federal Communications Commission(FCC) designated frequencies,power levels and standards, including FCC FN Radio Frequency Emissions standards. The applicant shall provide certification demonstrating that the maximum allowable frequencies;power levels will not be exceeded. Certifications shall include technical specifications, a written explanation of those specifications, and, if necessary, field verification. The Permit Granting Authority may condition any Special Permit granted under this section upon a periodic submittal of certification of compliance with said standards. (2) In order to determine compliance with applicable FCC regulations,the applicant shall provide a statement listing the preexistent and maximum future projected measurements of RFR from the proposed wireless service facility, including all co- locators, for the following situations: (a) Preexistent or ambient: the measurement of preexistent RFR. (b) Preexistent plus proposed wireless service facilities: maximum estimate of RFR from the proposed wireless service facility plus the preexistent RFR environment. (c) Certification, signed by a engineer, stating that RFR measurements are accurate and meet FCC Guidelines as specified in the Radiofrequency Radiation Standards subsection of this Bylaw. (3) Applicant must submit a copy of the letter from the Massachusetts Department of Public Health approving the site for this facility as required by 105 CMR 122.000 requires that the Department of Public Health approve all sites for wireless facilities with respect to emissions. viii) Federal Environmental Filing Requirements (1) At the time of application filing, an Environmental Assessment(EA)that meets FCC requirements shall be submitted to the Town for each wireless service facility site that requires such an EA to be submitted to the FCC (2) The applicant shall list location,type and amount(including radiation trace elements) of any materials proposed for use within the wireless service facility that are considered hazardous by the federal, state or local government. ix) Waiver.The SPGA may waive one or more of the application filing requirements of this section if it finds that such information is not needed for a thorough review of a proposed personal wireless service facility. 6) Co-location a) Licensed carriers shall share wireless service facilities and sites where feasible and appropriate, thereby reducing the number of wireless service facilities that are stand-alone facilities. All applicants for a Special Permit for a wireless service facility shall demonstrate a good faith effort to co-locate with other carriers. Such good faith effort includes: i) A survey of all preexistent structures that may be feasible sites for co-locating wireless service facilities; ii) Contact,with all other licensed carriers for commercial mobile radio services operating in the Commonwealth of Massachusetts; and iii) Sharing information necessary to determine if co-location is feasible under the design configuration most accommodating to co-location. b) An Applicant shall demonstrate to the Planning Board that it has made a good faith effort to co-locate its facility upon an existing facility. The Town may retain a technical expert in the field of RF engineering and/or a structural engineer to verify if co-location at the site is not feasible or is feasible given the design configuration most accommodating to co-location. The cost for such a technical expert will be at the expense of the applicant. The Town may deny a Special Permit to an applicant who has not demonstrated a good faith effort to provide for co- location, FN c) If the applicant does intend to co-locate or to permit co-location,the Town shall request drawings and studies that show the final appearance and operation of the wireless service facility at full build-out. d) If the SPGA approves co-location for a wireless service facility site,the Special Permit shall indicate how many facilities of what type shall be permitted on that site. Pursuant to Section 8.9(3) Regulations facilities specified in the Special Permit approval shall require no further zoning approval. However, the addition of any facilities not specified in the approved Special Permit shall require a new Special Permit. This allows a carrier to"pre-permit" a site for additional facilities so that they will not have to apply for another Special Permit later. e) In order to determine compliance with all applicable FCC Regulations, estimates of RFR emissions will be required for all facilities, including proposed and future facilities both for the applicant and all co-locators. 7) Modifications a) A modification of a wireless service facility may be considered equivalent to an application for a new wireless service facility and will require a Special Permit when the following events apply: i) The applicant and/or co-applicant want to add any equipment or additional height not specified in the original design filing. ii) The applicant and/or co-applicant want to alter the terms of the Special Permit by changing the wireless service facility in one or more of the following ways: (1) Change in the number of facilities permitted on the site; (2) Change in technology used for the wireless service facility. 8) Monitoring and Maintenance a) After the facility is in operation,the applicant shall submit to the SPGA, within 90 days of beginning operations and at annual intervals from the date of issuance of the Special Permit, preexistent and current RFR measurements. Such measurements shall be signed and certified by an RF engineer, stating that RER measurements are accurate and are in compliance or why the measurements fail to comply with all applicable FCC Guidelines as specified in Section 8.9(4)(c)(1)RFR Filing Requirements of this Bylaw. The measurements shall be submitted for both the applicant and all co-locators. b) After the wireless service facility is in operation the applicant shall submit to the SPGA; within 90 days of the issuance of the Special Permit, and at annual intervals from the date of issuance of the Special Permit,preexistent and current measurements of acoustic noise from the wireless service facility. Such measurements shall be certified and signed by an acoustical engineer, stating that noise measurements are accurate and meet the Noise Standards sub- section 6.13.14.5 of this Bylaw c) The applicant and co-applicant or their successor in interest shall maintain the wireless service facility in good condition. Such maintenance shall include,but shall not be limited to,painting, structural integrity of the mount and security barrier and maintenance of the buffer and landscaping. d) Failure to obtain the information required in this subsection 8.9(8) of the Bylaw shall result in a fine of not more than$300 dollars for each offense. Each day that such violation continues shall constitute a separate, offense. 9) Abandonment or Discontinuation of Use a) At such time that a licensed carrier plans to abandon or discontinue operation of a wireless service facility, such carrier will notify the Town by certified US mail of the proposed date of abandonment or discontinuation of operations. Such notice shall be given no less than 30 days FN prior to abandonment or discontinuation of operations. In the event that a licensed carrier fails to give such notice, the wireless service facility shall be considered abandoned upon discontinuation of operations. b) Upon abandonment or discontinuation of use,the carrier shall physically remove the wireless service facility within 90 days from the date of abandonment or discontinuation of use. "Physically remove" shall include,but not be limited to: i) Removal of antennas,mount, equipment shelters and security barriers from the subject property. ii) Proper disposal of the waste materials from the site in accordance with local and state solid waste disposal regulations. iii) Restoring the location of the wireless service facility to its natural condition, except that any landscaping and grading shall remain the after-condition. c) As a condition of any special permit for the placement, construction or modification of a wireless service facility, a carrier shall place into escrow a sum of money to cover the costs of removing the facility from the subject property. Said amount shall be certified by an engineer, architect or other qualified professional registered to practice in the Commonwealth of Massachusetts. Said funds shall be held by an independent escrow agent to be appointed by the carrier and the SPGR. The carrier shall authorize and, as necessary, shall obtain the authorization of the owner of the property to allow the escrow agent to enter upon the subject property to remove the facility when the facility has been abandoned or discontinued. In the event the posted amount does not cover the cost of demolition and/or removal the Town may place a lien upon the property covering the difference in cost. d) A facility shall be deemed to be abandoned or discontinued if it has not been used for the purpose for which it was originally constructed for a period of six(6)months or more. Once abandonment or discontinuance has occurred,the carrier shall remove the facility from the subject property within ninety days. In the event that the carrier fails to remove the facility,the town shall give notice to the carrier and the independent escrow agent that the facility shall be removed by the escrow agent forthwith and the escrow agent, after affording written notice seven days in advance to the carrier, shall remove the facility. e) Failure to follow the provisions of this subsection 8.9(9) shall result in a fine of not more than $300 dollars for each offense. Each day that such violation continues shall constitute a separate offense. 10)Reconstruction or Replacement of Existing Towers and Monopoles a) Guyed towers, lattice towers,utility towers and monopoles in existence at the time of adoption of Section 8.9 this Bylaw may be reconstructed, altered, extended or replaced on the same site by Special Permit,provided that the SPGA finds that such reconstruction, alteration, extension or replacement will not be substantially more detrimental to the neighborhood and/or the Town than the preexistent non-conforming structure. In making such a determination,the SPGA shall consider whether the proposed reconstruction, alteration, extension or replacement will create public benefits such as opportunities for co-location, improvements in public safety, and/or reduction in visual and environmental impacts. 11)Performance Guarantees a) Insurance in a reasonable amount determined and approved by the SPGA after consultation at the expense of the applicant with one(1) or more insurance companies shall be in force to cover damage from the structure, damage from transmissions and other site liabilities. Annual proof of said insurance must be filed with the SPGA. FN b) Funds, sufficient in the opinion of the SPGA to cover annual maintenance of the facility, shall be placed into escrow and shall be held by the independent escrow agent who shall be authorized to expend the funds for the maintenance of the facility on terms to be agreed upon by the carrier and the SPGA as a condition of approval of the special permit. c) Annual certification demonstrating continuing compliance with the standards of the Federal Communications Commission, Federal Aviation Administration and the American National Standards Institute shall be filed with the SPGA by the Special Permit holder. 12)Term of Special Permit. a) A Special Permit issued for any wireless service facility shall be valid for three(3)years. The special permit may be renewed under the same criteria as the original special permit,provided that the application for renewal of the special permit is made prior to the expiration date of the original or any renewed special permit. Additional measures governing the administration of the special permit are found in Section 10.3 of this Zoning Bylaw(1998/36). 13)Exempt Facilities: Municipal Emergency Wireless Service Facility a) Wireless service facilities necessary to provide and ensure adequate town-wide coverage for public safety communications to include Police, Fire, Ambulance, Emergency Medical Services, and Emergency Management shall be exempt from the provisions of this bylaw. Commercial or private wireless service facilities, unless they are under contract with the Town of North Andover to provide public safety communication, shall not co-locate on or utilize a municipal emergency wireless service facility and shall not be exempt under this section. Further, if said municipal emergency wireless service facility is to be located on private property, the Town must obtain the permission of the landowner. (12-5-2005 Article 6) Section 8.10 Lot/Slope Requirements 1. Lot/Slope Requirements: In the residential zoning districts the following provisions of this Section 8.10 shall apply: a. Purpose: The purpose of this bylaw is to preserve and enhance the landscape by encouraging the maximum retention of natural topographic features, such as drainage swales, streams, slopes,ridge lines,rock outcroppings, vistas,natural plant formations and trees;to minimize water runoff and soil-erosion problems incurred in grading of steep slopes; to encourage innovative architectural, landscaping, circulation and site design. For the purposes of this subsection,the term"natural" shall be defined as the condition of the ground surface as it exists at the time a subdivision or development is proposed including any man-made alterations such as grading, excavation or filling which may have occurred prior to the time such subdivision or development is submitted.No land intended for subdivision or development may be regraded or filled in such manner as to circumvent this bylaw b. Provisions: The provisions of this Subsection 8.10 shall not apply to building lots in a definitive subdivision plan submitted in accordance with M.G.L. Chapter 41 in order to obtain the protections afforded by M.G.L. Chapter 40A, Section 6. c. Defining the Slope: The slope of land at any point, stated as a percentage, shall be defined as the change in elevation over a horizontal distance measured perpendicular to the contours divided by the distance over which the change occurs multiplied by 100. The slope of land at any point,may be stated as a ratio(2:1, 3:1,4:1, etc.). The first number of the ration indicates the horizontal distance and the second number indicates the vertical rise. d. Undisturbed Slopes: All natural slopes exceeding 33% (3:1) over a horizontal distance of 30 feet as measured perpendicular to the contour on a tract or parcel of land intended or proposed for subdivision or on a building lot are protected and shall remain undisturbed. FN e. Slope Exclusion for Minimum Lot Area Calculation: All areas with natural slopes exceeding 33%(3:1) over a horizontal distance of 30 feet as measured perpendicular to the contour on a tract or parcel of land intended or proposed for subdivision or development, or on a lot intended for building purposes, shall be excluded from the calculation of the minimum lot area required for the applicable zoning district. f. The Planning Board may grant a special permit for exemption from the provisions of this section if, in the Board's opinion, the proposal satisfies the purposes of Subsection 8.10.La above. In cases where the proposal includes disturbing or creating slopes exceeding 33%, the request for special permit must be accompanied by: i) A geotechnical report prepared by a registered professional civil engineer in the Commonwealth of Massachusetts that recommends methods for slope stabilization. ii) A commitment from the applicant to fund construction inspection services of a geotechnical engineer. FN SECTION 9 NON-CONFORMING USES 9.1 Non-Conforming Uses Any non-conforming building, structure, or use as defined herein, which lawfully existed at the time of passage of the applicable provision of this or any prior by Law or any amendment thereto may be continued subject to the provisions of this Bylaw.Any lawfully non-conforming building or structure and any lawfully non-conforming use of building or land may be continued in the same kind and manner and to the same extent as at the time it became lawfully non-conforming,but such building or use shall not at any time be changed, extended or enlarged except for a purpose permitted in the zoning district in which such building or use is situated, or except as may be permitted by a Special Permit or otherwise by the North Andover Board of Appeals. Pre-existing non-conforming structures or uses,however, may be extended or altered,provided that no such extension or alteration shall be permitted unless there is a finding by the Board of Appeals that such change, extension, or alteration shall not be substantially more detrimental than the existing non-conforming use to the neighborhood.When a pre-existing structure has been made non- conforming due to changes in the lot size required by this bylaw, such structure may be extended or altered based on a finding by the Zoning Enforcement Officer that such structure after the change meets all current zoning requirements except for lot size. (1995/43) 9.2 Alteration or Extension A use or structure housing a use, which does not conform to the regulations of this Bylaw but which did conform to all applicable regulations when initially established shall not be changed, extended or enlarged except in accordance with the following provisions: 1. Such change shall be approved by a Special Permit or otherwise by the Board of Appeals. 2. Such change shall be permitted only upon the same lot occupied by the non-conforming use on the date that it became non-conforming. 3. Any increase in volume, area, or extent of the non-conforming use shall not exceed an aggregate of more than twenty five percent(25%) of the original use. 4. No change shall be permitted which tends to lengthen the economic life of the non-conforming longer than a period reasonable for the amortization of the initial investment. 9.3 Pre-Existing Non-conforming Single Family Residential Structures and Uses in the Residential 1,Residential 2,Residential 3,Residential 4 and Residential 6 Districts: a. Pre-existing Non-conforming Single Family Structures: Pre-existing non-conforming single family residential structures in the Rl, R2, R3, R4 and R6 Districts,may be changed, extended or altered,provided that there is a finding by the Zoning Enforcement Officer(Building Commissioner)that such change, extension, or alteration shall not render the structure more nonconforming than the existing structure.Upon such determination, a building permit may be issued where applicable. The following circumstances shall be deemed not to increase the nonconforming nature of said structure: 1. Alteration of a structure which complies with all current yard setbacks,building coverage, and building height requirements but is located on a lot with insufficient area, where the structure after alteration will comply with all of current Bylaw requirements except for lot area. 2. Alteration to a structure which complies will all current yard setbacks,building coverage, and building height requirements but is located on a lot with insufficient frontage, where the structure after alteration will comply with all of current Bylaw requirements except for frontage. 3. Alteration to a structure which encroaches upon one or more required yard setbacks, where the structure after alteration will comply with all current bylaw requirements except for yard FN setbacks (the provisions of this clause shall apply regardless of whether the lot complies with current area and frontage requirements). 4. Alteration of a structure which encroaches upon one or more required yard setbacks,where the altered part of the structure will comply with all current yard setbacks, or the alteration is to the side or face of the structure which encroaches upon a required yard setback, and the alteration does not further encroach upon the required yard setback. In either case, the altered structure must comply with current building coverage and building height requirements(the provisions of this clause shall apply regardless of whether the lot complies with current area and frontage requirements). 5. Alteration to a nonconforming structure which will not increase the footprint of the existing structure provided that existing height restrictions shall not be exceeded. In the event that the Zoning Enforcement Officer(Building Commissioner) determines that the nonconforming nature of such structure would be increased by the proposed extension, alteration, or change, the Zoning Board of Appeals may,by special permit, allow such extension, alteration, or change where it determines that the proposed modification will not be substantially more detrimental than the existing nonconforming structure to the neighborhood. b. Pre-existing Nonconforming Single Family Structures: No portion of this Section 9.3, Pre- Existing Non-Conforming Single Family Residential Structures and Uses in the Residential 1, Residential 2, Residential 3, Residential 4 and Residential 6 Zoning Districts shall be construed to allow for any uses other than those expressly allowed as defined in each above listed zoning district of the Zoning Bylaw. (2004/41) 9.4 Building After Catastrophe Any non-conforming building or structure destroyed or damaged by fire, flood, lightning, earthquake or wind to the extent of sixty-five percent(65%) or more of its reproduction cost at the time of such damage shall not be rebuilt, repaired,reconstructed nor altered except for a purpose permitted in that zoning district in which such building is located, or except as may be permitted by a Special Permit or otherwise by the Board of Appeals acting under Massachusetts General Laws Chapter 40A. 9.5 Abandonment If any lawfully non-conforming building or use of a building or land be at any time discontinued for a period of two years or more, or if such use or building be changed to one conforming with the North Andover Zoning Bylaw in the district in which it is located,it shall thereafter continue to conform; or take any other action relative thereto FN SECTION 10 ADMINISTRATION 10.1 Enforcement The North Andover Zoning Bylaw shall be enforced by the North Andover Building Inspector. The Building Inspector,upon being informed in writing of a possible violation of this Bylaw or on his own initiative, shall make or cause to be made an investigation of facts and an inspection of the premises where such violation may exist. If the Building Inspector is so informed in writing and declines to act, he shall within fourteen(14) days of his receipt of such information give to his informant, in writing, his reasons for refraining from taking any action. The Building Inspector, on evidence of any violation after investigation and inspection, shall give written notice of such violation to the owner and to the occupant of such premises, and the Building Inspector shall demand in such notice that such violation be abated within such reasonable time as may be given by mail addressed to the owner at the address appearing for him on the most recent real estate tax records of North Andover, and to the occupant at the address of the premises of such seeming violation. If, after such notice and demand, such violation has not been abated within the time specified, the Building Inspector or the Selectmen shall institute appropriate action or proceedings in the name of the Town of North Andover to prevent, correct, restrain, or abate any violation of this Bylaw. 10.1.1 Building Permit No building shall be erected, altered,moved,razed or added to in North Andover without a written permit issued by the Building Inspector. Such permits shall be applied for in writing to the Building Inspector. The Building Inspector shall not issue any such permit unless the plans for the building and the intended use thereof in all respects fulfill the provisions of the North Andover Zoning Bylaw(and other applicable Town Bylaws) except as may have been specifically permitted otherwise by action of the North Andover Board of Appeals,provided a written copy of the terms governing any exception so permitted be attached to the application for a building permit and to the building permit issued therefore. One copy of each such permit, as issued, including any conditions or exceptions attached thereto, shall be kept on file in the Office of the Building Inspector. In addition to the information required above, a plot plan shall indicate provisions for all other physical requirements of this Bylaw, including but not limited to off-street parking, screening and fencing.Upon granting a permit the Building Inspector shall cause a copy to be posted on the property to which it relates in a conspicuous place. 10.12 Certificate of Use and Occupancy No building hereafter erected, enlarged, extended, or altered shall be used or occupied in whole or in part until a certificate of use and occupancy has been issued by the Building Inspector.No building or land changed from one use to another, in whole or in part, shall be occupied or used until a certificate of use and occupancy has been issued by the Building Inspector. This certificate shall certify compliance with the provisions of this Bylaw and of all applicable codes (1974). 10.13 Penalty for Violation Whoever continues to violate the provisions of this Bylaw after written notice from the Building Inspector demanding an abatement of a zoning violation within a reasonable time, shall be subject to a fine of three hundred dollars($300). Each day that such violation continues shall be considered a separate offense. (1986/15) 10.14 Planning Board, associate member In addition to the five(5)member of the Planning Board already allowed by statute,the Town Manager may appoint one(1) associate member. As guided by M.G.L. Chapter 40A this associate member will only be allowed to sit on Special Permit applications to the Planning Board. The FN Chairman of the Planning Board may authorize the associate member to vote in case of a vacancy to the board, or in the case of absence, inability to act, or conflict of interest on the part of any member of the board. 10.2 Board of Appeals 10.21 Appointment and Organization There shall be a Board of Appeals of five (5)members and not more than three(3)Associate Members,which shall have and exercise all the powers provided under G.L. Chapter 40A,and which shall hear and decide all matters specifically referred to the Board of Appeals by the North Andover Zoning Bylaw and other matters referred to such Board by statute. The Board of Appeals members and Associate Members shall be appointed by the Selectmen in the manner provided by statute. Within two (2)weeks of the beginning of each calendar year, the Zoning Board of Appeals shall organize and elect a Chairman and Clerk from within its own membership. The length of terms of the members of the Board of Appeals shall be such that the term of one member expires each year. A member of the Board of Appeals may be removed for cause by the Board of Selectmen only after written charges have been made and a public hearing has been held. 10.22 Powers of the Board of Appeals The Board of Appeals shall have the following powers: 1. To hear and decide actions and appeals as provided herein; 2. To hear and decide applications for appropriate Special Permits and variances which the Board of Appeals is required to act upon under this Bylaw. 10.3 Special Permit The Special Permit Granting Authority shall adopt rules and regulations for the conduct of its business relative to the issuance of Special Permits. A copy of these rules and regulations shall be filed with the Town Clerk. The rules and regulations shall contain, as a minimum, a description of the size, form, contents, style and number of copies and number of plans and specifications to be submitted and the procedures for submission and approval of Special permits. The Special Permit Granting Authority may grant a Special permit within the framework of this Bylaw only after holding a public hearing which must be held within sixty-five(65) days after the applicant files for such Special Permit. The sixty-five(65) days period shall be deemed to have begun with the filing of the application with the Special Permit Granting Authority. The applicant is responsible for transmitting a copy of the application for a Special Permit within twenty-four(24)hours of the filing of the application with the Planning Board or the Board of Selectmen and to the Town Clerk. If an application for a Special Permit is to be filed with the Board of Appeal, the applicant shall file the application with the Town Clerk,who shall transmit the application to the Board of Appeals within twenty-four(24)hours. 10.31 Conditions for Approval of Special Permit 1. The Special Permit Granting Authority shall not approve any such application for a Special permit unless it finds that in its judgment all the following conditions are met: a. The specific site is an appropriate location for such a use, structure or condition; b. The use as developed will not adversely affect the neighborhood; c. There will be no nuisance or serious hazard to vehicles or pedestrians; d. Adequate and appropriate facilities will be provided for the proper operation of the proposed use; e. The Special Permit Granting Authority shall not grant any Special Permit unless they make a specific finding that the use is in harmony with the general purpose and intent of this Bylaw. FN 2. In approving a Special Permit, the Special Permit Granting Authority may attach such conditions and safeguards as are deemed necessary to protect the neighborhood such as,but not limited to, the following: a. Requirements of front, side, or rear yards greater than the minimum required by this Bylaw. b. Requirements of screening parking areas or other parts of the premises from adjoining premises or from the street,by walls, fences,planting, or other devices as specified by the Special Permit Granting Authority. c. Modification of the exterior features or appearances of the structure; d. Limitation of size,number of occupants,method or time of operation, or extent of facilities; e. Regulation of number, design and location of access drives or other traffic features. 3. Special Permit granted under the provisions contained herein shall be deemed to have lapsed after a two (2)year period from the date on which the Special permit was granted unless substantial use or construction has commenced. If the applicant can show good cause why substantial use or construction has not commenced within the two (2)year period,the Special Permit Granting Authority, as its discretion, may extend the Special Permit for an additional one(1)year period. Included within the two(2)year period stated above, is the time required to pursue or wait the determination of an appeal from the provisions of the Bylaw. 4. The Special Permit Granting Authority may,within the guidelines for Special Permits contained herein, allow accessory uses whether located on the same lot as the principal use or not, wherever necessary in connection with scientific research, scientific development or related production provided that the Special Permit Granting Authority finds that the proposed accessory use does not substantially derogate from the public good. 5. Within(90) days following the date of the public hearing,the Special Permit Granting Authority shall take final action in the matter in order to issue a Special Permit provided for in this Zoning Bylaw. There shall be at least four(4) of the five(5)members of the Granting Authority voting in favor of issuing the Special Permit. 6. A Special Permit granted under the provisions of this Bylaw shall not take effect until: a. The Town Clerk certifies on a copy of the decision that twenty(20) days have elapsed without filing of an appeal or that any appeal filed has been dismissed or denied; b. The certified decision has been recorded at the owner's expense in the Essex County Registry of Deed's indexed in the grantor index under the name of the record owner, and noted on the owner's Certificate of Title; c. If the Special Permit involves registered property,the decision, at the owner's expense shall also be filed with the Recorder of the Land Court. 10.32 Temporary Permit The Board of Appeals may grant a temporary Special Permit for use or occupancy permit for a period of not more than one (1)year at a time, subject to a single renewal. Such permits shall be subject to conditions imposed by the Board related to safeguarding the character of the district affected and shall be processed in accordance with the procedures provided herein for the granting of Special Permits. 10.4 Variances and Appeals The Zoning Board of Appeals shall have power upon appeal to grant variances from the terms of this Zoning Bylaw where the Board finds that owing to circumstances relating to soil conditions, shape, or topography of the land or structures and especially affecting such land or structures but not affecting FN generally the zoning district in general, a literal enforcement of the provisions of this Bylaw will involve substantial hardship, financial or otherwise, to the petitioner or applicant, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of this Bylaw(1998/32). Additionally, an appeal may be taken to the Zoning Board of Appeals as provided herein by a person aggrieved by reason of his inability to obtain a permit or enforcement action from the Building Inspector,by the Merrimack Valley Planning Commission, or by any person including an officer or Board of the Town of North Andover, or an abutting city or town, aggrieved by an order or decision of the Building Inspector or other administrative officials in violation of any provision of this Bylaw. Any petition for an appeal above must be taken within thirty(30) days of the date of the order or decision that is being appealed by filing a notice of appeal, specifying the grounds thereof with the Town Clerk, who shall forthwith transmit copies of the appeal to such officer or Board, whose order or decision is being appealed, and to the Zoning Board of Appeals. Such officer or Board shall forthwith transmit to the Zoning Board of Appeals all documents and paper constituting the records of the case in which the appeal is taken. 1. No petition for a variance or appeals shall be granted until a public hearing is held on the matter by the Zoning Board of Appeals within sixty-five(65) days after the Zoning Board of Appeals receives the petition from the Town Clerk. 2. The Zoning Board of Appeals must make its decision on a petition for a variance or appeal within One Hundred(100) days after the date of the petition is filed with the Town Clerk. In order to grant a petition for a variance or an appeal, four(4) of the five(5)members of the Board must concur. If the Zoning Board of Appeals fails to act within the time limits specified herein,the petition for a variance or appeal shall be deemed granted. a. In the case of a variance,the Zoning Board of Appeals may impose conditions, safeguards and limitations of time and use,however,these conditions cannot require continued ownership of the land or structure to which the variance pertains by the applicant,petitioner, or owner. Furthermore, if the rights authorized by the variance are not exercised within one(1)year of the date of the grant,they shall lapse and may be re-established only after notice and a new hearing. 3. The Zoning Board of Appeals shall cause to be made a detailed record of its proceedings indicating the vote of each member upon each question, or if absent or failing to vote, indicating such fact, and setting forth clearly the reason or reasons which shall be filed within the fourteen (14) days in the office of the Town Clerk and shall be a public record. Notice of the decision shall be mailed forthwith to the petitioner, applicant, or appellant, to the parties in interest designated herein, and to every person present at the hearing who requested that notice be sent to him and stated the address to which such notice was to be sent. Each notice shall specify that appeals, if any, shall be filed within twenty(20) days after the date of filing of such notice in the office of the Town Clerk. The decision shall also contain the names and addresses of the owner, and identification of the land and/or structure affected(if a variance procedure- how the variance complies with the statutory requirements for issuing a variance). Certification that copies of the decision have been filed with the Planning Board and Town Clerk are required. 10.5 Amendments to Zoning Bylaw This Bylaw shall be adopted and shall be amended from time to time by a two-thirds vote at an annual or special town meeting. Amendments to this Bylaw may be initiated by submission of the amendment to the Board of Selectmen by any of the following: a) Board of Selectmen; b)Zoning Board of Appeals; c)by an individual owning land to be affected by the amendment; d)by request of FN registered voters of the town pursuant to Section 10, Chapter 39 of the Mass. General Laws; e)the Planning Board; and 0 by the Merrimack Valley Planning Commission. 10.51 Submission of Amendment to Planning Board Within fourteen(14) days of the receipt of an application for an amendment to this Bylaw,the Board of Selectmen shall submit the proposed amendment to the Planning Board for review. The Planning Board shall hold a public hearing on any North Andover Town Meeting Warrant Article to amend the Zoning Bylaw or the zoning map and shall report its recommendations thereon, if any to the Town Meeting. Each warrant article to change the zoning map shall explicitly state the nature, extent, and location of the map change proposed and shall be accompanied by: 1. Three blackline prints of a diagram to scale showing and stating clearly the dimensions in feet of the land area proposed to be changed as to zone; 2. Also a sketch or other explicit identification of the location of such land in relation to the majority of the rest of the town. 10.52 Public Hearing Within sixty-five(65) days after receipt of a proposed amendment from the Board of Selectmen, or within sixty five (65)days after the receipt of an application for a Special Permit,the Planning Board or Zoning Board of Appeals, as the case may be, shall hold a public hearing,notice of which shall be published in a newspaper of general circulation covering the town once in each of two (2) successive weeks. The first publication may not be less than fourteen(14)days before the day of the hearing, (the date of the public hearing shall not be counted in the fourteen(14) days). Additionally,notification of the public hearing shall be posed in a conspicuous place in the North Andover Town Hall for a period of not less than fourteen(14)days before the date of the hearing. Further,notification of the public hearing shall be sent to the Massachusetts Department of Community Affairs,the Merrimack Valley Planning Commission and Planning Board of all abutting cities and towns prior to public hearing date.Notice of the public hearing shall include: a)the time and place of hearing;b)the subject matter; c)the place where texts and maps may be inspected. 10.53 Report by Planning Board No vote to adopt the proposed amendment shall be taken by the Town Meeting until the report with recommendations by the Planning Board has been submitted to the Town Meeting or until twenty-one (21)days after said hearing has elapsed without submission of said reports or submissions. After such notice,hearing, and report, or after twenty-one(21) days shall have elapsed after such hearing, without submission of such report,the Town Meeting(annual or special)may adopt, reject, or amend any such proposed amendment. 10.54 Failure to Adopt If the Town Meeting fails to vote to adopt any proposed Bylaw amendment within six(6)months after the hearing described heretofore,no action shall be taken thereon until after a subsequent public hearing is held with notice and report as heretofore provided. 10.55 Repetitive Petitions If any proposed Bylaw amendment thereto is acted upon unfavorably by the Town Meeting (annual or special), it shall not be acted upon again for a period of two (2)years from the date of the unfavorable action unless the Planning Board recommends in favor of the petition in the report. FN 10.56 Procedural Defects In accordance with Chapter 40A,no claim or invalidity of this Bylaw or any amendment to this Bylaw arising out of a possible defect in the procedure of adoption or amendment shall be made in any legal proceeding and no state,regional, county, or municipal officer shall refuse, deny, or revoke any permit, approval, or certificate because of any such claim of invalidity unless such claim is made within one hundred twenty(120) days after the adoption of the Bylaw or amendment.Notice specifying the court,parties, invalidity claim, and date of filing is filed together with a copy of the petition,with the Town Clerk within seven(7) days after commencement of the action. 10.57 Effect of Subsequent Amendments In the case of amendments to this Bylaw or changes in the districts or the boundaries subsequent to the date this Bylaw becomes effective,the right to continue the use or maintenance of any building, structure, or premises which was lawful when such amendment or change, except as provided by statute, specifically: that construction or operations under a building permit or Special Permit shall conform to any subsequent amendment unless the use or construction is commenced within a period of not less than six(6)months after the issuance of the permit, (the date of issuance shall be considered to be the date on which the building permit was issued or in the case of a Special Permit, the date on which the Planning Board voted final action) and in cases involving construction unless such construction is contained through completion as continuously and expeditiously as is reasonable. 10.6 Conflict of Laws In general,this Bylaw is supplementary to other North Andover Bylaws affecting the use,height, area, and location of buildings and structures and the use of premises. Where this Bylaw imposes a greater restriction upon the use,height, area, and location of buildings and structures and the use of premises than is imposed by other Bylaws,the provisions of this Bylaw shall control. 10.7 Validity The invalidity of any section or provision of this Bylaw shall not invalidate any other section provision thereof. 10.8 Repetitive Petitions When 1)the Planning Board denies an application for a Special Permit; or 2)the Board of Appeals denies a petition or a variance,no application on the same matter may be heard and acted favorably upon for a two(2)year period unless the following conditions are met: In the case of 1) above, four(4) of the five(5)members of the Planning Board find that there are specific and material changes in the conditions upon which the previous unfavorable action was based, and describes such changes in the records of it proceedings, and only after a public hearing at which such consent will be considered and after notice is given to the parties in interest. In the case of 2) above,the Zoning Board of Appeals may not act favorably upon a petition which has been previously denies within a two (2)year period of time unless four(4)of the five(5)members of the Zoning Board of Appeals find that there are specific and material changes in the conditions upon which the changes in the records of its proceedings and only after a public hearing,held by the Planning Board, at which consent to allow the petitioner to re-petition the Zoning Board of Appeals will be considered and after notice is given to parties in interest and only with four(4) of the five(5) members of the Planning Board voting to grant consent. FN 10.9 Withdrawal Without Prejudice Any petition for a variance which has been transmitted to the Zoning Board of Appeals or any application for a Special Permit which has been transmitted to the Planning Board may be withdrawn, without prejudice,by the petitioner prior to the publication of notice of a public hearing thereon,but thereafter be withdrawn without prejudice only with approval (majority vote) of the Zoning Board of Appeals or Planning Board respectively. FN SECTION 11 PLANNED DEVELOPMENT DISTRICT 11.1 Jurisdiction The Planning Board may grant a Special Permit for construction of a PDD in the following district: I- S. The Special Permit shall conform to this Bylaw and to G.L. Chapter 40A, Section 9, and to regulations which the Planning Board shall adopt for carrying out its duties hereunder. Except as set out hereunder, or in the Planning Board's regulations, or in a specific permit granted hereunder, the provisions of the Zoning Bylaw shall continue to govern. 11.2 Purpose The purpose of the PDD District is to provide for a mixture of land usage at designated locations at greater density and intensity than would normally be allowed provided that said land usage: 1. Does not detract from the livability and aesthetic qualities of the environment. 2. Is consistent with the objectives of the Zoning Bylaw. 3. Promotes more efficient use of land while protecting natural resources, such as water resources, wetlands, floodplains, and wildlife. 4. Promotes diverse, energy-efficient housing at a variety of costs. 11.3 Procedures 1. Pre-Application Conference Prior to the submission of an application for a Special Permit, the applicant at his option may confer with the Planning Board to obtain information and guidance before entering into binding commitments or incurring substantial expense in the preparation of plans, surveys, and other data. 2. Submission of Preliminary Plans The applicant shall file a preliminary plan accompanied by the form titled "Submission of Preliminary Plan, Planned Development"to the Planning Board at a regularly scheduled meeting. A copy of the preliminary plan and the above form shall also be filed in the Office of the Town Clerk. The Planning Board,within sixty(60) days from receipt of the plan by the Town Clerk, shall review and determine whether the proposed project is consistent with the most suitable development of the town. The Planning Board may suggest modifications and changes to the preliminary plan in anticipation of the filing of the definitive plan. If the Planning Board fails to act within sixty(60) days,the applicant may proceed to file his definitive plan. Contents of Preliminary Plan: Planned Development District: a. Planned Development Boundaries,north point, date, scale, legend, and title "Preliminary Plan: Planned Development:,the name or names of applicants, and engineer or designer. b. Names of all abutters, land uses, and approximate location and width of all adjacent streets. c. In a general manner, the existing and proposed lines of streets,ways, easements, and of any public areas within or next to the Planned Development. d. The approximate boundary lines of existing and proposed lots with approximate areas and dimensions. e. The proposed system of drainage, including adjacent existing natural waterways and the topography of the land in a general manner. f. Existing and proposed buildings, significant structures and proposed open space in a general manner. g. An analysis of the natural features of the site, including wetlands, floodplains, slopes over 12%, soil conditions, and other features requested by the Planning Board. h. A description of the neighborhood in which the tract lies, including utilities and other public facilities and the general impact of the proposed PDD upon them. FN i. A summary of environmental concerns relating to the PDD. 3. Submission of Definitive Plan: The applicant shall submit an application for a Special Permit accompanied by the original of the definitive plan plus twelve (12)copies thereof. Contents of Definitive Plan: The application for a Special Permit and Site Plan Review shall be accompanied by the original copy of the definitive plan and other data required to be submitted in triplicate and shall contain the following data: All items in"Contents of the Preliminary Plan: Planned Development District" (a through and including i) shall be incorporated. a. It shall be drawn at a scale of one-inch equals forty feet unless another scale is requested and found suitable by the Planning Board. b. The Plan shall be prepared by a land surveyor,professional engineer, or architect. c. The scale, date, and north arrow shall be shown. d. The plan shall be certified by the land surveyor doing the boundary survey and the professional engineer or architect on the location of the buildings, setbacks, and all other required dimensions, elevations, and measurements and shall be signed under the penalties of perjury. e. The corner points of the lot and change of direction of lines shall be marked by stone monuments, cut in stone, stake and nail, iron pin, or other marker and shall be so marked. f. Lot number, dimensions of lot in feet, size of lot in square feet, and width of abutting streets and ways. g. Easements within the lot and abutting thereon. h. The location of existing or proposed buildings on the lot. i. The location of existing wetlands, water bodies,wells, 100 year floodplain elevation and other natural features requested by the Planning Board. j. The dimensions of the existing and proposed buildings in feet. k. The distance of existing and proposed buildings from the lot lines and the distance between buildings on the same lot. 1. Percent of the lot coverage. m. Average finished grade of each proposed building. n. The elevation above average finished grade of the floor and ceiling of the lowest floor of each proposed building. o. Existing and proposed topographical lines at two(2) foot intervals. p. The use designation of each building or part thereof, and of each section of open ground, plaza, or usable roof space. q. Numbering of parking spaces. r. Height of all proposed buildings, above average finished grade of abutting streets. s. Number of apartments,meeting rooms, and restaurant and theater. t. Total square feet of floor space of all landscape and recreation areas, and depiction of materials to be used(grass, 5-foot shrubs, etc.). u. Deed or other recorded instrument that shows the application to be the owner or owner under option of the land to be designated as a Planned Development. 11.4 Minimum Requirements The Plan shall be subject to the following conditions and the Planning Board shall make a determination that the project meets all the following conditions: 1. The project is consistent with the purposes set out in Section 2. FN 2. If more than twenty-five percent(25%) of the PDD is located within a residential district, at least fifty-one percent(51%)of the building area and accessory facilities in the PDD shall be used for residential purposes. 3. Ingress and egress for traffic flow is designed properly so that there will be no serious hazard to vehicles or pedestrians. 4. Adequate parking facilities are provided for each use and structure in the development. 5. Major facilities or functions which require citing within scenic areas are designed to be visually compatible with the natural or historical characteristics. 6. The project does not adversely affect the natural environment to the detriment of community character and public health and safety. 11.5 Permitted Uses In a Planned Development District,the following uses are permitted: 1. Residential a. Detached 1,2, or 3 family residential structures. b. Apartment Houses c. Town Houses 2. Business a. Restaurant b. Theater,Museums c. General retail sales and service(except retail sales of automobile,mobile homes,house trailers and except automobile service station). d. Banks and financial services. e. Business and professional offices. f. Personal services. g. Recreation 3. Industrial Use a. Any uses which the Planning Board determines are not injurious to the safety or general welfare of the area. Area Regulations PDD Site Area No PDD shall be permitted on a site of less than 60,000 square feet. Usable Open Space In all PDD's, at least twenty percent(20%)of the land shall be set aside as permanent usable open space, for the use of the PDD residents, or for all PDD users, or for the community. The required open space shall be conveyed to the Conservation Commission or to a non-profit conservation organization, or to a corporation to trust representing persons responsible for the PDD, and shall be protected by a conservation restriction as required by G.L. Chapter 40A, Section 9 for common open space in cluster developments. A covenant shall be placed on the land such that no part of the PDD can be built, sold or occupied until such time as a satisfactory written agreement has been executed for protection of the open space. Setback Requirements Insofar as the PDD abuts a residential district, all proposed structures and facilities within the PDD shall be set back not less than twenty-five(25) feet from adjacent property lines or adjacent FN street lines where the PDD shall be separated or shielded from adjacent property lines by means of a buffer, fencing, setbacks, or appropriate landscaping. 11.6 Relation to Subdivision Control Act Approval of a Special Permit hereunder shall not substitute for compliance with the Subdivision Control Act,nor oblige the Planning Board to approve any related definitive plan for subdivision,nor reduce any time period for Board consideration under that law. However, in order to facilitate processing,the Planning Board may insofar as practical under existing law, adopt regulations establishing procedures for submission of a combined plan and application which shall satisfy this section and the Board's regulations under the Subdivision Control Act. FN SECTION 12 LARGE ESTATE CONDOMINIUM CONVERSION 12.1 Purpose The purpose of this subsection is to permit existing buildings or large tracts of land in Residence Districts 1, 2, and 3 to be converted to single family condominium dwelling unit compatible with such residence districts,to create new housing involving relatively little new construction,to generate tax revenue to the Town,to preserve existing buildings,to preserve the residential character of the Town and to preserve open space in the Town. In order to provide for development that is compatible with Residence Districts 1, 2, and 3,which districts are primarily for single-family residences, the conversions to dwelling units under this subsection are to.condominium dwelling units, which can be separately owned, and are therefore a type of development similar in character to other development in such districts. 12.2 Requirements Properties meeting the following requirements shall be eligible for consideration for a condominium conversion Special Permit: 1. Parcels with one(1) or more existing buildings in a Residence 1, 2, or 3 District of not less than ten(10) acres and with not less than one hundred and fifty(150) feet of frontage on the public way. 2. Any dwelling located on a lot of record as of April 24, 1982 may be converted to condominium dwelling units. 3. The total number of dwelling units that can be created under a condominium conversion Special Permit shall not exceed n-2, where "n" is the number of acres in the parcel. 4. Each condominium dwelling unit shall be an independent dwelling unit intended for use by a single family, with its own bath and toilet facilities and its own kitchen. The average square footage of the interior living space of the units shall be not less than eight hundred and fifty(850) square feet per unit. 5. No building(including both buildings converted to condominium dwelling units and other buildings not converted to condominium dwelling units) shall be externally enlarged except with the approval of the Planning Board, and in no event shall such enlargement add to any one building more floor area than a number equal to five percent(5%)of the above grade floor area of such building, the floor area of porches and decks to be included in the calculations of floor area. 6. No new building for dwelling purposes may be built on the parcel.New structures may be built pursuant to paragraph 8 (b)below. 7. Parking requirements are subject to Section 8 of the Zoning Bylaw. 8. For the purposes of this subsection, "open space" shall mean all the land on the parcel except that land occupied by buildings to be converted to condominium dwelling units and existing buildings to be used for parking purposes. To insure that preservation of open space,the following requirements shall be met: a. Open space may be used for the following purposes: flower gardens, gardens, landscaping, required parking, roadways and driveways reasonably necessary for the development, underground utilities, recreation not requiring any facility or structure, and land left in its natural state. The open space may be used for other purposes permitted in the residence district if approved by the Planning Board as consistent with the condominium development and character of the neighborhood. b. On open land all facilities and structures for accessory purposes (such as swimming pools, tennis courts, garages, carports,parking areas, lamp posts, small sheds for tools or sports equipment, fences, including the kind enclosing a tennis court or swimming pool,bath houses, and other accessory structures for accessory purposes) shall be subject to the approval of the planning Board as to their number, design, locations,uses, and sizes;provided,however,that FN all such facilities and structures, including roadways and driveways, shall not involve the use of more than twenty percent(20%) of all of the open land on the parcel. c. All new utilities, including wiring for lights on open space,paths, and driveways, shall be placed underground. 12.3 Contents of Application An application for a condominium conversion Special Permit shall include the following: 1. Proposed Master Deed and proposed plans to be recorded therewith, including floor plans, at least one (1) elevation for each building being converted to dwelling units, and a site plan for the parcel locating at least each building,roadways and driveways,parking, recreation facilities,utilities, and accessory facilities and structures. 2. Proposed Bylaws. 3. A sample proposed Unit Deed. 4. A locus plan showing the parcel and all land immediately adjacent thereto, including nearby buildings and structures. 5. Such other plans,photographs,models or elevations as the Planning Board shall reasonably deem necessary or appropriate to help understand the proposal. 12.4 Change in Application After a condominium conversion Special Permit has been granted, any change in the location or use of a building, any enlargement of a building, any material exterior restoration, any material change in the use of open space, or in the facilities or structures thereon, shall not be permitted except upon an amendment to the Special Permit which shall be upon petition of the Planning Board and after a public hearing(with the provisions of Paragraph 12.5 applying) and upon a finding by the Planning Board that the proposed change or changes do not substantially derogate from the intent and purpose of this subsection. 12.5 Review by the Planning Board Prior to recording, a Special Permit granted under this section shall be subject to the review by the Planning Board of the final plans, and of the Master Deed, and plans to be recorded therewith, and Bylaws, as they are to be initially recorded,which final plans, Master Deed,plans and Bylaws shall all be substantially the same as those approved with the Special Permit in all respects material to considerations relevant to the Special Permit, in which case the Chairman of the Planning Board shall endorse copies of such final plans and such Master Deed,plans and Bylaws having received final review and approval under this subsection,which endorsement shall be conclusive evidence thereof. Thereafter,the Master Deed and plans recorded therewith, and Bylaws may be amended without Planning Board approval;provided, however,that an amendment to the Special Permit shall be required for those matters specified in Paragraph 12.4 thereof.Any amendment to the Master Deed and plans recorded therewith and Bylaws related to an amendment to the Special Permit shall be endorsed by the permitted District(s)with greater flexibility from the pattern otherwise permitted in such districts. FN SECTION 13 CONTINUING CARE RETIREMENT CENTER 13.1 Establishment There is established a Continuing Care Retirement Center(CCRC) as a permitted use under the Special Permit provision of this Bylaw. Such permitted use may only be authorized in existing Residence 2 and Village Residential Districts. A CCRC parcel may include an adjoining parcel of land which is in the Residential-1 District,providing that no development shall be permitted in the Residential-1 portion. The authorization will empower the Planning Board to review and approve a definitive plan under the Special Permit provisions in Section 10.3 and as in otherwise provided for in this section. A CCRC shall include a nursing home care facility and congregate housing units and may also include independent dwelling units and assisted living units. A CCRC may also only include any or all of the foregoing housing types provided it is affiliated with a nursing home. 13.2 Purpose The purpose of the CCRC is to provide for the development and use of specialized housing and nursing care for the elderly on the basis of the Planning Board to issue a Special Permit in the permitted District(2) with greater flexibility from the pattern otherwise permitted in such districts. It is intended to create health care, including home health care,housing and other supportive services designed to meet the needs of the elderly population and to enable that population to live independently. It is further intended to encourage the preservation of open spaces; to allow for new nursing care facilities and housing that causes relatively little demand on Town services; and to preserve the Town's residential character. In creating an alternative to existing nursing and housing possibilities for the elderly,the CCRC is intended to allow for a greater mixture of buildings, structures and uses with regard to density than is otherwise permitted thereby allowing for the nursing care of the elderly and the relief of the physical, economic and emotional stress associated with the maintenance and care of traditional nursing home and residential properties. 13.3 Definitions a. Nursing Care Facility. A facility for the care of elderly persons requiring regular attention by medical or nursing personnel for reasons of age, ill health or physical incapacity and which has been licensed as a long-term care facility by the Massachusetts Department of Public Health. b. Congregate Housing Units. Dwelling units providing private or communal living for elderly persons who ordinarily are ambulatory and require no or limited medical attention or supervision. Such dwelling units shall consist of a room or group of rooms forming a habitable unit for one, two, or three persons, with facilities used, or intended to be used, for living,bathing, cooking, eating and sleeping. c. Independent Dwelling`Units. Dwelling units similar in character and use to congregate housing units and providing elderly residents of such units with access to all supportive services provided in congregate housing units. Independent dwelling units may only consist of free-standing buildings which contain up to five(5) dwelling units per structure. d. Assisted Living Units. Dwelling units for elderly individuals or couples in need of assistance with activities of daily living. Such dwelling units may not include facilities for cooking or eating. e. Elderly. A single person who is 62 years of age or older; or two or more persons sharing a household, the older of whom is 62 years of age or older. f. Wetlands. Any area within a parcel of land in a CCRC falling within the definition contained in Chapter 131 of the General Laws of Massachusetts as amended from time to time, or any regulations promulgated pursuant to said chapter. g. Home Health Care. Medical and therapeutic services provided to residents in their dwelling units. FN 13.4 Permitted Uses A. Principal uses. The following uses shall be permitted in a CCRC: 1. Nursing care facilities; 2. Congregate housing units; 3. Independent dwelling units; 4. Assisted living units; 5. Home health care; 6. Facilities for supportive services, including,but not limited to medical, rehabilitative, recreational, social and nutritional programs, dining and function rooms, kitchens facilities and laundry facilities. These and others shall be designed for the primary use of residents. Such supportive services may not be designed or used as a general business for the larger community of North Andover and environs. 7. Any other use deemed reasonably necessary or ancillary by the Planning Board to facilitate the uses described above,meaning and intending to permit those services and programs customarily offered in CCRC. 13.5 Standards and Restrictions a. Minimum Lot Size.A CCRC shall be permitted only within a single lot containing a total area of not less than twenty-five(25) acres. Existing public or private ways need not constitute boundaries of the lot,but the area within such ways shall not be counted in determining minimum lot size. As used in Section 13,parcel and lot shall have the same meaning. b. Permissible Density. Unless in compliance with the bonus density provisions of subsection 6.,the dwelling unit density shall not exceed an average of four(4)units per acre in a parcel which is located within the Residential-2 District and five (5)units per acre in a parcel which is located within the Village Residential District exclusive of the nursing care facility. When a parcel is located in a combined portion of either the Residential-2 and Residential-1 or the Village Residential and Residential-1 Districts, a density factor of 2 units per acre shall be applicable to the portion in the Residential-1 District. However, in no instance shall any development such as the construction of buildings, roads and parking lots be permitted in the Residential-1 District nor shall any development in Residential-2 or Village Residential District adversely impact the Residential-1 District. For parcels which are located in a combined portion of the Residential-2 and Village Residential Districts,the permissible density for each District shall be applicable. Also, in no event shall the total number of independent dwelling units exceed fifteen(15)percent of the total number of dwelling units otherwise allowed in any CCRC parcel. Further, in no instance shall the Floor Area ration of the entire project exceed 0.25,nor shall the total number of dwelling units exceed 250 for any parcel regardless of total acreage or density bonuses provided under paragraph 6. c. Maximum Lot Coverage. In no event shall the maximum lot coverage of buildings and structures exceed twenty-five(25)percent. d. Dimensional Requirements. 1. Perimeter Setback. The setback area is intended to provide a perimeter greenbelt around the CCRC except for road and utility crossings.No building or other structure shall be located within one hundred(100) feet of perimeter lines of CCRC parcel. Common open space lying within a setback area shall qualify as fulfilling this requirement. A perimeter landscaping plan shall be submitted to the Planning Board for its approval provided that nothing shall prevent the construction of walls and fences.The Planning Board may authorize or require landscaping in the Residential-1 District if it is consistent with the objective of screening the CCRC from existing or potential residential development. FN 2. Minimum Frontage. Frontage on any public street or way shall be one hundred fifty(15 0) feet, except on Route 114 where for reasons of public safety,the minimum frontage shall be two hundred fifty(250 feet). 3. Maximum Height. The height of any structure shall not exceed three (3) stories and in no event more than thirty-five(35) feet, excluding bulkheads, chimneys, flagpoles,mechanical penthouses, and similar traditional roof appurtenances.Further,the Planning Board may exempt ornamental or non-habitable architectural features added for aesthetic purposes. e. Common Open Space. Land within the CCRC parcel or lot which is not specifically reserved for the support of the CCRC facilities and which is not covered by buildings, roads, driveways, parking areas, or service areas which is not set aside as private yards,patios or gardens for residents shall be Common Open Space. Further, all Common Open Space shall be open and unobstructed to the sky; flagpoles, sculptures,benches, swimming pools, tennis courts, atriums, trees and similar objects shall not be considered obstructions. The area of Common Open Space shall equal at least fifty(50)percent of the total area of the CCRC parcel or lot and no more than twenty-five(25)percent of the minimum required Common Open Space shall be situated within wetlands. The Common Open Space shall have a shape, dimension, character and location suitable to enable its enjoyment and use for conservation, recreation and agriculture purposes by the residents of the CCRC. Further a permanent conservation restriction of the type described in MGL Chapter 184, Section 31, (including future amendments thereto and corresponding provisions in future laws)running to or enforceable by the Town shall be recorded in respects to the Common Open Space. Such restrictions shall provide that the common open space shall be retained in perpetuity for one or more of the following uses: conservation,recreations or agriculture. Such restriction shall be in a form and substance as the Planning Board shall prescribe including the management of said conservation restriction by the Town Conservation Commission, Trustees of Reservations, Essex County Greenbelt Association or other agency or body, all as subject to the approval of the Planning Board. f. Parking. The minimum number of parking spaces provide in connection with the uses permitted under this section shall be as follows: 1. Nursing Care Facility. One parking space for every sleeping room for single or double occupancy. 2. Congregate Housing,Assisted Housing and Independent Dwelling Units. One parking space for each unit. The Planning Board shall have the discretion to waive the applicant's compliance with these parking requirements provided that the applicant's plans demonstrate the capacity to fully comply with all other requirements of Section 13. g. Public Safety. The Planning Board shall require all CCRC applications to include statements, drawings and/or plans indicating that all applicable public safety(including fire safety and suppression devices)have been provided as required by law. Further, in recognition of the unique requirements of the elderly for protection against the hazards due to fire, applicants are advised to incorporate sprinkler systems in accordance with provisions of the National Fire Protection Association(NFPA 13D). h. Public Sewer. All CCRC projects shall be connected to the public sewer system. The North Andover Department of Public Works shall review all proposed sewering plans and report as to their adequacy to the Planning Board. 13.6 Bonuses a. Affordable Housing. For all CCRC's the total number of allowable dwelling units may be increased up to 50%, if the applicant designates at least 10%of the total number of units for uses as affordable housing units. Such units may be rented, sold or otherwise provided to elderly persons qualified to receive federal or state rental assistance or subsidies for reducing mortgage payments in accordance with income and assets limitations established by the authorizing state or FN federal agency. The applicant may choose to meet affordable housing requirements directly by utilizing similar income and assets standards and establishing rents, sales prices or entry feed for units which are determined to be generally consistent with those established under the various subsidy programs. For this purpose, the Planning Board in consultation with the Housing Authority, any establish rent, carrying charge,maintenance fee, sales price or entry fee in order to meet the requirements for affordable housing. Such units shall be maintained as affordable housing units for the life of the CCRC development. In the event that the applicant is unable to meet its obligations in the manner prescribed above, or as an alternative program, the Planning Board may allow the applicant to contribute funds, in lieu of housing units,to the: Town, Housing Authority or any public or non-profit agency which is authorized to develop or support affordable housing for the elderly. The rate of contribution shall be two (2)dollars per square foot of gross floor area of all buildings and structures exclusive of pools and parking. The granting of this density bonus shall not exempt the applicant from meeting any of the other requirements of this or other referenced section of the Bylaw. b. Open Space. The total number of allowable dwelling units may be increased by 15%if the proposed CCRC provides 75%usable open space consistent with the definition of open space in this section. The granting of this bonus density shall not exempt the applicant from meeting any of the other requirements of this or other referenced sections of the Bylaw. 13.7 Approval a. Facilities proposed to be built in a CCRC shall be subject to the following procedures: 1. The applicant shall be required to meet with the Planning Board to discuss the provisions of Section 13 and other referenced Sections,the elements of the proposed development and the requirements and specific provisions of the preliminary site plan to the Planning Board for its review and recommendations. 2. The applicant will be required to submit a "Defmitive Plan" in accordance with the applicable provisions of Section 11.3. The Planning Board may issue a special permit if is determines that all of the applicable requirements for the CCRC have been met and the defmitive plan is generally consistent with the preliminary site plan. b. Relationship to Subdivision Regulations. The requirements of the special permit in no way or manner release the applicant from the requirements of the Subdivision Regulations of the North Andover Planning Board. c. Density Bonus Limitations. The use of all density bonuses provided herein may not exceed 50%. FN SECTION 14 INDEPENDENTLY ELDERLY HOUSING 14.1 Establishment Independent Elderly Housing shall be permitted use under the special permit provisions of this Bylaw in the Residential-3 District. The Planning Board may review a definitive plan under the special permit provisions in Section 10.3 and as is otherwise provided in this section. 14.2 Purpose The purpose of an Independent Elderly Housing special permit is to provide an alternative and supplement to the traditional forms of elderly housing promoted by the Town. It is further intended to encourage the preservation of open space; and to preserve the Town's residential character. 14.3 Definition Independent Elderly Housing is a multi-family residential structure, each dwelling unit with separate access;restricted to individuals and couples 55 years of age and older,but not excluding physically or mentally handicapped individuals. 14.4 Permitted Uses Single, duplex and multi-family residential structures. 14.5 Standards and Restrictions a. Minimum Lot Size: A single lot at least 10 acres. b. Permissible Density: Four dwelling units per acre, with no more than eighty(89) dwelling units in any one independent elderly housing development, or not more than one hundred(100) in the event of compliance with the provisions of paragraph 6 below(Density Bonus); and in no instance shall the maximum FAR exceed 0.20. c. Maximum Lot Coverage: In no event shall the maximum lot coverage of buildings exceed twenty- five percent(25%). d. Setbacks: 1. Perimeter Setback: The setback area is intended to provide a perimeter greenbelt around any independent elderly housing development except for roads and utility crossings.No building or other structure shall be located within one hundred(100) feet of the perimeter lot lines of an independent elderly housing development. 2. Minimum Frontage: Frontage: Frontage on any public street or way shall be one hundred fifty (150) feet, except Route 114 where for reasons of public safety shall be two hundred fifty (250) feet. 3. Maximum Height: The height of any structure shall conform to the height requirement of the R-3 District. e. Common Open Space: All land within the parcel or lot which is not specifically reserved for the support of dwelling units and which is not covered by buildings,roads, driveways,parking areas or service areas, or which is not set aside as private yards,patios or gardens for residents shall be common open space. Further, all common open space shall be open and unobstructed to the sky; flagpoles, sculptures,benches, swimming pools,tennis courts, atriums,trees and similar objects shall not be considered obstructions. The area of common open space shall equal at least fifty(50) percent of the total area of parcel or lot and not more than twenty-five(25)percent of the minimum required common open space shall be situated within wetlands. The common open space shall have a shape, dimension, character and location suitable to enable its enjoyment and use for conservation,recreation and agriculture purposes by the residents. Further, a permanent conservation restriction of the type described in MGL Chapter 184, Section 31 (including future amendments thereto and corresponding provisions in future laws)running to or enforceable by the FN Town shall be recorded in respect to the common open space. Such restrictions shall provide that the common open space be retained in perpetuity for one or more of the following uses: conservation, recreation or agriculture. Such restriction shall be in a form and substance as the Planning Board shall prescribe including the management of said conservation restriction by the Town Conservation Commission, Trustees of Reservations,Essex County Greenbelt Association or other agency or body, all as subject to the approval of the Planning Board. f. Parking: Two off-street parking spaces per dwelling unit. g. Public Sewer: All projects shall be connected to the public sewer system. The North Andover Department of Public Works shall review all proposed sewering plans and report as to their adequacy to the Planning Board. h. Approval: Facilities and/or units proposed to be built as Independent Elderly Housing shall be subject to the following procedures: 1. The applicant shall be required to meet with the Planning Board to discuss the provisions of Section 14 and the referenced section,the elements of the proposed development and the requirements and specific provisions of the preliminary site plan. The applicant shall submit a preliminary site plan to the Planning Board for its review and recommendations. 2. The applicant will be required to submit a "Definitive Plan" in accordance with the applicable provisions of Section 11.3. The Planning Board may issue a special permit if it determines that all of the applicable requirements for independent elderly housing have been met and the definitive plan is generally consistent with the preliminary site plan. i. Relationship to Subdivision Regulations: The requirements of the special permit in no way or manner release the applicant from the requirements of the Subdivision Regulations of the North Andover Planning Board. 14.6 Density Bonus a. Affordable Housing: For all Independent Elderly Housing, the total number of allowable dwelling units may be increased by 25%, if the applicant designates at least 10% of the total number of units for use as affordable elderly housing units. Such units may be rented, sold or otherwise provided to elderly persons qualified to receive federal or state rental assistance or subsides for reducing mortgage payments in accordance with income and assets limitations established by the authorizing state or federal agency.The applicant may choose to meet affordable housing requirements directly by utilizing similar income and assets standards and establishing rents, sales price of entry fees for units which are determined to be generally consistent with those established under the various subsidy programs. For this purpose,the Planning Board in consultation with the Housing Authority, may establish the rent, carrying charge,maintenance fee, sales price or entry fee in order to meet the requirements for affordable housing. Such units shall be maintained as affordable housing units for the life of the Independent Elderly Housing development. In the event that the applicant is unable to meet its obligations in the manner prescribed above, or as an alternative program,the Planning Board may allow the applicant to contribute funds, in lieu of housing units,to the: Town,Housing Authority or any public or non-profit agency which is authorized to develop or support affordable elderly housing. The rate of contribution shall be two (2) dollars per square foot of Gross Floor Area of all buildings and structures exclusive of underground parking or swimming pools. The granting of this density bonus shall not exempt the applicant from meeting any of the other provisions of this or other referenced sections of this Bylaw. FN SECTION 15 PLANNED COMMERCIAL DEVELOPMENT DISTRICT 15.1 OBJECTIVES The Planned Commercial Development District is intended: a. to allow considerable flexibility under a special permit in the development of tracts of land as recommended in the Town of North Andover Master Plan in accordance the goals and objectives in the Master Plan; b. to allow a developer to propose a site development use and plan unique to a particular location; c. to provide under the special permit process a mechanism for the Planning Board to evaluate the potential impacts of a proposed development; d. to permit a development which is compatible with the character of the Town and which benefits economic development of the Town; 15.2 PERMITTED USES a. The following uses are permitted: i. Walk-In Bank: A free standing building with its own parking lots and excluding drive-through windows. ii. Business and other offices; iii. All uses allowed in the R-4 Zoning District as set forth in Section 4.122 of the Zoning Bylaw; 15.2.1.PRINCIPAL USES 15.2.1 (a) The following uses are allowed only by special permit pursuant to this Section 15 of the Bylaw: i. Hotel or Motel (limited to one in each 2,000 linear feet of street or highway as measured along the frontage); ii. Art Gallery; iii. Funeral Parlor; iv. Restaurants where the business primarily serves food to be consumed in within the building excluding"fast food and drive through" establishments; A fast food and drive through establishment is defined as a restaurant characterized by a large carryout clientele; long hours of service [some are open for breakfast, all are open for lunch and dinner, some are open late at night or 24 hours]; and high turnover rates for eat-in customers. v. Retail uses,provided there is no outdoor storage or sale of materials or products; 15.2.2.ACCESSORY USES i. Eating and drinking establishments within an office building for use principally by those employed within the structure; ii. Private parking garages accessory to allowed principal uses; iii. Indoor recreational facilities such as tennis and racquetball courts as an accessory to a hotel or motel for use principally by the guests of the hotel or motel. Public memberships to the recreational facilities are not allowed. iv. No other uses shall be allowed. 15.3 DIMENSIONAL REGULATIONS a. Residential Dimensional requirements for the R-4 zone shall be as set forth in Summary of Dimensional Requirements (Table II) b. Commercial: i. Minimum Lot Size: 150,000 s.f. FN ii. Height Maximum: 35 feet( a hotel only may be constructed in height to a maximum of(60 feet); iii. Street frontage: 300 feet iv. Front setback: 100 feet with the first 50 feet as a visual buffer which shall remain open and green,be suitably landscaped,un-built upon, unpaved and not parked on. v. Side setback: 50 feet(except when directly adjacent to a residential use where it is 100 feet with a 50 foot visual buffer which shall remain open and green,be suitably landscaped,un- built upon,unpaved and not parked on). vi. Rear setback: 50 feet(except when directly adjacent to a residential use here it is 100 feet with a 50 foot visual buffer which shall remain open and green,be suitably landscaped,un-built upon,unpaved and not parked on). vii.Floor Area Ratio: 75:1 viii. Lot coverage: maximum of 25% ix. Contiguous Buildable Area: 75% of minimum lot size. 15.4 SPECIAL PERMIT GRANTING AUTHORITY The Planning Board shall be the Special Permit Granting Authority(SPGA) for the issuance of Planned Commercial Development District Special Permits.No structures associated with principal and accessory uses shall be placed, constructed or modified within the Planned Commercial Development District without first obtaining a Planned Commercial Development special permit from the Planning Board. This Bylaw is intended to be used in conjunction with other regulations adopted by the Town, and other zoning and general bylaws designed to encourage appropriate land use, environmental protection,preservation of the rural character and the provision of adequate infrastructure development in North Andover 15.4.1 Procedures for Obtaining a Planned Commercial Development District Special Permit in accordance with Section 15. A. Pre-Application Conference Prior to the submission of an application for a Planned Commercial District Special Permit,the applicant is encouraged to confer with the Town Planner to obtain information and guidance regarding the development of the parcel. After such initial consultation with the Town Planner,the applicant may meet before the Planning Board at a public meeting. Such pre-application consultation shall be informal,non-binding, and directed toward: • Reviewing the basic concepts of the proposal; • Reviewing the proposal with regard to the master plan and zoning bylaw; • Explaining the state and local regulations that may apply to the proposal; • Preliminary discussion shall not bind the applicant or the Board; B. Submission of a Planned Commercial Development District Special Permit Application and Plan: 1. Procedures: i. The applicant shall file eight(8) copies of the Planned Commercial Development District Plan, supporting materials, filing and outside engineering review escrow fees, and three(3) copies of the form titled"Planned Commercial Development District Special Permit Application"to the Planning Board. The Town Planner shall certify that the plans and materials submitted have been time stamped by the Town Clerk's Office and meet the submittal requirements. ii. The Planning Board,within sixty-five (65) days from receipt of the plan by the Town Clerk, shall determine whether the proposed project is generally consistent with criteria of the paragraph 15.1 of this Section. The Planning Board will review the plans during a FN public hearing process and will receive comments from the public, other Town Departments, and the applicant. iii. The applicant must follow the procedures for obtaining a Special Permit as set forth in Section 10.3 of the Zoning Bylaw. iv. If applicable,the applicant must follow the procedures for Site Plan Review under Section 8.3 Site Plan Review. 2. Submission Requirements: The Planned Commercial Development District plan shall include all of the information required under Section 8.3 (5) of the Zoning Bylaw in addition to the following: 3. Minimum requirements: The Plan, at a minimum, shall be subject to the following conditions. The Planning Board shall make a determination that the project meets all of the following criteria: a. The project is consistent with the objectives set forth in Paragraph 15.1. b. The proposed project shall not generate traffic flows that, in the opinion of the Planning Board, are excessive for the project location; further, ingress and egress for traffic flow and traffic circulation within the project are designed properly so that there will be no serious hazard to vehicles or pedestrians. c. Adequate parking facilities are provided for each use and structure in the development. d. Major facilities or functions are designed to be visually compatible with natural,historical and neighborhood characteristics of the site. e. The project does not adversely affect the natural environment to the detriment of community character. f. The project must meet the requirements of Section 8.9, Lot/Slope Requirements. 15.5 RELATION TO SUBDIVISION CONTROL ACT Approval of a Planned Commercial Development District Special Permit hereunder shall not substitute for compliance with the Subdivision Control Act,nor obligate the Planning Board to approve any related definitive plan for subdivision,nor reduce any time period for Board consideration under that law. However in order to facilitate processing, the Planning Board may insofar as practicable under existing law, adopt regulations establishing procedures for submissions of a combined plan and application which shall satisfy this section and the board's regulations under the Subdivision Control Act. (2004/45). FN SECTION 16 CORRIDOR DEVELOPMENT DISTRICT 16.1 Objectives The Corridor Development District is intended: 1. To control the design of commercial and residential development along the primary corridors for vehicular travel through North Andover(Route 114,Route 133, and Route 125)in such a manner that encourages sound site planning, appropriate land use,the preservation of aesthetic and visual character, and promote economic development and diversity in the community tax base for the Town; 2. To foster a greater opportunity for creative development by providing control and design guidelines which encourage a mix of uses compatible with existing and neighboring residential properties; 3. To accommodate a compatible mixture of uses that complement commercial and residential uses typically associated with transportation corridors and large traffic flows. 4. To serve as a transition area between commercial development and the neighboring residential properties by ensuring that the appearance and effects of buildings and uses are harmonious with the character of the area; 5. To allow considerable flexibility under a special permit in the development of tracts of land as recommended in the Town of North Andover Master Plan in accordance with the goals and objectives in the Master Plan; 6. To allow a developer to propose a site development use and plan unique to a particular location. 16.2 Corridor Development District 1(CDD1)-Permitted Uses In the Corridor Development District 1,no land shall be used and no building or structure shall be reconstructed, erected, altered or used for any other purpose than the following: 1. Retail uses excluding auto sales and repair provided there is no outdoor sales or storage of materials and products. 2. Restaurants excluding drive-through facilities. 3. Personal service establishments. 4. Public building or use and Public Service Corporation. 5. Professional offices including,but not limited to banks,real estate offices, insurance offices, physician offices, dentists, attorneys, architects, engineers or accountants.No drive-through facilities are permitted with these uses. 6. Art Gallery 7. Cultural Center or Museum 8. Place of worship 9. Same-structure/On-site Mixed Use Developments a. Residential uses shall not be located on the first floor of a structure or building. b. Apartments and condominiums shall be allowed where such use is not more than fifty percent (50%) of the gross square feet for a two (2) story building and not more than seventy-five percent(75%) of the gross square feet for a three (3) story building. 16.3 Corridor Development District 2 (CDD2)-Permitted Uses In the Corridor Development District 2, no building or structure shall be reconstructed, erected, altered or used for any other purpose than the following: 1. Retail uses provided there is no outdoor sales or storage of materials and products. However, auto sales and repair are not allowed. 2. Restaurants excluding drive-through facilities. 3. Personal service establishments. FN 4. Indoor recreation, fitness, and health care facility. 5. Indoor place of amusement or assembly. 6. Public building or use and Public Service Corporation. 7. Professional offices including,but not limited to banks,real estate offices, insurance offices, physician offices, dentists, attorneys, architects, engineers or accountants.No drive-through facilities are permitted with these uses. 8. Art Gallery 9. Cultural Center or Museum. 10. Place of worship. 11. Same-structure/On-site Mixed Use Developments a. Residential uses shall not be located on the first floor of a structure or building. b. Apartments and condominiums shall be allowed where such use is not more than fifty percent (50%) of the gross square feet for a two(2) story building and seventy-five percent(75%) of the gross square feet for a three(3) story building. 12. Farming, Livestock,Animal Care: a. Farming of field crops and row crops,truck gardens, orchards,plant nurseries, and greenhouses. b. On any lot of at least three(3) acres,the keeping of a total of not more than three(3) of any kind or assortment of animals or birds in addition to the household pets of a family living on such lot, and for each additional acre of lot size,the keeping of one(1) additional animal or bird up to a maximum of five (5) animals;but not the keeping of any animals,birds, or pets of persons not resident on such lot. c. On any lot of at least five (5) acres,the keeping of any number of animals or birds regardless of ownership and the operation of equestrian riding academies, stables, stud farms, dairy farms, and poultry batteries d. The sale of products raised as a result of the above uses on the subject land. 13. Fence businesses, fence contractor's yard, sales of sheds, swings sets and like equipment and supplies, including outdoor sales and outdoor storage of material, equipment, and supplies." 16.4 Corridor Development District 3 (CDD3)-Permitted Uses In the Corridor Development District 3, no building or structure shall be reconstructed, erected, altered or used for any other purpose than the following: 1. Retail uses provided there is no outdoor sales or storage of materials and products. However, auto sales and repair are not allowed. 2. Restaurants excluding drive-through facilities. 3. Personal service establishments. 4. Indoor recreation, fitness, and health care facility. 5. Indoor place of amusement or assembly. 6. Outdoor place of amusement or assembly. 7. Public building or use and Public Service Corporation. 8. Professional offices including, but not limited to banks, real estate offices, insurance offices, physician offices, dentists, attorneys, architects, engineers or accountants. One drive-through facility shall be permitted every 500 linear feet of street or highway as measured along centerline. 9. Medical Center. 10. Research and Development Facility not to exceed 25,000 square feet. 11. Printing and Reproduction. 12. Warehousing and Wholesaling. 13. Motel and Hotel. 14. Art Gallery. 15. Cultural Center or Museum. FN 16. Place of worship. 17. Day Care Center. 18. Same-structure/On-site Mixed Use Developments: a. Residential uses shall not be located on the first floor of a structure or building. b. Apartments and condominiums shall be allowed where such use is not more than fifty percent (50%) of the gross square feet for a two (2) story building and seventy-five percent (75%) of the gross square feet for a three(3) story building. 16.5 Uses Subject to a Special Permit The following uses may be allowed in the Corridor Development Districts by granting of a Special Permit pursuant to Section 8.3 and 10.3 of the Bylaw: 1. No building or structure in excess of 3,000 gross square feet of building area shall be constructed, reconstructed, erected or altered in the Corridor Development District without the granting of the Special Permit. The granting of the Special Permit shall be pursuant to Section 8.3 and 10.3 of the bylaw and subject to the following conditions:" a. Submission of a traffic impact and mitigation plan by a professional traffic engineer/consultant. b. For those parcels abutting residential zoned properties, sufficient evidence must be provided to demonstrate that no reasonable alternatives to the site layout, site design, and parking configuration exist. c. A determination by the Planning Board that the proposed development will not create adverse traffic and safety impacts and neighborhood streets and uses are harmonious with the character of the area. d . A determination by the Planning Board that the proposed development provides sufficient screening and buffering for those parcels abutting residential zoned properties. 2. For outdoor storage, display, and sales of materials,products and goods in connection with retail uses and provided: 3. Permissible area of land devoted to the specially permitted outdoor use may not exceed twenty percent(20%)within CDD 1 and thirty percent(30%)within CDD2 of the indoor principal use devoted to retail sales. 4. The products,materials or goods displayed, stored or sold outdoors,by special permit, must not be visible from any residential use. 5. The goods,materials, and products permissible for outdoor storage, display and sales hereunder, shall explicitly exclude automobiles,motorcycles, or other wheeled vehicles and include only goods,materials, and products,which are customarily stored, displayed, or sold outdoors without the necessity for cover from the weather. Fertilizers and other toxic,hazardous chemicals are also excluded herein. 6. The amount of area designated for outdoor storage shall be included in the dimensional requirements for maximum lot coverage. 7. The entire outdoor storage area shall be enclosed by a wall of solid opaque material such as masonry or solid wood fencing which, in the opinion of the Planning Board, will not derogate from the surrounding area. 8. Sufficient landscaping shall be provided around the perimeter of the storage area at the discretion of the Planning Board. 9. Only living plants can be higher than the surrounding vertical structural screening. 16.6 Design Standards 1. Any other performance standards of the town shall also apply to uses conducted under this Section 16.6 of the North Andover Zoning Bylaws; FN 2. Architecture should demonstrate the cohesive planning of the development and present a clearly identifiable design feature throughout.Applicants are encouraged to use traditional New England architectural elements in the design. It is not intended that buildings be totally uniform in appearance or that designers and developers be restricted in their creativity. Rather, cohesion and identity can be demonstrated in similar building scale or mass; consistent use of facade materials; similar ground level detailing, color or signage; consistency in functional systems such as roadway or pedestrian way surfaces, signage, or landscaping;the framing of outdoor open space and linkages, or a clear conveyance in the importance of various buildings and features on the site; 3. Buildings adjacent to usable open space should generally be oriented to that space,with access to the building opening onto the open space; 4. All new utilities shall be placed underground; 5. Landscaped space and pedestrian connectivity shall be designed and located to provide sufficient and safe access throughout the development and/or abutting residential neighborhoods. An alternative to a sidewalk, such as an asphalt path or trail, which better serves the purpose of connecting commercial businesses to each other and the community,may also be used; 6. Commercial uses shall be designed and operated, and hours of operation limited where appropriate, so that neighboring residents are not exposed to offensive noise, especially from traffic or late-night activity.No amplified music shall be audible to neighboring residents; 7. Vehicular access to and from public roads is intended to be consolidated. Vehicular access to lands from a public roadway shall generally be limited to one (1) access point,particularly when frontage along said roadway is two hundred(200) feet or less; 8. Driveway consolidation should be undertaken so as to reduce traffic conflicts on feeder or collector streets: a. Provision for Interior roadways and common curb cuts: i. To allow for the least disruption in flow on the primary corridors, and the opportunity for orderly growth within the zoning districts bordering this state roadway,the town considers the reduction of entrances and exits on the highway of major concern. For that reason, all site plans shall show reasonable plans for interior roadways linking neighboring parcels presently developed or which could be developed as future site development to a common access point. ii. The Planning Board may approve provisions for interior roadways utilizing joint access and/or egress, recognizing that the final design and permitting of access to the primary corridors is to be accomplished only through the access permit process of the Massachusetts Highway Department. The Planning Board shall have the authority to authorize the following density bonuses for abutting owners who develop interior roadways or feeder streets utilizing a common drive and curb cuts thereby eliminating per parcel access/egress point on the highway: 1. an additional five (5%)percent in the amount of lot coverage allowed by the requirements of the bylaw for an existing or proposed use; and, 2. an increase of one dwelling unit per acre for an existing or proposed residential use. iii. Applicants should notify the Massachusetts Highway Department as soon as possible of their intent to utilize the provisions of this bylaw in order to facilitate an orderly and cooperative permitting process between the Planning Board and the state highway department; 9. The design should preserve and enhance natural features such as topography, waterways, vegetation, and drainage ways; 10. The design should minimize impervious surfaces and incorporate other design features to minunize storm water runoff, and FN 11. Mixed Use Developments should maximize pedestrian transit-oriented development. Specifically they should use "traffic-calming"techniques liberally; provide networks for pedestrians as good as the networks for motorists;provide pedestrians and bicycles with shortcuts al alternatives to travel along high-volume streets, and emphasize safe and direct pedestrian connections to transit stops and other commercial and/or employment nodes;provide long-term, covered,bicycle parking areas; provide well-lit,transit shelters; incorporate transit-oriented design features; and establish Travel Demand Management programs at employment centers. 16.7 Screening and Landscaping Requirements 1. Front Yard: The ten(10) feet nearest the street or front lot line must be landscaped and such landscaping shall not affect vehicular sight distance. 2. Side Yards: The five(5) feet nearest the side lot line must be landscaped.A waiver to the landscape requirements may be granted if one access driveway services the lot. 3. Rear Yards: The ten(10)feet nearest the rear lot lines must be landscaped. 4. Side and Rear Yards: Where a lot abuts a residential zoning district, the fifteen(15) feet nearest the side and rear lot lines must be landscaped. In addition, within ten(10) feet of the side and rear lot line, a buffer of at least eight(8)foot high trees or shrubs must be planted and maintained in a healthy condition by the owner of the property in perpetuity. A six(6) foot stockade fence must be erected along the side and rear property lines to physically separate the residential zone from the Corridor Development District areas. The Planning Board may specify the type and species of natural buffering required. 5. Building Foundation: A minimum three(3) foot wide landscaping strip must be installed along the entire length of each building foundation wall, except at points of entry/exit, lawfully required fire access points, loading/receiving bay areas, and any other structural amenities necessary and ordinary to the use of the building. 6. The Planning Board shall have final discretion in determining if sufficient landscape screening and buffering of varying depth and height has been provided. 7. All required screening, as described in items 1 through 6 above, shall be maintained in good condition at all times and in perpetuity. 16.8 Lighting and Signs 1. All outdoor lighting shall be designed so as not to adversely impact surrounding uses and residential properties, while also providing a sufficient level of illumination for access and security purposes. Such lighting shall not blink, flash, oscillate or be of unusually high intensity of brightness. 2. Parking areas shall be illuminated to provide appropriate visibility and security during hours of darkness. 3. Any outdoor lighting fixture newly installed or replaced shall be shielded so that it does not produce a strong, direct light beyond the property boundaries, and shall be directed toward the object or area to be illuminated. Light shall be directed away from residences. Where a lot abuts a residential zoning district, additional screening measures may be required at the discretion of the Planning Board. 4. Lighting of the site shall be adequate at ground level for the protection and safety of the public in regard to pedestrian and vehicular circulation. The glare from the installation of outdoor lights and illuminated signs shall be contained on the property and shall be shielded from abutting properties. 5. Landscape screening shall consist of planting, including evergreens,the plantings to be of such height, depth as needed to sufficiently screen from view abutting residential areas any unshielded light source, either inside or outside. 6. All signs shall conform to Section 6.6(D)Business and Industrial Districts. FN 16.9 Submission of a Special Permit Application and Plan Procedures for submission of application and plan: 1. The applicant shall file eight(8) copies of Corridor Development District Plan, supporting materials, filing and outside engineering review escrow fees, and three (3) copies of the form titled "Corridor Development District Special Permit Application"to the Planning Board. The Town Planner shall certify that the plans and materials submitted have been time stamped by the Town Clerk's Office and meet the submittal requirements. 2. The Planning Board,within sixty-five(65)days from receipt of the plan by the Town Clerk, shall determine whether the proposed project is generally consistent with criteria of the paragraph 16.1 of this Section. The Planning Board will review the plans during a public hearing process and will receive comments from the public, other Town Departments, and the applicant. 3. The applicant must follow the procedures for obtaining a Special Permit as set forth in Section 10.3 of the Zoning Bylaw. 4. If applicable,the applicant must follow the procedures for Site Plan Review under Section 8.3, Site Plan Review. 16.10 Parking Requirements The Planning Board, at its sole discretion, may waive required parking spaces if it determines that the permitted use may allow for less than the zoning mandated parking requirement. The Planning Board may consider one of the following in its determination: 1. The elimination of up to 25% of the required parking spaces to be constructed. 2. The elimination of up to 25%of the required parking spaces to be initially constructed,but require an adequate area for future spaces should they be required at a later date. 3. The elimination of up to 25%of the required parking spaces to be initially constructed,but require an adequate area for future spaces should they be required at a later date due to a change of use. 16.11 Change of Use Subsequent to Granting of Special Permit Special Permits granted under any Corridor Development District shall be subject to a new public hearing for a new Special Permit if, in the opinion of the North Andover Zoning Enforcement Officer, a change of use occurs and the initial Special Permit was granted a parking waiver under Section 16.10 herein. 16.12 Use of Existing Structure on Existing Lot 1. Upon review,the Planning Board may waive some or all of the special permit requirements outlined herein if a proposed change of use from residential to the Corridor Development District permitted use, results in no substantial change to an existing structure and is located on the same dimensional lot that existed prior to creation of any Corridor Development District. 2. To encourage the continued use of existing industrial and commercial structures and provide additional flexibility to landowners within the CDD3, an applicant may apply to the Zoning Board of Appeals for a Special Permit to expand the gross floor area of the non-conforming industrial and commercial structure(s)by up to twenty-five(25%) as existed on the date of enactment of the CDD3. The expansion permitted by the this Special Permit shall not be considered objectionable or detrimental to the residential character of the neighborhood due to the exterior appearance, emission of odor, gas, smoke, dust, noise, disturbance, or in any way objectionable to or detrimental to any residential use within the neighborhood. After such approval has been obtained from the ZBA,the applicant must obtain a Site Plan Special Permit as required under Section 16. FN 16.13 Dimension and Density Requirements 16.13.1 Corridor Development District 1 1. Minimum lot size: 43,560 sq. ft. 2. Minimum frontage: 150 feet. 3. Maximum lot coverage including buildings, driveways, and parking areas: 70%. 4. Maximum building coverage: 50%. 5. Maximum height, not to exceed three(3) stories above ground: 35 feet. 6. Minimum building and structures front setback: 10 feet. 7. Minimum building and structures rear setback: 20 feet. 8. Minimum building and structures side setback: 15. 9. Minimum building and structures where lot abuts residential zoning district: 20 feet. 10. Minimum distance between buildings: 10 feet. 11. Minimum usable open space requirements: 30%of minimum lot size. 12. Floor area ratio: 0.75:1. 16.13.2 Corridor Development District 2 1. Minimum lot size: 87,120 sq. ft. 2. Minimum frontage: 250 feet. 3. Maximum lot coverage including buildings, driveways, and parking areas: 70%. 4. Maximum building coverage: 40%. 5. Maximum height,not to exceed three(3) stories above ground: 35 feet. 6. Minimum building and structures front setback: 10 feet. 7. Minimum building and structures rear setback: 25 feet. 8. Minimum building and structures side setback: 15. 9. Minimum building and structures where lot abuts residential zoning district: 20 feet. 10. Minimum distance between buildings: 10 feet. 11. Minimum usable open space requirements: 30%of minimum lot size. 12. Floor area ratio: 0.75:1. 16.13.3 Corridor Development District 3 1. Minimum lot size: 108,900 sq. ft. 2. Minimum frontage: 250 feet. 3. Maximum lot coverage including buildings, driveways, and parking areas: 70%. 4. Maximum height,not to exceed forty-five(45) feet above grade. 5. Minimum building and structures front setback: 15 feet. 6. Minimum building and structures rear setback: 30 feet. 7. Minimum building and structures side setback: 20 8. Minimum building and structures where lot abuts residential zoning district: 35 feet. 9. Minimum distance between buildings: 10 feet. 10. Minimum usable open space requirements: 30% of minimum lot size. 11. Floor area ratio: 0.75:1. FN SECTION 17.0 OSGOOD SMART GROWTH OVERLAY DISTRICT (OSGOD) 17.1 Purpose It is the purpose of this Section to establish an Osgood Smart Growth Overlay District and to encourage smart growth in accordance with the purposes of G. L. Chapter 40R, and to foster a range of housing opportunities along with a mixed-use development component, to be proposed in a distinctive and attractive site development program that promotes compact design, preservation of open space, and a variety of transportation options, including enhanced pedestrian access to employment and nearby rail access. Other objectives of this Section are to: 1. Promote the public health, safety, and welfare by encouraging diversity of housing opportunities; 2. Provide for a full range of housing choices for households of all incomes, ages, and sizes in order to meet the goal of preserving municipal character and diversity; 3. Increase the production of a range of housing units to meet existing and anticipated housing needs; 4. Provide a mechanism by which residential development can contribute directly to increasing the supply and diversity of housing; 5. Establish requirements, standards, and guidelines, and ensure predictable, fair and cost-effective development review and permitting; 6. Establish development standards to allow context-sensitive design and creative site planning; 7. Enable the Town to receive Smart Growth Educational Aid payments for school children which may reside in residential developments within the OSGOD pursuant to G.L. Chapter 40S, and which are available only for new developments in 40R Smart Growth Zoning Overlay Districts; and 8. Enable the Town to receive Zoning Incentive Payments and/or Density Bonus Payments in accordance with G. L. Chapter 40R and 760 CMR 59.06 arising from the development of housing in the Osgood Smart Growth Overlay District. 17.2 Definitions For purposes of this Section 17.0, the following definitions shall apply. All capitalized terms shall be defined in accordance with the definitions established under the Enabling Laws or this Section 17.2, or as set forth in the rules and regulations of the Permit Approval Authority("Regulations"). To the extent that there is any conflict between the definitions set forth in this Section 17.2 or the Regulations and the Enabling Laws,the terms of the Enabling Laws shall govern. 1. Accessory Building — A detached building, the use of which is customarily subordinate and incidental to that of the principal building or buildings, whether or not located on the same lot. 2. Accessory Use—A use of a parcel customarily subordinate and incidental to the principal use of the lot, or a neighboring lot in the case of a use pursuant to an easement, or to a structure on the lot, or on a neighboring lot in the case of a structure erected and maintained pursuant to an easement. 3. Administering Agency — The local housing authority or other qualified housing entity designated by the PAA, pursuant to Section17.8.6, to review and implement the Affordability requirements affecting Affordable Housing in Projects under Section 17.8. FN 4. Affordable Homeownership Unit- An Affordable Housing Dwelling Unit required to be sold to an Eligible Household. S. Affordable Housing-housing that is affordable to and occupied by Eligible Households. 6. Affordable Housing Restriction - A deed restriction of Affordable Housing meeting statutory requirements in G.L. c. 184, Section 31 and the requirements of Section 17.8 of this Bylaw. 7. Affordable Rental Unit- an Affordable Housing Dwelling Unit required to be rented to an Eligible Household. 8. Applicant — A person that files an application for Plan Approval and/or special permit and/or other approval pursuant to this Section 17. If the Applicant is not the owner of the real property on which the development is proposed, then the Applicant, as part of the application or notice shall obtain the owner's written authorization to file such application or notice. Such written authorization may take the form of pre-existing agreements or instruments including, without limitation, signed purchase and sale agreement(s) and signed easement(s) (whether or not yet recorded), or a written letter of authorization from the owner of the real property. 9. As-of-Right Project- Means a development of residential or non-residential under zoning without recourse to a special permit, variance, zoning amendment, or other form of zoning relief. A proposed development that requires a special permit pursuant to this Section 17.0 shall not be considered an As-Of-Right Project. 10. Building — A combination of any materials, whether portable or fixed, having a roof, to form a structure for the shelter of persons, animals, processes or property. For the purpose of this definition, "roof' shall include an awning or any similar covering, whether or not permanent in nature. The word "building" shall be construed, where the context requires, as though followed by the words"or part of parts thereof." 11. Building Area —The aggregate of the maximum horizontal cross-sectional area of all buildings on a lot exclusive of cornices, eaves, gutters, chimneys, unenclosed porches,bay windows,balconied and terraces. 12. Building Height- Measured from the average ground height adjoining at the exterior walls of a building to highest point on the roof of the building, exclusive of decorative cupolas, weather vanes, chimneys and vent structures, antennas, satellite dishes, mechanical penthouses and other structures or enclosures not intended for human habitation. 13.Design Standards— Means provisions of Section 17.11 made applicable to developments within the OSGOD that are subject to the Plan Approval process. 14.Development—Any type of construction not defined as a"Project". 15.DHCD— Department of Housing and Community Development of the Commonwealth of Massachusetts, and any successor agency. 16.Driveway or Drive Lane — A portion of a lot designed for vehicular access to off-street parking or loading space or to a garage, whether or not located on the same development real property. For purposes of this Section 17, a Driveway or Drive Lane is distinguished from a"Roadway"as defined below. FN 17 Dwelling Unit—One (1) or more living, kitchen and sleeping room(s) providing complete living facilities for the use or one (1) or more individuals constituting a single housekeeping unit, with permanent provisions for living, sleeping, eating, cooking and sanitation, but not including mobile homes or trailers, however mounted, or commercial accommodations offered for transient occupancy of less than one month's duration. 18 Eligible Household - An individual or household whose annual income is less than 80 percent of the area-wide median income for the Lawrence MA-NH HMFA (HUD Metro FMR Area) as determined by the United States Department of Housing and Urban Development (HUD), adjusted for household size, with income computed using HUD's rules for attribution of income to assets. 19 Enabling Laws- G.L. Chapter 40R and 760 CMR 59.00. 20 Fast Food Establishment— An establishment whose primary business is the sale of food upon a very short waiting time, served primarily through a drive-through facility, and which, because of the nature of the operation, causes or is a major contributor to a large volume or frequent turnover of vehicular traffic. 21 Floor Area, Gross -- Gross floor area shall be the floor area within the perimeter of the outside walls of the building without deduction for hallways, stairs, closets, thickness of walls, columns or other features. 22 Floor Area Ratio — The ratio of the floor area to the development site area defined in the Application, as determined by dividing the Gross Floor Area by the land area of the site which is the subject of the development defined in the Application. 23 Landscaped Buffer — A planted area intended to provide, when mature, a visual screen between uses. Landscaped buffers may include existing vegetation, new plantings and/or lawn areas. Fencing may form a part of the landscaped buffer or screening where appropriate or dictated by topography or other consideration. 24 Landscaping—Improvements to land to enhance its attractiveness and facilitate its use and enjoyment. Landscaping may include walks, terraces and the like, fencing, stone walls or other decorative walls, site furnishings, grading and reshaping of earth contours, planting, and lawn areas. Landscaping may also include existing natural areas indicated to remain and/or be renovated. 25 Lot Coverage - The gross floor area for principal and accessory structures permitted on a site. 26 Mixed-Use Development Project — A development containing a mix of residential uses and non-residential uses, as allowed in Section 17.6, and subject to all applicable provisions of this Section 17. 27 Multi family Residential Use—Apartment or condominium Dwelling Units in one or more buildings, each of which buildings contains or will contain more than three (3) such Dwelling Units. 28 Open Space-The portion of a site within the OSGOD not occupied by buildings,parking, garages, roadways, driveways and drive lanes, but which shall include, among other areas, all landscaped areas, all un-built areas, all sidewalks and walkways, and all swimming FN pools, tennis courts and other recreational facilities primarily open to the sky, whether or not landscaped. 29 OSGOD—The Osgood Smart Growth Overlay District established in accordance with this Section 17. 30 PAA Regulations—The rules and regulations of the PAA adopted pursuant to Section 17. Such rules and regulations shall not take effect until approved by DHCD and filed with the Town Clerk. 31 Plan Approval—A determination made in the form of a written decision by the PAA that the proposed site plan for the development complies with the standards and criteria which a site located within the OSGOD must meet under the procedures established herein and in the Enabling Laws and/or G.L. c. 40A as more particularly provided herein. 32 Plan Approval Authority (PAA) For purposes of reviewing development applications and issuing decisions on development Projects and Commercial Projects within the OSGOD, the Planning Board (the "PAA"), consistent with G.L. Chapter 40R and 760 CMR 59.00, shall be the Plan Approval Authority, and consistent with G.L. c. 40A, shall be the special permit granting authority or other approval authority as provided herein, and the PAA is authorized to approve a site plan to implement a development. 33 Principal Building—A building in which is conducted main or principal use of the site on which said building is situated. A development is permitted to have more than one Principal Building. 34 Principal Structure—The structure on a development site, which contains the primary use of the site. A principal use shall not be contained within an accessory structure as defined in the above. A development is permitted to have more than one Principal Structure. 35 Project- a Residential Project and/or Mixed Use Development Project, undertaken within the OSGOD in accordance with the requirements of this Section 17. 36 Project, Commercial — a development which is proposed and which either requires a special permit as provided herein, or is otherwise not a"Project" as defined above. 37 Residential Project - a Project that consists solely of residential, parking, and accessory uses. 38 Recreational Uses - Active recreational uses, including but not limited to ball fields; and passive recreational uses, including but not limited to walking and bicycle paths. Amusements or motorized uses shall not be considered eligible recreational uses. 39 Roadway—a main access corridor as defined under Section 17.11.14. A Roadway is not a "Driveway"or"Drive Lane" as defined above. 40 Structure — A combination of materials for occupancy or use, such as a building, bridge, trestle, tower, framework, tank, tunnel, tent, stadium, reviewing stand, platform, shelters, piers, bin, sign, swimming pool or the like; the term structure shall be construed as if followed by the words"or part thereof'. 41 Subdistrict — A specific and defined area of land within the OSGOD that is subject to specific requirements for allowable uses and/or dimensional requirements that may differ FN from the requirements for allowable uses and/or dimensional requirements in other specific and defined areas within the OSGOD. The boundaries and the names of the Subdistricts are referred to in Section 17.3.3 herein. 42 Underlying Zoning — The zoning otherwise established by the Zoning Bylaw without regard to this Article. 43 Use—The purpose for which a structure or land is used or intended to be used. 44 Use, Substantially Different—A use which by reason of its normal operation would cause readily observable, material differences in patronage, service, appearance, noise, employment or similar characteristics from the use to which it is being compared. 45 Zoning Bylaw-the Zoning Bylaw of the Town of North Andover, as amended. 17.3 Overlay District 17.3.1 Establishment The Osgood Smart Growth Overlay District, hereafter referred to as the OSGOD, is an overlay district having a land area of approximately one hundred sixty-nine (169) acres in size that is superimposed over all underlying zoning districts, including without limitation all other overlay districts, established by the Zoning Bylaw now or hereafter applicable to the properties known as 1600 Osgood Street, and is shown on the Zoning Map as set forth on the map entitled"1600 Osgood Street Smart Growth Overlay District", dated March, 2007, prepared by the North Andover Division of Community Development. This map is hereby made a part of the Zoning Bylaw and is on file in the Office of the Town Clerk (the "OSGOD Zoning Map"). The OSGOD contains all of the real property described in a deed from Lucent Technologies, Inc. to 1600 Osgood Street, LLC dated August 21, 2003, recorded with the Essex North District Registry of Deeds in Book 8213, Page 272 as more particularly shown on the OSGOD Zoning Map. 17.3.2 Underlying Zoning The OSGOD is an overlay district superimposed on all underlying zoning districts. As required by the Enabling Laws, the regulations for use, dimension, and all other provisions of the Zoning Bylaw governing the underlying zoning district(s) shall remain in full force, except for those sites undergoing development pursuant to this Section 17. Within the boundaries of the OSGOD, a developer may elect to either develop a site in accordance with the requirements of this Section 17, or to develop a site in accordance with the requirements of the regulations for use, dimension and all other provisions of the Zoning Bylaw governing the underlying zoning district(s). 17.3.3 Subdistricts The OSGOD contains three (3) Subdistricts, all hereby established and all in the locations shown on the OSGOD Zoning Map, including: (a) the Residential Mixed Use Zone, containing approximately 31.65 acres; (b) the Mixed-Use Development Zone, containing approximately 10.15 acres; and (c) the Business Opportunity Zone, containing approximately 125.94 acres. For purposes of the application of this Section 17, and for a proposed development which is located within a subdistrict identified as the Mixed Use Zone and/or the Business Opportunity Zone, the uses permitted and the dimensional and other controls applicable in a Subdistrict may be extended into the adjacent Subdistrict described above to the FN extent of one-hundred fifty(150) feet as long as the limit of said extension is reflected on the site plan for a proposed development for which Plan Approval is required under this Section 17. Moreover, a residential use may be accessed via a commercially zoned and/or mixed use Subdistrict, and in turn, a non-residential use may be accessed via a residentially-zoned and/or mixed use Subdistrict. 17.4 Administration,Enforcement,and Appeals The provisions of this Section 17 shall be administered by the Planning Board, except as otherwise provided herein. Any appeal arising out of a Plan Approval decision by the PAA with respect to a Project shall be governed by the applicable provisions of G. L. Chapter 40R, except with respect to a Commercial Project or other development requiring a special permit or other approval under G.L. c.40A, in which case, the provisions of M.G.L. c.40A shall govern only the portion of the development for which a such special permit or other approval is required. This Section shall be enforced by the Building Inspector, who may require the submission of plans, specifications and other information, which he deems to be necessary to determine compliance with its provisions. No building shall be constructed, reconstructed, enlarged, altered, moved, removed or demolished as part of a development governed by this Section without obtaining a building permit. The Building Inspector shall withhold such building permit if such building or such activity included in such a development governed by this Section, would be in violation of this Section. No actual use and occupancy (as opposed to construction and/or break-in period testing) of a building, a lot, or a portion of either of them shall be commenced or changed without the issuance by the Building Inspector of a certificate of compliance. The Building Inspector shall withhold such certificate of compliance unless the Building Inspector is satisfied that all work has been completed in accordance with the provisions of the applicable approved permits and of the applicable provisions of this Section, and that the proposed use will be in conformity with the applicable provisions of this Section. 17. 5 Applicability of OSGOD In accordance with the provisions of G.L. Chapter 40R and 760 CMR 59.00, an Applicant for a development located within the OSGOD may seek Plan Approval in accordance with the requirements of this Section 17. In such case, then notwithstanding anything to the contrary in this Zoning Bylaw, such application shall not be subject to any other provisions of this Zoning Bylaw, including limitations upon the issuance of building permits for residential uses related to a rate of development or phased growth limitation or to a local moratorium on the issuance of such permits, or to building permit or dwelling unit limitations, including but not limited to limitations provided in Section 4.2 ("Phased Development Bylaw") of the Zoning Bylaw. The total number of residential Dwelling Units which can be developed within the OSGOD shall not exceed 530, and such Dwelling Units may only be developed within the Residential Mixed Use Zone and/or the Mixed Use Development Zone defined below and in accordance with the provisions of this Section 17.0. 17.6 Permitted Uses The following uses are permitted, as more specifically described below: 17.6.1 Residential Mixed-Use Zone FN 17.6.1.1 Purpose The purpose of the Residential Mixed-Use Zone is to increase the efficiency of land use, promote a diversity of housing types, emphasize and encourage pedestrian and bicycle circulation, and to encourage the integration of smaller commercial and retail activities to complement the primary residential uses. 17.6.1.2 As-Of-Right Uses The following uses shall be permitted in the Residential Mixed Use Zone As-of-Right upon Plan Approval pursuant to the provisions of this Section 17: 1. Two-family, three- family, townhouse, and/or Multi-family Residential Use(s), provided that the minimum allowable as-of-right density requirements for residential use specified in Section 17.9 shall apply to the residential portion of a mixed-use development; 2. Assisted living units and facilities; 3. Continuing Care Retirement Center; 4. Independent Elderly Housing; 5. Day care center; 6. Eating and drinking establishment not to exceed 2,000 square feet in gross floor area per user and shall not contain a drive-through facility; 7. Municipal recreation area; 8. Non-profit School; 9. Outdoor recreation area; 10. Personal Services, banking and retail establishments not to exceed 3,000 square feet in gross floor area per user; 11. Places of worship; 12. Private School; 13. Parking accessory to any of the above permitted uses, including surface, garage-under, and structured parking (e.g., parking garages), as well as parking accessory to the uses described in Subsection 17.6.1.3 below; and, 14. Other accessory uses customarily incidental to any of the above permitted uses as determined by the Building Inspector. 17.6.1.3 Uses Allowed By Special Permit The following uses shall be permitted in the Residential Mixed Use Zone by Plan Approval Special Permit issued by the Plan Approval Authority pursuant to the provisions of Section 17.6.5: 1. Eating and drinking establishment in excess of 2,000 square feet of gross floor area per user, but less than 15,000 square feet of gross floor area per user,provided that such establishment shall not contain a Fast Food Establishment; 2. Personal Services, banking and retail establishments in excess of 3,000 square feet of gross floor area per user but less than 15,000 square feet of gross floor area per user; 3. Nursing and Convalescent Homes; 4. Commuter Rail System; and, 5. Other accessory uses customarily incidental to any of the above permitted uses as determined by the Inspector of Buildings. 17.6.1.4 The total Gross Floor Area devoted to non-residential uses and non-residential accessory uses located within the Residential Mixed Use Zone shall not exceed 75,000 square feet. FN 17.6.2 Mixed-Use Development Zone 17.6.2.1 Purpose The intent of the Mixed-Use Development Zone is to provide a transition between primarily residential development and compact, higher density commercial and mixed-use development, to increase the efficiency of land use on land which is Substantially Developed Area, to allow Commercial Projects which may include a mixture of complimentary land uses such as housing, retail, offices, commercial services, and civic uses,to create economic and social vitality and to encourage the linking of trips. 17.6.2.2 As-Of-Right Uses The following uses shall be permitted in the Mixed Use Development Zone As-of-Right upon Plan Approval pursuant to the provisions of this Section 17.6.5 and other applicable provisions of this Section 17: 1. Agricultural Use; 2. Art Gallery; 3. Businesses,Professional and Other Offices; 4. Day Care Center; 5. Eating and drinking establishment not to exceed 2,000 square feet in gross floor area per user and which shall not be a Fast Food Establishment; 6. Funeral Parlor; 7. Guest house; 8. Medical Center and/or Medical Offices; 9. Motel/Hotel; 10. Outdoor recreation area,including but not limited to,tennis court, basketball court, athletic fields,tot lots, and passive recreation; 11. Personal Services Establishments; 12. Places of Worship; 13. Public Building or use; 14. Retail, banking, and service establishments not to exceed 20,000 square feet in gross floor area per user; 15. Parking accessory to any of the above permitted uses as well as uses described in Section 17.6.2.3, including surface, garage-under, and structured parking (e.g.,parking garages), as well as parking accessory to the uses described in Subsection 17.6.2.3 below; and, 16. Accessory uses customarily incidental to any of the above permitted uses as determined by the Inspector of Buildings. FN 17.6.2.3 Uses Allowed By Special Permit The following uses shall be permitted in the Mixed Use Development Zone by Plan Approval Special Permit issued by the Plan Approval Authority, as Special Permit Granting Authority(SPGA), pursuant to the provisions of this Section 17.6.5: 3. Two-family, three- family, townhouse, and/or Multi-family Residential Use(s), provided that the minimum allowable as-of-right density requirements for residential use specified in Section 17.9 shall apply to the residential portion of a mixed-use development; 4. Assisted living units and facilities; 5. Continuing Care Retirement Center; 6. Independent Elderly Housing; 7. Nursing and Convalescent Homes; 8. Retail and Service Establishments in excess of 20,000 square feet of gross floor area per user but less than 65,000 square of gross floor area per user; 9. Eating and Drinking Establishment provided that such establishment shall not be a Fast-Food Establishment; and shall not exceed 15,000 square feet of gross floor area per user; 10. Incubator or Business Park; 11. Indoor Place of Amusement or Assembly, including but not limited to, arenas, theatres, and athletic or recreational facilities; 12. Indoor Ice Skating Facility; 13.Non-profit school; 12. Private School for profit; 13. Research and Development Facilities; and, 14. Retail Plaza not to exceed 150,000 square feet of gross floor area, where any single user cannot exceed 65,000 square feet of gross floor area. 15.Accessory uses customarily incidental to any of the above permitted uses as determined by the Inspector of Buildings. 17.6.3 Business Opportunity Zone 17.6.3.1 Purpose The intent of the Business Opportunity Zone is to encourage efficient land use by facilitating compact, high-density retail, commercial, industrial development and other Commercial Projects, and to facilitate development(land use, density and design)that supports public transit if applicable. 17.6.3.2 As-Of-Right Uses The following uses shall be permitted in the Business Opportunity Zone As-of-Right upon Plan Approval pursuant to the provisions of this Section 17.6.5 and other applicable provisions of this Section 17: 1. Agricultural Use; 2. Art Gallery; 3. Business,Professional and Other Offices; 4. Day Care Center; 5. Funeral Parlor; 6. Medical Center and/or Medical Offices; 7. Motel/Hotel; 8. Places of Worship; FN 9. Public Building or use; 10. Eating and Drinking Establishment; 11. Personal Services Establishment; 12. Municipal Recreation Area; 13. Manufacturing; 14. Printing and Reproduction; 15. Research and Development Facilities; 16. Retail,banking, and service establishments not to exceed 20,000 square feet in gross floor area per user; 17. Parking accessory to any of the above permitted uses, including surface, garage-under, and structured parking (e.g., parking garages), as well as parking accessory to the uses described in Subsection 17.6.3.3 below; and, 18. Accessory uses customarily incidental to any of the above permitted uses as determined by the Inspector of Buildings. 17.6.3.3 Uses Allowed By Special Permit The following uses shall be permitted in the Business Opportunity Zone by Plan Approval Special Permit issued by the Plan Approval Authority, as Special Permit Granting Authority (SPGA), pursuant to the provisions of this Section 17.6.5: 1. Commuter Rail System; 2. Incubator or Business Park; 3. Indoor Place of Amusement or Assembly, including but not limited to, such uses shall include arenas, theatres, and athletic or recreational facilities; 4. Indoor Ice Skating or other athletic facility; 5. Non-profit school; 6. Outdoor recreation area, including but not limited to, tennis court, basketball court, athletic fields, and passive recreation; 7. Private School for profit; and, 8. Parking accessory to any of the above permitted uses, including surface, garage-under, and structured parking(e.g.,parking garages) 9. Retail and Service Establishments in excess of 20,000 square feet of gross floor area per user; 10. Retail Plaza; 11. Public Service Corporation; 12. Windmills up to one hundred-fifty(15 0) feet to the top of the hub at the center of the rotor; and, 13. Accessory uses customarily incidental to any of the above permitted uses as determined by the Inspector of Buildings. 17.6.4 Prohibited Uses. All uses not expressly allowed are prohibited. 17.6.5 Criteria for Special Permit and Other Applicable Approval by Plan Approval Authority. 17.6.5.1 Any development component for which a special permit is required to be issued by the Plan Approval Authority, as Special Permit Granting Authority pursuant to Section 9 of M.G.L. c.40A, or for a Commercial Project approved under G.L. c. 40A, shall only be issued in accordance with the requirements of this Subsection 17.6.5. 17.6.5.2 The Plan Approval Authority may grant a Special Permit or other approval within the framework of this Section 17 only after holding a public hearing which must be held within sixty-five FN (65) days after the applicant files for such Special Permit or other approval. The sixty-five (65) days period shall be deemed to have begun with the filing of the application with the Plan Approval Authority. The Applicant is responsible for transmitting a copy of the application for a Special Permit or other approval within twenty-four(24) hours of the filing of the application with the Planning Board and to the Town Clerk. 17.6.5.3 The Plan Approval Authority shall not approve any such application for a Special Permit or other approval unless it finds that in its judgment all the following conditions are met: 1. The specific site is an appropriate location for such a use, structure or condition; 2. The use as developed will not adversely affect the neighborhood; 3. There will be no nuisance or serious hazard to vehicles or pedestrians; 4. Adequate and appropriate facilities will be provided for the proper operation of the proposed use; 5. With regard to a Special permit, the Plan Approval Authority shall not grant any Special Permit unless it makes a specific finding that the use is in harmony with the general purpose and intent of this Zoning Bylaw; and, 6. The use for which the special permit or other approval is sought complies with the dimensional and other criteria described in Sections 17.9 through 17.15 unless otherwise waived as provided therein. 17.6.5.4 In approving a Special Permit, the Plan Approval Authority may attach such conditions and safeguards only to the portion of the development requiring a special permit as are deemed necessary to protect the neighborhood such as,but not limited to,the following: 1. Requirements of front, side, or rear yards greater than the minimum required by this Bylaw: 2. Requirements of screening parking areas or other parts of the premises from adjoining premises or from the street, by walls, fences, planting, or other devices as specified by the Plan Approval Authority: 3. Modification of the exterior features or appearances of the structure; 4. Limitation of size,number of occupants,method or time of operation, or extent of facilities; and, 5. Regulation of number, design and location of access drives or other traffic features. 17.6.5.5 Special Permits or other approvals granted under the provisions contained herein shall be deemed to have lapsed after a two (2) year period from the date on which the Special Permit or other approval was granted unless substantial use or construction has commenced. If the Applicant can show good cause why substantial use or construction has not commenced within the two (2) year period, the Plan Approval Authority, as its discretion, may extend the Special Permit or other approval for an additional one (1) year period. Included within the two (2) year period stated above, is the time required to pursue or wait the determination of an appeal from the provisions of the Bylaw. 17.6.5.6 The Plan Approval Authority shall also apply the same dimensional, design and other criteria described in Sections 17.9 through 17.15 as applied to As-of-Right uses unless otherwise waived as provided therein. 17.6.5.7 Within(90) days following the date of the public hearing, the Plan Approval Authority shall take final action in the matter in order to issue a Special Permit or other approval provided for in this Section. There shall be at least four (4) of the five (5) members of the Plan Approval Authority voting in favor of issuing the Special Permit or other approval. FN 17.6.5.8 A Special Permit or other approval granted under the provisions of this Bylaw shall not take effect until: the Town Clerk certifies on a copy of the decision that twenty(20) days have elapsed without filing of an appeal or that any appeal filed has been dismissed or denied, and the certified decision has been recorded at the owner's expense in the Essex County Registry of Deeds indexed in the grantor index under the name of the record owner, and noted on the owner's Certificate of Title; If the Special Permit or other approval involves registered property, the decision, at the owner's expense shall also be filed with the Recorder of the Land Court. 17.6.5.9 At the discretion of the PAA, an Applicant seeking approval of a development including both As-Of-Right uses as well as uses requiring a Special Permit or other approval may combine such applications into a single application, and the PAA may combine both hearings and issue a single decision on such a combined development, provided that all requirements for the As-Of-Right development are complied with in accordance with the Enabling Laws and this Section 17.0, and with respect to uses allowed by Special Permit or other approval, are complied with in accordance with M.G.L. c. 40A. 17.7 Project Phasing The PAA, as a condition of any Plan Approval, may require a Project to be phased to mitigate any extraordinary adverse Project impacts on nearby properties. For Projects that are approved and developed in phases, the proportion of Affordable units and the proportion of market rate units shall be consistent across all phases. 17.8 Housing and Housing Affordability 17.8.1 Marketing Plan As part of any application for Plan Approval for housing within the OSGOD, an Applicant for such approval must submit a narrative document and marketing plan that establishes that the proposed development of housing is appropriate for diverse populations, including households with children, other households, individuals, households including individuals with disabilities, and the elderly. These documents in combination, to be submitted with a Plan Approval application pursuant to Section 17.12 below, shall include details about construction related to the provision, within the development, of units that are accessible to the disabled. 17.8.2 Number of Affordable Housing Units For all Projects, not less than twenty percent (20%) of the housing units constructed in the District shall be Affordable Housing, as required by the Enabling Laws. For purposes of calculating the number of units of Affordable Housing required within the District, any fractional unit of 0.5 or greater shall be deemed to constitute a whole unit. 17.8.3 Requirements Affordable Housing shall comply with the following requirements: 1. For an Affordable Rental Unit, the monthly rent payment, including utilities and parking, shall not exceed 30 percent of the maximum monthly income permissible for an Eligible Household, assuming 1.5 persons per bedroom, unless other affordable program rent limits approved by the DHCD shall apply; FN 2. For an Affordable Homeownership Unit the monthly housing payment, including mortgage principal and interest, private mortgage insurance, property taxes, condominium and/or homeowner's association fees, insurance, and parking, shall not exceed 30 percent of the maximum monthly income permissible for an Eligible Household, assuming 1.5 persons per bedroom; and, 3. Affordable Housing required to be offered for rent or sale shall be rented or sold to and occupied only by Eligible Households. 17.8.4 Design and Construction Units of Affordable Housing shall be finished, but not furnished housing units. Units of Affordable Housing shall be dispersed throughout the development of which they are part and be compatible in initial construction quality and exterior design to other housing units in the development. The total number of bedrooms in the Affordable Housing shall be, insofar as practicable, proportionate to the total number of bedrooms in all the units in the development of which the Affordable Housing is part. 17.8.5 Affordable Housing Restriction Each unit of Affordable Housing shall be subject to an Affordable Housing Restriction approved by the PAA which is recorded with the appropriate registry of deeds or district registry of the Land Court and which contains at least the following: 1. Specification of the term of the affordable housing restriction which shall be no less than thirty years, and in the discretion of the PAA,the Restriction may be in perpetuity; 2. The name and address of an administering agency with a designation of its power to monitor and enforce the affordable housing restriction; 3. A description of the Affordable Homeownership Unit, if any, by address and number of bedrooms; and a description of the overall quantity and number of bedrooms and number of bedroom types of Affordable Rental Units in a Project or portion of a Project which are rental. Such restriction shall apply individually to the specifically identified Affordable Homeownership Unit and shall apply to a percentage of rental units of a rental Project or the rental portion of a Project without specific unit identification; 4. Reference to a housing marketing and resident selection plan, to which the Affordable Housing is subject, and which includes an affirmative fair housing marketing program, including public notice and a fair resident selection process. The housing marketing and selection plan may provide for preferences in resident selection to the extent consistent with applicable law for the Affordable Housing Units; the plan shall designate the household size appropriate for a unit with respect to bedroom size and provide that the preference for such Unit shall be given to a household of the appropriate size; 5. A requirement that buyers or tenants will be selected at the initial sale or initial rental and upon all subsequent sales and rentals from a list of Eligible Households compiled in accordance with the housing marketing and selection plan; FN 6. Reference to the formula pursuant to which rent of a rental unit or the maximum resale price of a homeownership will be set; 7. Designation of the priority of the Affordable Housing Restriction over other mortgages and restrictions. 8. A requirement that only an Eligible Household may reside in Affordable Housing and that notice of any lease or sublease of any unit of Affordable Housing shall be given to the administering agency; 9. Provision for effective monitoring and enforcement of the terms and provisions of the affordable housing restriction by the administering agency; 10. Provision that the restriction on an Affordable Homeownership Unit shall run in favor of the administering agency and the Town and/or a nonprofit organization, in a form approved by municipal counsel, and PAA, and shall limit initial sale and resale to and occupancy by an Eligible Household; 11. Provision that the restriction on Affordable Rental Units in a rental Project or rental portion of a Project shall run with the rental Project or rental portion of a Project and shall run in favor of the Administering Agency and the Town and/or a non-profit organization, in a form approved by municipal counsel, and the PAA, and shall limit rental and occupancy to an Eligible Household; 12. Provision that the owner(s) or manager(s) of Affordable Rental Unit(s) shall file an annual report to the administering agency, in a form specified by that agency certifying compliance with the Affordability provisions of this Bylaw and containing such other information as may be reasonably requested in order to ensure affordability; and, 13. A requirement that residents in Affordable Housing provide such information as the administering agency may reasonably request in order to ensure affordability. 17.8.6 Administering Agency An administering agency which may be the Local Housing Authority, or other qualified housing entity (the "Administrating Agency") shall be designated by the PAA as the Administrating Agency for all Projects in the OSGOD. In a case where the Administering Agency cannot adequately carry out its administrative duties,upon certification of this fact by the PAA or by DHCD, such duties shall devolve to and thereafter be administered by a qualified housing entity designated by the PAA or, in the absence of such timely designation, by an entity designated by the DHCD. The Applicant and its successor in title and interest shall pay for the services of the Administering Agency or other such entity providing the services required herein, with such payment not to exceed a reasonable amount for such services to be agreed upon by the PAA and the Applicant. In any event, such Administering Agency shall ensure the following, both prior to issuance of a Building Permit for a Project within the OSGOD, and on a continuing basis thereafter, as the case may be: 1. Prices of Affordable Homeownership Units are properly computed; rental amounts of Affordable Rental Units are properly computed; 2. Income eligibility of households applying for Affordable Housing is properly and reliably determined; FN 3. The housing marketing and resident selection plan conform to all requirements and is properly administered; 4. Sales and rentals are made to Eligible Households chosen in accordance with the housing marketing and resident selection plan with appropriate unit size for each household being properly determined and proper preference being given; 5. Affordable Housing Restrictions meeting the requirements of this section are recorded with the proper registry of deeds; and, 6. Enforce, by litigation or otherwise, the Affordable Housing Restrictions and the foregoing requirements. 17.8.7 Housing Marketing and Selection Plan The housing marketing and selection plan may make provision for payment by the Project applicant of reasonable costs to the administering agency to develop, advertise, and maintain the list of Eligible Households and to monitor and enforce compliance with affordability requirements. 17.8.8 Age Restrictions The District shall not include the imposition of restrictions on age upon the entire District, but the development of specific Projects within the District may be exclusively for the elderly, persons with disabilities, or for assisted living,provided that any such Project shall be in compliance with all applicable fair housing laws and not less than twenty-five percent (25%) of the housing units in such a restricted Project shall be restricted as Affordable units. Any Project, which includes age-restricted residential units, shall comply with applicable federal, state and local fair housing laws and regulations. 17.8.9 Twenty Percent Requirement For all Projects where the Affordable Units proposed are Homeownership Units, not less than twenty percent (20%) of the total housing units constructed in a Project shall be Affordable Housing. For all Projects where the Affordable Units proposed are Rental Units not less than twenty five percent (25%) of total housing units in any building containing rental units shall be Affordable Housing; provided, however, that 20% of such units may be affordable where the Affordable Units are restricted to households earning less than 50% of area median income. For purposes of calculating the number of units of Affordable Housing required within a Project, any fractional unit of 0.5 or greater shall be deemed to constitute a whole unit. 17.8.10 Phasing For housing that is approved and developed in phases, the proportion of Affordable Housing Units (and the proportion of Existing Zoned Units to Bonus Units as described in 760 CNIR 59.04 1(h)) shall be consistent across all phases. 17.8.11 Computation Prior to the granting of any Building Permit for the housing component of a Project, the Applicant must demonstrate, to the satisfaction of the PAA, that the method by which such affordable rents or affordable FN purchase prices are computed shall be consistent with state or federal guidelines for affordability applicable to the Town of North Andover. 17.8.12 No Waiver Notwithstanding anything to the contrary herein,the Affordability provisions in this Section 17.8 shall not be waived. 17.9 Dimensional and Density Requirement Notwithstanding anything to the contrary in this Zoning Bylaw,the dimensional requirements applicable in the OSGOD are as follows: OR Overlay Subdistricts Dimesional Reguirements Mixed-Use Residential District wed-Use Commercial District $usiness Opportunity Zone Minimum Lot Area NA NA 1 Acre-15 Acres Maximum Minimum Lot Frontage on a Public Way N/A N/A N/A Maximum Building Height 55 Feet 55 Feet 55 Feet Minimum Front Setback' 10 Feet Minimum-25 Feet Maximum 0 Feet Minimum-15 Feet Maximum 0 Feet Minimum-10 Feet Maximum Minimum Rear Yard Setback 15 Feet-25 Feet Maximum No required setback No required setback Minimum Side Yard Setback 5 Feet if lot line is on a street. 3 feet minimum-10 feet maximum if adjacent to another lot line. No required setback No required setback Minimum Open Space 20% 15% 15% Allowable Dwelling Units/Acre2 20 20 Not Allowed Minimum Setback between Principal Buildings 0 Feet Minimum-20 Feet Maximum 0 Feet Minimum-20 Feet Maximum 0 Feet Minimum-20 Feet Maximum Minimum Setback between either(a) Accessory Buildings,or(b)Principal Buildings and Accessory Buildings 0 Feet Minimum-25 Feet Maximum 0 Feet Minimum-5 Feet Maximum 0 Feet Minimum-5 Feet Maximum Multiple Buildings on One Lot Allowed Allowed Allowed Floor Area Ratio(FAR) 0.70:1 0.65:1 1 0.90:1 Lot Coverage 1 70% 90% 900/0 Notes: 1.Refer to Section 17.9.1 2.Allowable Dwelling Units Per Acre shall mean the maximum number of Dwelling Units per acre averaged over the entire Residential Mixed Use Overlay District. 17.9.1 Interpretation of Table 1. A front yard setback of 50 feet for property within the OSGOD shall apply only to front yards abutting Route 125 (Osgood Street). There shall be no front yard setback requirement unless specified in the Subdistrict. 2. Open Space shall be"Useable Open Space"which is defined as the part or parts of land within the OSGOD, which are reserved for permanent open space or passive recreation use. This space shall exclude parking areas,but include required setbacks and walkways. The Usable Open Space shall be open and unobstructed to the sky. Trees, planting, arbors, flagpoles, sculptures, fountains, outdoor open-air, passive/active recreational facilities, such items as streetscape elements (lights, planters, benches, etc.), outdoor areas devoted to dining, cafe or similar uses, and decorative surface treatments for sidewalks and other hard surfaces (such as pavers, cobblestones or concrete surface treatments designed to resemble pavers or cobblestones), and similar objects shall not be considered obstructions. No more than 25% of the total amount of required Usable Open Space shall be "wetland" as defined by the requirements of M.G.L. Chapter 131, Section 40, and the Town's Wetland Bylaws. FN 17.10 Parking Requirements Notwithstanding anything to the contrary in this Zoning Bylaw,the parking requirements applicable in the OSGOD are as follows: Residential Uses 1 Residential Use(Minimum) 1 space per dwelling unit. 2 Residential Use(Maximum) 2 spaces per dwelling unit. All other places with including(but not limited to)rooming 1 space per sleeping room for accommodations single or double occupancy, 3 houses,hotels,motels,hospitals,nursing homes. 1 per 2 for rooms exceeding Double beds for rooms exceeding double occupancy Recreation Uses 1 IPassive Recreation(i.e.parks,picnic facilities) 5 spaces per acre. 2 1 Active Recreation(i.e.athletic fields) 1 space per 4 persons based on the design capacity of the fa ility. Business or Commercial Uses 1 Auditoriums,theaters,funeral parlors,day care centers,and 1 space per 4 persons based on the design capacity of the facility. other places of assembly 2 Restaurants-sit down restaurants. 1 per 2 seats or 15 per 1000 GFA.(Whichever greater applies) 3 Retail store and service estabhshement. 5 spaces per 1,000 square feet(6 space per 1,000 s.f.maximum) 4 Offices 1 space per 300 square feet of GFA. 5 1 Medical Offices and Research facilities 3 Spaces per 1000 square feet GFA plus ones ace per employee. 6 1 Warehousing,wholesaling,distributing 1 space per 500 square feet GFA. Mixed Use Development Proiects Residential requirement plus non-residential requirement. Industrial Uses 1 space per 2 employees in the minimum working shift or 1 space per 1,000 1 Manufacturing,assembly,Fabrication,etc GFA(Whichever greater applies). 17.10.1 Interpretation of Table. 1. Unless otherwise approved by the PAA, a minimum of 1 and a maximum of 2.0 off- street parking spaces shall be provided for each residential unit, inclusive of parking spaces within garages. The PAA may allow for additional visitor parking spaces beyond the 2.0 maximum spaces per unit if deemed appropriate given the design, layout and density of the proposed residential or other development. The PAA may allow for a decrease in the required parking as provided in Subsections 4.a through 4.f below. Notwithstanding anything to the contrary herein, an Applicant may satisfy the parking requirements herein even though parking may not be located within the same Subdistrict as the specific use, provided that suitable arrangements to the satisfaction of the PAA are in place to allow for the use of such parking to satisfy the parking requirement; 2. A parking space shall mean an area of not less than 9' x 18', accessible over unobstructed driveways not less than 24'wide. 3. Notwithstanding anything to the contrary herein, the use of shared parking to fulfill parking demands noted above that occur at different times of day is strongly encouraged. Minimum parking requirements above may be reduced by the PAA if the applicant can demonstrate that shared spaces will meet parking demands by using accepted methodologies (e.g. the Urban Land Institute Shared Parking Report, ITE Shared Parking Guidelines, or other approved studies); 4. Notwithstanding anything to the contrary herein, any minimum required amount of parking may be reduced upon a demonstration to the reasonable satisfaction of the PAA that the lesser amount FN of parking will not cause excessive congestion, endanger public safety, or that lesser amount of parking will provide positive environmental or other benefits,taking into consideration: a. The availability of surplus off street parking in the vicinity of the use being served and/or the proximity of a bus or an MBTA transit station; b. The availability of public or commercial parking facilities m the vicinity of the use being served; c. Shared use of off street parking spaces serving other uses having peak user demands at different times; d. Age or other occupancy restrictions which are likely to result in a lower level of auto usage; e. Impact of the parking requirement on the physical environment of the affected lot or the adjacent lots including reduction in green space, destruction of significant existing trees and other vegetation, destruction of existing dwelling units, or loss of pedestrian amenities along public ways; and, f. Such other factors as may be considered by the PAA. 17.11 General Design Standards 17.11.1 Intent In order to ensure high-quality development within the OSGOD and to ensure design that respects the built and natural character of North Andover, the following design standards are established. These standards are intended to be flexible, and applied by the Plan Approval Authority as appropriate to the development as part of the site plan review process to enable the purpose of this District to be realized. While these guidelines apply to all site improvements and buildings and structures, it is not the intent of this section to prescribe or proscribe use of materials or methods of construction regulated by the state building code, but rather to enhance the appearance of the built environment within an OSGOD. In the case of inconsistency between applicable federal and state law, including without limitation state building code or life safety codes and these Design Standards, the applicable federal and state laws, rules and regulations shall govern. 17.11.2 Building and Structure Placement The placement of buildings and structures in an OSGOD shall: 1. Provide for buffering of buildings and structures to adjoining properties either within the proposed OSGOD or to adjacent land uses. Such buffering includes, but is not limited to: landscaping, screening materials,natural barriers, fencing, and related measures; 2. Development should acknowledge Route 125 as its front entry. Rooftop equipment shall be appropriately screened to avoid visual impacts to residential uses; 3. Buildings adjacent to usable open space should generally be oriented to that space, with access to the building opening onto the open space; 4. Provide street trees with tree grates or in planter strips, using appropriate species to provide summer shade, and winter light. Species should be native, resistant to salt and drought, and be tolerant of urban conditions; 5. Orient structures to provide pedestrian entrances to the sidewalk; FN 6. Street design standards shall not be limited to defined rights of way but shall also apply to driveways and internal ways which function as streets; 7. Trash collection and dumpster locations shall be appropriately located and screened to avoid adverse impacts on neighbors and neighboring properties. Within a development, the containment of all solid waste storage and handling within the building(s) of the development is encouraged; and, 8. Any loading docks or areas associated with the mixed-use development component shall be located to minimize(visual and operational)impacts on the site and on neighboring properties. 17.11.3 Open Space 1. Create open space parks within the development; 2. Mature street trees have a high value to the development; minimize departures from development standards that would impair the health of a mature trees; 3. Use landscape materials that are native, sustainable,requiring minimal irrigation or fertilizer; and, 4. Encourage alternative and green paving materials to minimize stormwater run-off. 17.11.4 Building Massing/Articulation The massing of buildings shall: 1. Avoid unbroken building facades longer than fifty feet (50'). Buildings shall not be longer than two hundred ten (210') feet in length, unless waived by the PAA. In approving building lengths that exceed 210', the PAA must find that pedestrian circulation is enhanced by the provision of archways,passageways, or other similar throughways; 2. Mixed-use buildings should incorporate the use of dual facades to foster integration of uses where appropriate; 3. Provide a variety of building heights and varied roofline articulation; and, 4. Buildings on corner lots shall be oriented to the corner and public street fronts. Parking and automobile access shall be located away from the corners, where practical. 17.11.5 Building Appearance and Treatment To the extent not inconsistent with or pre-empted by the state building code, the following shall be considered as applicable: 1. It is not intended that buildings be totally uniform in appearance or that designers and developers be restricted in their creativity. Rather, cohesion and identity can be demonstrated by: a. Similar building scale or mass; b. Consistent use of facade materials; C. Similar ground level detailing, color or signage; FN 2. Preferred exterior building siding materials include brick, stone, wood, cement and composite materials and other types of exterior siding materials upon a determination by the PAA that the quality of such siding will not detract from the aesthetics of the proposed buildings. 3. New Buildings. The design of new buildings shall incorporate architectural features, such as: a. Transom or clerestory windows above entrances, display windows and projected bay windows are encouraged within commercial,retail, and industrial developments. b. Multiple paned windows that divide large areas of glass into smaller parts shall be used. c. Incorporate building entry treatments that are arched or framed and protects people from the elements. d. Non-reflective storefront windows and transoms; architectural detailing on the first floor; and detailing at the roofline. 4. Ground Floor. Transparent, open facades for commercial uses at street level; 5. Middle Floors. Architectural features may include change in materials and color and/ or texture that enhance specific elements of the building; and, 6. Top Floors. Clearly distinguish tops of buildings from the fagade walls by including detail elements such as steep gables with overhangs,parapets and cornices. 17.11.6 Development Environment Pedestrian Open Spaces and Entrances. 1. Entries for residential uses on the street(rather than from the rear of the property); 2. Overhead weather protection shall be designed to minimize gaps in coverage, except to accommodate street trees; 3. Sidewalks shall be surfaced with concrete, brick, or stone materials unless waived by the SPGR; minimum width shall be five feet unless waived by the SPGA; and, 4. Benches for seating shall be provided near retail entrances and at bus stops. At bus stops, such benches shall offer protection from the weather. 17.11.7 Landscaping The landscape design shall strive to provide greenery so that streets and access drives are lined with shade trees, large paved areas are visually divided and screened and buffers are provided within and around the development. Said landscape design shall be prepared and stamped by a registered landscape architect. Landscaping criteria are as follows: 1. Native trees and shrubs shall be planted wherever possible such as lilac, viburnum, day lilies, ferns, red twig, dogwood, oak,maple, sycamore, linden,hawthorne,birch, shadbush, etc.). 2. Provide hedges or continuous shrubs to screen parking areas from streets, where practical; 3. All buildings shall have foundation landscaping, where practical; FN 4. All islands and landscape areas shall be of a minimum width and size to support healthy plant growth. The minimum width for plant beds shall be five (5) feet and an eight (8) foot width for trees; 5. All open areas, exclusive of areas to remain in an existing natural state shall be landscaped, utilizing both natural and man-made materials such as indigenous grasses, trees, shrubs, and attractive paving materials and outdoor furniture; 6. Deciduous trees shall be placed along new and existing streets and ways. Street Trees shall be located every thirty feet (30') on center along both sides of the roadway within the District. The species of street trees selected shall be a minimum of four different species from the list of recommended street trees below: a. Plantanus acerifolia(London Planetree); b. Fraxinus pennsylvanica(Green Ash); c. Ginkgo biloba(Ginkgo); d. Gleditsia triacanthos inermis(Honeylocust); e. Maple; f. Oak; g. Tilia cordata(Little leaf Linden); h. Pyrus calleryana(Chanticleer Callery Pear); and i. Zelkova serrata(Japanese Zelkova) The existing roadways, Route 125 and the existing property driveway, shall have larger trees that typically grow to heights greater than fifty feet. The species of street trees selected shall be a minimum of four different species from the list of recommended street trees below: a. Picea pungens(Colorado Blue Spruce); b. Picea abies (Norway Spruce); c. Fagus grandifolia(American Beech); d. Fraxinus Americana(White Ash); e. Betula alleghaniensis(Yellow Birch); f. Acer saccharum(Sugar Maple); g. Acer rubrum(Red Maple); h. Quercus rubra(Northern Red Oak); i. Quercus coccinea(Scarlet Oak); j. Platanus acerifolia(London Planetree); and k. Betula papyrifera(Paper Birch) 7. Outdoor lighting shall be considered in the landscaping plan and requires the submission of a photometric lighting plan. Cutoff shields shall be used to minimize glare and light spillover onto abutting property. Ornamental streetlights, sixteen feet(16') maximum height on minor roads and twenty-four feet(24')maximum height on major roads; 8. Preservation of existing vegetation or tree-lined areas shall be maintained; and, 9. Landscaped, required open space and green areas, in addition to serving as visual amenities, shall be employed to reduce the rate and volume of stormwater runoff compared to pre-development conditions; for that reason, Department of Environmental (DEP) Stormwater Best Management FN Practices and other measures to minimize runoff and improve water quality shall be implemented. It is also generally intended that said space be designed and located to connect with existing off- site usable open space, and provide potential for connection with future open space by extending to the perimeter of the development particularly when a plan exists for the location and networking of such future open space. 17.11.8 Lighting 1. All artificial lighting used to illuminate residential, commercial, and industrial parking lot, loading bay or driveway shall have underground wiring and shall be so arranged that all direct rays from such lighting falls entirely within the parking, loading or driveway area, and shall be shielded or recessed so as not to shine upon abutting properties or asses; 2. Lighting in display windows to illuminates the sidewalk is recommended; 3. Architectural lighting to complement the architecture of the structure including transparent windows allowing views into and out of the structure; 4. Fixtures that produce glare or that spill light to adjoining sites are prohibited; and, 5. Installation of pedestrian light fixtures as part of a development's sidewalk improvements is strongly encouraged. 17.11.9 Parking Lot Landscaping Parking areas and lots shall use landscaping and terracing to break up large areas of pavement. The following minimum screening and landscaping requirements shall apply for all lots with more than 6 parking spaces: 1. A strip of land at least six (6) feet wide (may be part of required yard setbacks) with trees or shrubs densely planted, to create at least an impervious screen, at least four (4) feet high at the time of planting and which are of a type that may be commonly expected to form a year round impervious screen at least five(5) feet high within three years; 2. If a natural screen as described in item 1 above cannot be attained, a wall or fence of uniform appearance at least five (5) feet high above finished grade will be allowed. Such a wall and/or fence may be perforated,provided that not more than 25%of the face is open; and 3. All required screening, as described in items 1 and 2 above, shall be maintained in good condition at all times. Such screening may be interrupted by entrances or exits, and shall have no signs attached thereto other than those permitted in the district; For all off-street parking areas of 18 or more spaces the following criteria shall also apply. 4. On at least three sides of the perimeter of an outdoor parking lot, there shall be planted at least one tree for every thirty (30) linear feet. In the interior part of an outdoor parking lot where two rows of parking spaces containing a total of 9 or more parking spaces face each other, a landscaped open space not less than 6 feet in width shall be provided. The landscaped strip may be provided either (1) between the rows of parking spaces parallel to the aisle, or (2) in two or more strips FN parallel to the spaces and extending from the aisle serving one row of spaces to the aisle serving the other row of spaces; and, 5. Trees required by this section shall be at least 2.5 inches in diameter at a height four feet above the ground at time of planting and shall be of a species characterized by suitability and hardiness for location in parking lot. To the extent practicable, existing trees shall be retained and used to satisfy this section. Native trees and shrubs shall be planted wherever possible including species such as lilac, viburnum, day lilies, ferns, red twig, dogwood, oak, maple, sycamore, linden, hawthome,birch, shadbush, etc. 17.11.10 Pedestrian Amenities and Recreation Development shall include the following components: 1. Provide long-term, covered,bicycle parking areas; 2. Provide well-lit,transit shelters where necessary; 3. Pedestrian-oriented features such as walkways, pergolas, outdoor sitting plazas, landscaped open space, drop-off areas, and recreational facilities shall be emphasized, and bike racks shall be provided in appropriate locations throughout the site; and, 4. Tree-lined or otherwise appropriately landscaped pedestrian paths and walkways shall link together areas designated as open space within the site, and wherever possible, to adjoining public areas. 17.11.11 Utilities—Basic Requirements 1. Installation: All utility lines, and/or other subsurface facilities within the street rights-of-way shall be installed prior to the placement of the roadway sub-base materials. All electrical and communications lines shall be installed underground. Communications lines shall include, but not be limited to, telephone, Internet and cable; 2. Identification: The applicant shall provide and install utility identification tape for all underground utility installations. The tape shall be placed in the trench a minimum of twelve inches (12") above the pipe, conduit or cable and not less than twelve inches (12") below the finished grade; Identification tape for utilities shall be traceable, durable, and either non-biodegradable plastic or metallic, and shall be approximately six inches (6") wide by four thousandths (.004) inches, or four mil, in thickness; The following colors shall be used unless otherwise specified in the state building codes: a. Orange- Gas b. Yellow-Electric c. Green- Communications(telephone, cable, fire alarm) d. Blue-Water e. Red- Sanitary Sewer FN 3. Easements: Wherever necessary, the Board shall require perpetual, unobstructed easements for sewers, storm drains, power lines, water mains and other utilities. Such easements shall be a minimum width of twenty feet (20'), centered on the utility, and shall be indicated on the site plan approved pursuant to the Plan Approval decision by metes and bounds. The width of an easement may be changed if determined to be acceptable by the PAA or Department of Public Works: a. Easements for water, sewer, electric, telephone lines and drainage piping or channels shall be provided at locations determined by the Board and the Department of Public Works for the provision or extension of utilities within the development or to adjacent properties; b. Where the development is traversed by any open watercourse, drainage way, channel or stream, an easement shall be provided which substantially conforms to the lines of such features for the purpose of protection against encroachment or alteration; c. Where such easement or any part thereof crosses or appears on any developed lot in the development, the deed for said lot shall provide a restriction that shall run with the lot, which prohibits any encroachment or alteration within such easement; d. Utility easements into or crossing any open space or protected area shall be prohibited unless approved by the Board upon the recommendation of the Department of Public Works; e. Where easements have been approved entering into or crossing open spaces or protected areas they shall be restored to reflect as nearly as possible the conditions existing prior to the easement. Vegetative visual buffering required by the Planning Board in such easements shall be the responsibility of the developer and shall be reflected in the development performance guarantee; f. Easements for access to parks and conservation lands abutting a proposed development may be required by the Board. These easements shall be at a width determined by the Board to be sufficient for their purpose but will not normally exceed twenty(20') feet in width; g. The developer may be required to obtain off-site drainage easements when, in the Board's opinion, the development will cause an increase or change in the surface water volumes or velocities, either through open channels or through culverts into or onto any abutting properties; and, h. Where the easement is accessible from the street, the side slope shall be no greater than four feet(4)horizontal to one foot(1')vertical. The first twenty feet(20') of the easement from the back of sidewalk, or edge of roadway, shall have a twelve inch (12") deep base of gravel sub- base material beneath the topsoil to support maintenance equipment. 17.11.12 Signage Associated With The Residential Use Component The residential component shall be limited to three types of sign: name of site, orientation and direction, and to identify common building spaces. At each principal entrance to the site, only one sign identifying the name and address of the development shall be permitted. The sign shall be limited to identifying the name and address of the development. Signs shall be made of natural materials, or have a natural appearance, and may not be interiorly illuminated. The PAA shall require the applicant to submit a signage master plan showing the overall design, location, size and material for all proposed signs within the development. FN The following signs are prohibited in the OSGOD: roof signs, interior illuminated and ground signs (except those associated with the development entrance). 17.11.13 Signage Associated With the Non-Residential and Mixed-Use Component The PAA shall approve signage within the non-residential and mixed-use components of the district(s) as part of the site plan review process. One sign will be permitted at the principal entrance(s) to the non- residential portion of the property. The sign shall be limited to identifying the name and address of the development. 1. One sign per non-residential use is permitted. The attached or hanging sign shall not exceed, in total area,more than ten percent(10%) of the dimensional elevation of the commercial building as determined by the building frontage multiplied by the floor to ceiling height of the individual business or as specified in applicable sections of the by-law; 2. For premises having multiple occupants, a single sign, identifying those occupants is permitted. The total area of attached signs including this one shall not exceed ten percent(10%) of wall area; 3. Temporary unlighted signs inside windows, occupying not more than twenty percent (20%) of the area of the window requires no sign permit; 4. No sign shall project more than three (3) feet over any public right-of-way. The sign shall be covered by appropriate liability insurance as determined by the Building Inspector and verified by a certificate of insurance filed with the Town Clerk; 5. Building directories shall be located inside of the building; 6. Traffic Control orientation and guidance signs located on private property, up to four (4) square feet in area, displayed for purposes of direction or convenience, including signs identifying parking, fire lanes, rest rooms, freight entrances and the like; 7. Design Standards for Signs: a. These standards are not mandatory. b. Sign content normally should not occupy more than forty percent (40%) of the sign background,whether a signboard or a building element. 8. Environmental Relationship a. Overhanging signs should be used only in such circumstances as on side streets where overhanging positioning is necessary for visibility from a major street; b. Sign brightness should not be excessive in relation to background lighting levels, e.g., averaging not in excess of one hundred foot-lamberts and not in excess of twenty foot- lamberts in unlighted outlying areas. 9. Building Relationship: a. Signs should be sized and located so as to not interrupt, obscure or hide the continuity of columns, cornices, roof eaves, sill lines or other elements of building structure Clutter should be avoided by not using support brackets extending above the sign or guy wires and turnbuckles. FN 10. Sign Master Plans. Notwithstanding anything to the contrary to the language contained in Section 17.11.12 and 17.11.13, an Applicant may, in lieu of seeking compliance with the sign provisions described,propose a Master Plan for signs to be permitted on the premises by the PAA. Such sign master plan shall include a listing of each sign type, square footage, location, height, color, materials, and such other information as may be requested by the PAA to confirm that the Master Plan, once implemented, shall consist of a single coordinated and clear plan for signage within said premises which generally conform to the Guidelines described in Sections 17.11.12 and 17.11.13, as applicable. 17.11.14 Roadways Private roadways shall be allowed in OSGOD. 1. While roadway surface widths may be narrower than widths associated with a traditional subdivision, the durability of private roadway surfaces and sub surfaces within an OSGOD and should be designed based on standard engineering principals. Waivers of the following standards may be granted when appropriate. The following criteria apply: Roadway Criterion .Minimum Maximum Min. ROW Width 50 feet 60 feet Min. Pavement Width 18 feet 26 feet Min. Centerline Curve Radius 225 feet 250 feet Min. Tangent length between 150 feet 150 feet reverse curves Min. Intersection Corner Curb 40 feet 40 feet Radius Min. Horizontal and Vertical Site 200 feet 250 feet distance Centerline Profile Grade—Max. 8% 7% Centerline Profile Grade—Min. 1% 1% Vertical Curve—Min. Length 100 feet 100 feet Vertical Curve: K Value—Crest 30 30 Vertical Curve: K Value—Sag 40 40 40 Pavement Cross Slope—Normal 3% 3% Crown Maximum Super elevation 1 6% 6% 2. The PAA shall encourage narrow pavement widths for traveled ways when appropriate. Pavement widths for traveled ways (excluding on-street parking spaces) shall not be less than eighteen feet (18) or more than twenty six (26) feet for two-way traffic, or less than fourteen (14) feet for one- way traffic. The PAA will have discretion to waive these standards when considering public safety and circulation issues, but under no circumstance shall vehicular ways be less than 14 feet wide; 3. Parking and vehicle access: a. Provide for continuous sidewalks that are minimally broken within a block by vehicular access. b. Unstructured surface parking areas facing the main street frontages are discouraged. FN c. Parking areas shall be setback from structures,property lines and internal ways by a minimum of 10 feet. d. Multi-purpose parking areas paved with unit pavers are encouraged (i.e., areas that serve both parking and public open space needs). 4. All two-way traveled ways shall provide a pedestrian sidewalk of a minimum six-foot (6') width on both sides of the roadway. All sidewalks shall be of standard concrete or brick set in concrete and are encouraged where applicable. Minor ways may provide a pedestrian sidewalk on a minimum of one side of the roadway. On cul-de-sac turnarounds and at intersections, vertical granite curbing shall be required. Vertical granite curb inlets with curb transition sections shall be required at the back of catch basins, on grades over six (6) percent, and at the intersections with arterial streets; S. Crosswalks with handicap accessible curb cuts shall be provided at all intersections. All crosswalks and curb cuts shall comply with the requirements of the Massachusetts Architectural Access Board(MA—AB) and/or Americans with Disabilities Act(ADA)requirements; and, 6. Streetscape elements shall be encouraged, including: a. Sidewalks and crosswalks as noted above; b. Ornamental street lights, sixteen feet (16') maximum height on minor roads, twenty-four feet (24')maximum height on major roads; c. Brick, concrete or other specialty pavements at building entrances; d. Ornamental fences of less than thirty inches(30")in height,when appropriate; e. Ornamental bollards to direct pedestrian traffic and define public space. 17.11.15 Storm Drainage Storm water drainage systems shall be subject to the most recent Massachusetts laws, regulations, polices and guidelines including but not limited to the DEP Stormwater Management Policy, as amended, as well as local bylaws. The design,construction and maintenance of stormwater systems shall be consistent with the following: 1. Detention/Retention Basin Side Slopes. Basin area side slopes shall be kept as close as possible to natural land contours, i.e. ten percent (10%) or less wherever possible. A maximum 3:1 side slope shall be constructed for the interior of the basin areas. For security purposes fencing may be required by the PAA. Drainage basins shall be designed to facilitate access for maintenance vehicles and personnel; 2. Drainage Easements. If it is necessary to carry drainage across lots within the development, storm drainage easements shall be provided, of such width and construction as will be adequate to accommodate the volume and velocity of the run-off. However, no such easement shall be less than thirty feet(30')in width; If a proposed drainage system would carry water across land outside the development boundaries to an approved outfall, appropriate drainage rights shall be secured by the applicant at the applicant's expense, and shall be referenced on the 40R Plan; FN 3. Discharging runoff directly into rivers, streams, watercourses, or enlarging the volume, rate or further degrading the quality of existing discharges/runoff is prohibited. Runoff shall be routed through vegetated swales, using native species and other structural and nonstructural systems designed to increase time of concentration, decrease velocity, increase infiltration, allow suspended solids to settle and remove pollutants. Such systems will utilize overland flow and re- infiltration as priority techniques for the treatment of run-off; 4. Retention and detention ponds, and methods of overland flow may be used to retain, detain and treat the increased and accelerated runoff which the development generates; 5. There shall be a minimum of two (2') feet of naturally occurring soils between the detention basin bottom and the maximum annual ground water table; 6. Water shall be released from detention ponds at a rate and in a manner approximating the natural conditions which would have occurred before development; 7. Intermittent water courses such as swales shall be vegetated; 8. The first one (I") inch of runoff from impervious surfaces, such as rooftops and paved surfaces, shall be treated in the site of the development; 9. Runoff from parking lots and streets shall be treated to remove oil and sediments. Catch basins shall be provided with hoods; in the alternative, drainage outfalls shall discharge to low velocity "vegetated treatment" swales; 10. The use of drainage facilities and vegetated buffer zones as open space and conservation areas shall be encouraged; and, 11.Neighboring properties shall not be affected by flooding from excessive runoff. 17.11.16 Water Facilities 1. Installation. The applicant shall be responsible for installing water facilities, including, but not limited to water supply, pipes, hydrants, hydrant markers, gates, valves, and all other related appurtenances, in accordance with the Regulations and Master Plan of the Water Department. Any extension of an existing pipe and construction of new pipes requires approval from the Water Department. Building service pipes and appurtenances from the system piping to the exterior line of the street right-of-way shall be constructed for each lot unless the Board of Health has approved individual wells. Said water facilities shall be shown on the 40R plan; 2. Fire Hydrants. Fire hydrants shall be required throughout the entire development. Fire hydrants, with hydrant markers, shall be located not more than five hundred feet (500') apart; shall be approved, in writing, as to location by the Fire Chief and the DPW; and shall be shown on the 40R Plan; 3. Extensions. Reasonable provisions shall be made for extension of the water system and pipes to adjoining property, including installation of water gates. Appropriate easements may be required; 17.11.17 Sewer FN 1. Installation. In the event that the Town sanitary sewer system is located within an existing public way within four hundred feet (400') measured along the existing public way or proposed roadway of the development, the applicant shall be responsible for connecting all lots to the sewerage system unless there are legal, design or operational considerations, in which case, alternative arrangements for sewage disposal such as through the existing on-site sewage treatment plant or other methods permitted by law may be utilized. If applicable, connection to the system shall require an approval from the DPW, and any other required approvals, including,but not limited to approvals issued by the Greater Lawrence Sanitary District, and a permit for extension/connection of the sewer system issued by the Massachusetts Department of Environmental Protection's Division of Water Pollution Control. 17.11.18 Electric and Communication Lines 1. Installation. All electrical and communications lines shall be installed underground. Communications lines shall include, but not be limited to, telephone and community antenna television cable; 2. Electric Lines. The electrical power distribution shall be installed in accordance with the specifications of the Rules and Regulations of the Department of Public Works of the Town of North Andover in effect at the time of application. 17.11.19 Street Signs Street signs shall be installed at all intersections in conformity with the specifications of the Department of Public Works. The signposts at the intersection of each street with any other street, shall have affixed thereto a sign designating such street as a private way. 17.11.20 Monuments Monuments shall be four feet long, 6 inch square concrete or granite, and shall be installed at all roadway intersections, at all points of change in direction or at curvature of roadways, at two (2) property corners of all new lots and at any other points where, in the opinion of the Board, permanent monuments are necessary. 1. Monument Spacing. Monuments located in the street right-of-way shall be spaced so as to be within sight of each other, the sight lines being contained wholly within the street right-of-way limits. The maximum interval shall be one thousand feet(1000'); 2. Monument Materials. Monuments shall be standard granite markers of not less than four feet (4') in length and not less than five inches (5") square, and shall have a drill hole in the center. If subsoil conditions prohibit installation of four (4) foot monuments, with advance approval by the Board, monuments meeting alternative specifications shall be installed. Monuments shall be set flush with the finished grade; and 3. Monument Certification. No permanent monuments shall be installed until all construction, which would destroy or disturb the monuments is completed. Placement and location of bounds are to be certified by a registered professional land surveyor after installation of the street, and shall be shown on the "as-built" or record plans. 17.11.21 Subzone Design Standards FN 1. Residential Mixed-Use Zone Location: As shown on the OSGOD Map. a. Building Type: The dwelling units in Residential Mixed-Use Zone may be situated in a single structure or in multiple structures. b. Nonresidential Uses: If a building containing residential uses also includes permitted retail, restaurant, and professional services or other uses in the Residential Mixed-Use Zone, the nonresidential uses shall be centrally located on the ground floor of the building in which it is contained. Notwithstanding the foregoing, non-residential uses are preferred,but not required, to be located in buildings containing residential uses, and non-residential uses may be located in buildings which are separate from buildings containing residential uses as long as the non- residential use and building are designed to complement the primary residential use. Z Mixed-Use Development Zone Location: As shown on the OSGOD Map. a. Building Type: For buildings which include a mix of residential and non-residential uses, the dwelling units in such buildings shall be situated over the allowed non residential space. Buildings may also be constructed which contain either solely residential uses or solely non- residential uses. b. Nonresidential Uses: Non-residential uses are not required to be located in buildings containing residential uses, and non-residential uses may be located in buildings which include no residential uses. 3. Business Opportunity Development Subzone a. Permitted uses in the Business Opportunity Development Subzone shall not exceed 150,000 square feet per development unless waived by the PAA. 17.12 Application for Plan Approval 17.12.1 Preapplication Prior to the submittal of a site plan, a"Concept Plan"may be submitted to help guide the development of the definitive site plan for site buildout and individual elements thereof. Such Concept Plan should reflect the following: 1. Overall building envelope areas; 2. Approximate building massing, showing heights; 3. Open space and natural resource areas; and, 4. General site improvements, groupings of buildings, and proposed land uses. The Concept Plan is intended to be used as a tool for both the applicant and the PAA to ensure that the proposed development design will be consistent with the design standards and other requirements of the OSGOD. 17.12.2 Application Submission. FN An application for Plan Approval shall be submitted to the PAA on the form provided by the PAA, along with application fees which shall be as set forth in the Regulations. 17.12.3 Required Submittals The application for Plan Approval shall be accompanied by such plans and documents as may be required and set forth in the PAA's Regulations. All site plans shall be prepared by a certified architect, landscape architect, and/or a civil engineer registered in the Commonwealth of Massachusetts. All landscape plans shall be prepared by a certified landscape architect registered in the Commonwealth of Massachusetts. All building elevations shall be prepared by a certified architect registered in the Commonwealth of Massachusetts. All plans shall be signed and stamped, and drawings prepared at a scale of one inch equals forty feet(1"=40') or larger, or at a scale as approved in advance by the PAA. 17.13 Procedures 17.13.1 Filing An applicant for Plan Approval shall file the required number of copies of the application form and the other required submittals as set forth in the Regulations with the Town Clerk, and a copy of the application including the date of filing certified by the Town Clerk shall be filed forthwith with the PAA. An Applicant is encouraged to review the final application with the PAA or its Agent to confirm application completeness prior to filing the final application with the Town Clerk and PAA. 17.13.2 Circulation to Other Boards Upon receipt of the Application, the PAA shall immediately provide a copy of the application materials to the Board of Selectmen, Board of Appeals, Board of Health, Conservation Commission, Fire Department, Police Department, Building Commissioner, Department of Public Works, and other municipal officers, agencies or boards for comment, and any such board, agency or officer shall provide any written comments within 60 days of its receipt of a copy of the plan and application for approval. 17.13.3 Hearing The PAA shall hold a public hearing for which notice has been given as provided in Section 11 of G.L. Chapter 40A. The decision of the PAA shall be made, and a written notice of the decision filed with the Town Clerk, within 120 days of the receipt of the application by the Town Clerk. The required time limits for such action may be extended by written agreement between the applicant and the PAA, with a copy of such agreement being filed in the office of the Town Clerk. Failure of the PAA to take action within said 120 days or extended time, if applicable, shall be deemed to be an approval of the application and site plan. 17.13.4 Peer Review The applicant shall be required to pay for reasonable consulting fees to provide peer review of the Plan Approval application,pursuant to G.L. c. 40R. Such fees shall be held by the Town in a separate account and used only for expenses associated with the review of the application by outside consultants, including, but not limited to, attorneys, town counsel, engineers, urban designers, housing consultants, planners, and others. Any surplus remaining after the completion of such review, including any interest accrued shall be returned to the applicant. FN 17.14 Decision 17.14.1 Waivers Upon the request of the Applicant, but subject to Section 17.8.12 as to Affordability, the Plan Approval Authority may waive dimensional and any other requirements of Section 17.0, including but not limited to, the design standards of Section 17.10, in the interests of design flexibility and overall development quality, and upon a finding of consistency of such variation with the overall purpose and objectives of the OSGOD, or if it finds that such waiver will allow the development to achieve the density, Affordability, mix of uses, and/or physical character allowable under this Sectionl7.0. 17.14.2 Plan Review An Application for Plan Approval shall be reviewed for consistency with the purpose and intent of this Section, and such Plan Review and shall be construed as an as-of-right review and approval process as required by and in accordance with the Enabling Laws. 17.14.3 Plan Approval Plan Approval shall be granted where the PAA finds that: 1. The applicant has submitted the required fees and information as set forth in the Regulations; 2. The development and site plan meet the requirements and standards set forth this Section 17.0, or a waiver has been granted there from; and, 3. Any extraordinary adverse potential impacts of the development on nearby properties have been adequately mitigated. 17.14.4 Plan Disapproval A site plan may be disapproved only where the PAA finds that: 1. The applicant has not submitted the required fees and information as set forth in the Regulations; or 2. The development and site plan do not meet the requirements and standards set forth this Section 17.0, or a waiver has been granted there from; or 3. It is not possible to adequately mitigate significant adverse potential impacts on nearby properties by means of suitable conditions. 17.14.5 Form of Decision The PAA shall issue to the applicant a copy of its decision containing the name and address of the owner, identifying the land affected, and the plans that were the subject of the decision, and certifying that a copy of the decision has been filed with the Town Clerk and that all plans referred to in the decision are on file with the PAA. If twenty(20) days have elapsed after the decision has been filed in the office of the Town Clerk without an appeal having been filed or if such appeal, having been filed, is dismissed or denied, the FN Town Clerk shall so certify on a copy of the decision. If a plan is approved by reason of the failure of the PAA to timely act, the Town Clerk shall make such certification on a copy of the application or notice. A copy of the decision or application bearing such certification shall be recorded in the registry of deeds for the county and district in which the land is located and indexed in the grantor index under the name of the owner of record or recorded and noted on the owner's certificate of title. The fee for recording or registering shall be paid by the applicant. 17.15 Change in Plans after Approval by PAA 17.15.1 Minor Change After Plan Approval, an applicant may be apply to make minor changes involving minor utility or building orientation adjustments, or minor adjustments to parking or other site details that do not affect the overall buildout or building envelope of the site, or provision of open space, number of housing units, or housing need or affordability features. Such minor changes must be submitted to the PAA on redlined prints of the approved plan, reflecting the proposed change, and on application forms provided by the PAA. The PAA may authorize such changes at any regularly scheduled meeting, without need upholding a public hearing. The PAA shall set forth any decision to approve or deny such minor change by motion and written decision, and provide a copy to the applicant for filing with the Town Clerk. 17.15.2 Major Change Those changes deemed by the PAA to constitute a major change because of the nature of the change in relation to the prior approved plan, or because such change cannot be appropriately characterized as a minor change as described above, shall be processed by the PAA as a new application for Plan Approval pursuant to this Section 17.0. 17.16 Severability and Authority. This Section 17.0 is promulgated pursuant to the authority of G.L. c. 40R and G.L. c. 40A, as applicable. If any provision of this Section 17 is found to be invalid by a court of competent jurisdiction, the remainder of Section 17 shall not be affected but shall remain in full force and effect. The invalidity of any provisions of this Section 17 shall not affect the validity of the remainder of this Section. 1. In all districts except Village Commercial and any Corridor Development District, front setbacks along Route 114 shall be a minimum of 100'. Front setbacks shall be 100' along 125 in Industrial 1 and 2 Districts;the first 50' of front setbacks under this requirement shall be made to provide an effective visual buffer and no parking shall be permitted. 2. Adjacent to residential district, an additional 15 foot side or rear setback shall be required. The first 15 feet of the total setback abutting the residential district shall remain open and green, be suitably landscaped,un-built upon,unpaved and not parked upon. In the Business 2 District, the side yard requirements may be eliminated when two (2) adjoining property owners agree to share a party wall. 3. Adjacent to residential districts, the required side or rear setback shall be 100 feet. The first 50 feet of such setback abutting the residential district shall remain open and green,be suitably landscaped,un-built upon,unpaved and not parked upon. FN 4. If an enclosed parking structure is provided, lot coverage may be increased up to the amount of such parking area but not exceed a total coverage of 45%. 5. Minimum lot size for a townhouse complex shall be 43, 560 square feet although individual townhouse lots may be a minimum of 3,000 square feet. Minimum lot size for an apartment complex shall be 60,000 square feet. 6. Dimensional regulations for townhouse complexes shall meet the requirement of the Residence 5 District; individual townhouses within the complex,however, shall be regulated as follows: Minimum Street Frontage 18 Feet Minimum Front Setback 30 Feet Minimum Side Setback None required where a party wall is constructed between units; otherwise a 25 foot side setback shall be provided. Minimum Rear Setback 30 Feet Maximum Floor Area Ratio: 1.20:1 Maximum Lot Contiguous Units: 10 7. The Following additional requirements shall apply when apartments or townhouse complexes are constructed in this district. a. There shall be a paved driveway or paved walk adequate to accommodate emergency vehicles within 50 feet of the outside entrance of each dwelling unit. b. Any road providing access to townhouses or lots intended for townhouses shall conform to the Subdivision Control Regulations of the Planning Board. C. Any road providing access to more than 18 apartment dwelling units or more than 24 parking spaces shall conform to appropriate provisions of the Subdivision Control Regulations as if it were a minor residential street. Before issuing a building permit in such cases, the Building Inspector shall obtain a report from the Planning Board on the extent of such conformity. d. Maximum height(apartment building): 40 feet. e. Maximum stories of living quarters(apartment building): 3. £ Maximum units per structure(apartment building): 18. 8. In Residence 4 Districts only, front setback may be the average of all front setbacks of dwelling units within 250 feet on either side of lot. Buildings on corner lots shall have the required front setback from both streets except in the Residence 4 Districts, where setback from the side street shall be a minimum of 20 feet. 9. Nursing and convalescent homes shall have at least 600 square feet of lot area per bed. Minimum lot size for such homes in Rl, R2, and R3 shall be 2 acres. 10. Where a public sanitary disposal site is the primary use, the setback area shall be used to provide a screening,natural or artificial, from adjacent residential use of public roadway. FN 11. Where a public sanitary disposal site is the primary use, an increase up to 100%of the lot coverage shall apply,not including the setback areas. 12. If multi-family structures are selected to attain the maximum density allowed,the proposed project shall be subject to the minimum open space requirements found in Section 8.5 (Planned Residential Development), and to the site plan review requirements of Section 8.3. In the instance where no public sewer service is provided and there is no private sewer system acceptable to the Town, the allowed density in the Village Residential - Zone shall be one dwelling unit per acre and said dwelling and associated lot shall conform to all the regulations consistent with development in the R-2 Zone. Further, under no circumstances shall multi-family development be allowed in the Village Residential Zone,regardless of density,without the provisions of public sewer or a town approved and accepted private sewer system. 13 In instances where a lot fronts on Route 114, for purposes of public safety, the required lot frontage shall be 250 feet. This restriction does not apply to the Corridor Development District." 14 The dimensional criteria described in the table below applies only to detached single family development. Multi-family structures developed in this district shall be subject to all criteria applicable to multi-family developments as stated in Section 8.5. However, in no instances shall the bonus density subsections of Section 8.5 apply in the Village Residential District. 15 In accordance with the procedures and regulations set forth in Section 10.3 and 10.31 of this Bylaw, an application for a special permit may be submitted to increase the allowed Floor Area Ratio (Maximum) from 0.25:1 to 0.30:1 provided that at least 5,000 sq. ft. (excluding basements) of the resulting gross floor area be deeded to the Town for public use purposes; that at least 2,500 sq. ft. of said area be located at street level, and that the entire square footage, exclusive of basements, deeded to the Town be supported with parking spaces at the rate of one space per 250 square feet. 16 Open space shall be consistent with the definition of usable open space as contained in Section 8.5, subsection 5f. Usable Open Space no loading areas shall be allowed on the usable open space. All required front,rear, and side yard requirements may be calculated as part of the usable open space,but in no instance shall any area designated for open space be less than 15 feet in width. Further,no more than 25% of the total area required for open space shall be a wetland area, and no permanent or standing water bodies shall be calculated as part of the required open space. 17. Village Commercial Dimensional Requirements Setbacks FN Objective: The setbacks have been determined and arranged in such a way as to promote a quality development which lends itself to the surrounding community in an un-obstructive manner. a. Front setbacks for structure along Route 114 shall be a minimum of 50', all of which shall be used as an effective visual buffer. No parking shall be allowed within that 50' buffer. Any roadways or drives within that 50' buffer shall be as necessary for access only. b. When adjacent to a Residential District the minimum setback shall be 40', with the first 25' remaining as an effective visual buffer. The Planning Board may allow the minimum setback adjacent to a Residential District to be reduced to 25' providing that the maximum height of the proposed structure be 25',not to exceed one(1) story. Further, for every 1 foot that the structure is moved closer than 40' to the Residential Property Line the maximum allowed height of the structure shall be reduced by 1 foot(See Diagram 1). In no instances shall a structure be closer than 25' to a side or rear setback. Any roadway or drives within those setbacks shall be as necessary for access only. Zoning Bylaw Footnotes and Graphics Footnote 17,Village Commercial Dimensional Requirements- Diagram 1 Graphics from Section 8.4.4 .I I r s I` I I + I I , FN Table 1:Summary Of Use Regulations Zoning Districts OSGOD Smart Growth Overlay Residential Commerical Industrial RMUZ Permitted Use RI-3 R4 VR R5 Rb Bl B2 B3 B4 VC GB PCD CDDI CDD2 CDD3 Il U I3 IS = I Agricultural Use* Y Y Y Y Y Y Y Y Y N Y Y N Y N Y Y Y Y Y Y Y Art Gallery N N N N SP Y Y Y Y Y Y SP* Y Y Y Y Y Y N N Y Y Auto Service Station* N N N N N N Y* Y* N N Y N N N N N Y* N SP N N N Auto&Vehicle Repair/Roy Shot) N N N N N N N N N N Y N N N N N Y N N N N N Bus Garage N N N N N N N N N N Y N N N N N Y N Y N N N Business&Other Offices N N N N Y N* Y Y Y Y Y Y Y Y Y Y Y Y Y N Y Y Car Wash N N N N N N N N N Y Y N N N N N Y N N N N N Commuter Rail System N N N Y Congregate Housing N SP N N N N N N N N N SP N N N N N N N Y Y N Continuing Care Retirement Center Y* N N N N N N N N N N N N N N N N N N Y Y N Day Care Center SP SP SP SP SP SP SP SP SP SP SP SP N SP Y SP SP SP SP Y Y N Eating&Drinking Establishment N N N N* SP* N* Y Y N* Y Y SP* Y Y Y N* N* N* SP Yr Y1 Y Funeral Parlor N N N N SP N Y Y N Y Y SP* Y Y Y N N N N N Y Y Golf Course Y Y Y Y Y N N N N N N Y N N Y Y Y Y Y N N Y Guest House N Y Y Y Y N N N N N N Y N N N N N N N N Y N Incubator or Business Park N N Y Y Independent Elderly Housing Y N N N N N N N N N N N N N N N N N N Y Y N Indoor Place of Amusement or Assembly N N N N N N Y Y N Y Y N N Y Y N N N N N SP SP Indoor Ice Skating Facility N N N N N N N N N N N N N Y Y SP SP SP N N SP SP Lumber,Fuel Storage or Contractor's Yard N N N N N N N N N Y Y N N N N N Y Y Y N N N Manufacturing* N N N N N N N N N N N N N N N Y Y Y Y N N Y Medical Center* N N N N N N Y Y Y Y Y N Y Y Y Y Y Y N N Y Y Motet or Hotel N N N SP N N N N Y* N N SP* N N Y N N N N N Y Y Multi-Family Dwellings&Apts. :.:-;::. N N Y** Y* Y Y SP N N N N SP* N N N N N N N N N N Municipal Recreation Area Y Y Y N Y N N N N N N Y Y Y Y N N N N N N N New Car Sales* N N N N N N N Y N Y Y N N N N N N N N Y SP SP Non-Profit School Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y N Y N Nursing&Convalescent Homes' SP SP SP SP SP N N N Y N N SP N N N N N N N N N N One-Fanu"ly Dwelling Y Y Y Y Y Y N N N N N Y N N N N N N N Y1 Y Y Personal services N N N N* SP* Y Y Y N* Y Y N Y Y Y N* N* N* N* Y Y Y Places of Worship Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y N N Y Printing&Reproduction .... N N N N SP* N Y Y Y Y Y N N Y Y Y Y Y Y Y SP SP Private School for Profit S' SP SP SP SP SP N Y Y Y Y Y SP Y Y Y Y Y Y Y N Y Y Professional Offices* N* N* N* Y* Y* Y Y Y Y Y Y Y Y Y Y Y Y Y Y N Y Y Public Building or Use SP SP SP SP SP Y Y Y Y Y Y SP Y Y Y Y Y Y Y N SP SP Public Garages&Accessory Buildings N N N N N N N N N N N N N N N N N Y N N N N Public Service Corporation N N N N SP N N N N N N N Y Y Y N N Y N N N N Public Sanitary Disposal Site N N N N N N N N N N N N N N N N N Y N N N N Public Storage of Equioment N N N N N N N N N N N N N N N N N Y N N N N Recreation Area SP SP SP SP SP SP SP SP SP SP SP SP N Y Y SP SP SP N Y Y Y Research&Development Facilities N N N N SP N N Y Y Y Y N N N Y Y Y Y Y N SP Y Retail Establishment N N N N* SP Y Y Y N* Y* Y* SP* Y Y Y N* N* N* N* Yt Y] Y Retail Plaza N* N SP Y Rooming House Y* Y* Y* Y* Y* N N N N N N Y* N N N N N N N N N N Tanis Depot N N N N N N Y Y N Y Y N N N N N N N N N N N Town House N NN7NN N SP N N N N N N N N N N N N N N N Two Family Dwelling N SP* YY N N N N N SP* N N N N N N N N N N Veterinary Hospital&Kennel N N NN N N N N N N N N Y N Y N N N N N Warehousing&Wholesaling ' N N NN N N N Y Y N N N Y N* Y N* Y N N N Windmill'< N N N Y SP: Allowable with a Special Permit only. Note: This Chart is for summary information purposes only and is not a substitute for the detailed District Use Regulations in Section 4 of this Bylaw. * See detailed District Use Regulations in Section 4 of this Bylaw. ** Only with the provision of publicly owned and maintained sewers or Town approved and accepted private sewers. (see Footnote 12 of Table 2)and with no more than 5 dwelling units per structure Y'-Refer to Sections 17.6.1 and 17.6.2 for gross floor area restrictions. Table 2:Summary Of Demensional Requirements Rea. tics. tees. Res: Village Res. [tea. t3lia, :Bas. ...Bas. a" Village PCD Gtaerat coo, Cop Coit Ind. Ind. tad, Ind. Rea.(1d) .{)E?} 6 .,'. .z,t. .. :. 4 C'pmus.- Bas. 3 t: S X 7W mi87,120 43,560 25,000 12,500 43,560 43,560['1 Min.S.F. 130,680 25,000 25,000 120,000 80,000 90,000 150,000 25,000 43,560 87,120 108,900 80,000 80,000 435,600 50,000 n.S.F. Height 35 35 35 35 35 35 35 35 35 35 60 40*(17) 35*** 45 35 35 45 55 55 55 55 Max M St"tprdatbge 175 150 125 100 85(13) 150 1501191 125 125 300 200 200 300 125 150 250 250 150 150 150 150 Min D Front Setback 30 30 30 30181 25 30 25 30 25 100 50 50**(17x1) 100 25 10111 10111 15111 50 50 ]0011) 30 Min. tit Side Setback 30 30 20 15 15 25 15 20(2) 25(2) 50(3) 50(3) 25**(17) 50 25(2) 15 15 20 500) 50 13) 20011p 20(2) V Mite. ft Rear Setback' 30 30 30 30 30 30 30 30(2) 30(2) 50(3) 50 25**(17) 50 35(2) 20 25 30 5013) 50(') 200(10) 30(2) Min 11 Floor Area N/A N/A N/A N/A N/A 0.75:1 0.25:1119) 0.30:1 0.75:1 0.40:1 1.50:1 N/A 0.75:1 N/A 0.75:1 0.75:1 0.75:1 0.50:1 0.50:1 0.50:1 0.50:1 Ratia Max. Lot Coverage N/A N/A N/A N/A N/A 20% 20% 30% 35% 30% 25% 25% 25% 35% 70% 70% 70% 35% 35% 35%(1q 35% Max. Dwelling Unit Density N/A N/A N/A N/A 1/acre(12) Multi-Fanr(12) 9/acre 112) N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A MaxlAcre Town House Open Space 25%**116) 30% 30% 30% *Tk-o stories not to exceed 40ft. Refer to Sections 8.1(13)and 8.4(6) *See detailed District Use Regulations Please refer to footnotes for additional information RECEIVED rOlY�t Ci.�_Rt('S OFFICE: TOWN OF NORTH ANDOVER 2009SEP lM I(» 7 ZONING BOARD OF APPEALS ro F4'�1 OF NORTH A1,40O LSE Property Owner&.Location: MASSACHUSETTS i Trinitarian Congregational Church 70 Elm Street North Andover,Massachusetts NATURE OF PROCEEDING: i Appeal from a Decision of the Building Inspector/Zoning Enforcement Officer that no variance is required for MetroPCS Massachusetts,LLC (MetroPCS)or Trinitarian Congregational Church to install and operate wireless communication facilities on a residentially zoned property with ! less than the 600' setback between such facilities and residences,including petitioner's residence,and schools,as specified in Section 8.9.3(c)(v)of the North Andover Zoning Bylaw and from the issuance of a building permit for the construction of such facilities in the absence of a variance from the North Andover Zoning Board of Appeals from the requirements of said Section 8.9.3(c)(v).. NOTICE OF CONSTRUCTIVE APPROVAL OF PETITIONER'S APPEAL AND GRANT OF THE RELIEF REQUESTED THEREIN The North Andover Building Commissioner granted a building permit(#628)to MetroPCS and the Trinitarian Congregational Church on May 18,2009. The petitioner,Lizetta M.Fennessy,77 Elm Street,North Andover,,filed an appeal with the Zoning Board of Appeals on May 28,2009, She claimed, inter alfa,the Decision of the North Andover Building Inspector/Zoning Enforcement Officer,Gerald A.Brown,that the 600' setback requirement of Section 8.9.3(c)(v)of the Zoning Bylaw did not apply to the MetroPCS/Trinitarian Congregational Church application for a building permit and that accordingly no variance from that requirement by the Zoning Board of Appeals was required before he could lawfully issue a building permit. She also claimed that the Building Inspector/Zoning Enforcement Officer wrongfully issued a building permit(#628)to MetroPCS and Trinitarian Congregational Church in violation of Section 8.9,3(c)(v)of the North Andover Zoning By-Law. Massachusetts General Laws,chapter 40A, section fifteen,provides that"[t]he decision of the board[of appeals] shall be made within one hundred days after the date of the filing of an appeal, application or petition. . . "and that"failure by the board to act within said one hundred days . . . shall be deemed to be the grant of the appeal,application or petition." Section fifteen also refers to"approval [of petitioner's appeal]by reason of the failure of the board to act within the time prescribed." The North Andover Zoning Board of Appeals failed to act on petitioner's,appeal within the time limit provided by U,L. c.40A, § 15. It filed no notice of any Decision with the North i Andover Town Clerk on or before September 5,2009 (100 days after the application was filed Qn May 28,2009)or on or before Tuesday,September'8,2009(September 5 k being the Saturday of the Labor Day Weekend), The petitioner claims that her petition and appeal has been affirmed, approved, and/or granted and that she is entitled to the relief requested therein from the Decision and issuance of a building permit by the North Andover Building Inspector/Zoning Enforcement Officer. She claims the allowance of the requested findings "that the ZBA reverse and vacate the decision of the Building Commissioner with respect to Building Permit#628 granted 5/18/09 on the basis that no variance was granted for the 600 ft. setback required per 8.9.3(c)(v)of the bylaw." "that the Zoning Board of Appeals reverse and vacate the decision of the Building Commissioner with respect to the setback provisions of the Zoning Bylaw for residences and schools. . .that the Zoning Board of Appeals reverse the decision of the Building Commissioner to issue a building permit to MetroPCS for construction and operation of commercial wireless communication facilities in the Trinitarian Congregational Church and that the building permit be vacated, rescinded,and recalled as void and of no effect." and of the other relief as requested in her appeal to the Zoning Board of Appeals. The petitioner has sent a copy of this Notice by mail to parties in interest(see the attached Declaration of Service,incorporated herein). Each such Notice specifies, as here,that appeals,if any,of this claimed construptive approval shall be made pursuant to Massachusetts General Laws,chapter 40A,section seventeen,and shall be filed within twenty days after the date the North Andover Town Clerk received this written Notice from the petitioner that the Zoning Board of Appeals failed to act within the time prescribed by-statute. This Notice is filed with the North Andover Town Clerk on Monday, September 21,2009, AL ta M."Vennessyy Petitioner i DECLARATION OF SERVICE I,Lizette M.Fennessy,hereby solemnly affirm and declare under the penalties of perjury, as follows: I mailed on September 21,2009,by United States Postal Service,first-class mail, postage-prepaid,a true copy of NOTICE OF CONSTRUCTIVE APPROVAL OF PETITIONER'S APPEAL AND GRANT OF THE RELIEF REQUESTED THEREIN to each addressee listed on the attached Service List at the addresses therein indicated. SIGNED UNDER THE PENALTIES OF PERJURY ON THIS TWENTY-FIRST DAY OF SEPTEMBER,2009, Le . Feiuiessy Petitioner SERVICE LIST See attached list of addressees and addresses. C i r Page 1 of 2 SERVICE LIST i F Albert P.Manzi III,Esq. Daniel S.Braese,Esq. Planning BoardTown of Middleton 24 Main Street 21 Periwinkle Way Memorial Hall North Andover, MA 01845 North Andover, MA 01845 48 South Main Street Middleton, MA 01949 Ellen P.McIntyre Michael P.Liporto Zoning Board of Appeals 23 Tanglewood Lane 74 Heath Road 235 North Street North Andover.MA 01845 North Andover.MA 01845 North Reading, MA 01864 Planning Board Planning Board Richard J. Byers, Esq. 97 Forest Street Town of North Andover City of Lawrence Cit North Andover.MA 01845 1600 Osgood Street Y Hall North Andover, MA 01845 200 Common Street Lawrence, Massachusetts 01840 Joseph D. LaGrasse Planning Board Zoning Board of Appeals 140 Sugarcane Lane Town of Boxford City of Methuen-Quinn Building 7A Spofford Road 90 Hampshire St., North Andover. MA 01845 Boxford,MA 01921 Methuen;MA 01844 Richard.M.Vaillancourt Planning Board Gerald A. Brown 454 Stevens Street Town of Andover-Town Offices Zoning Enforcement Officer 36 Bartlet Street Town of North Andover North Andover.MA 01845 Andover,MA 01810 1600 Osgood Street North Andover,MA 01845 Thomas D. Ippolito Planning Board City of Haverhill-City Hall Thomas J.Urbelis, Esq. 430 Osgood Street 4 Summer Street(Room#201) Urbelis&Fieldsteet, LLP North Andover.MA 01845 Haverhill, MA 01830-5843 155 Federal Street Boston, MA 02110.1727 MetroPCS Massachusetts,LLC Peter Morin,Esq. McDermott,Quilty,&Miler,P.C. 285 Billerica Road 21 Custom House Chelmsford, MA 01824 Boston, MA 02110 Y f , ESV t G E c_r s T PJ9&C- 2 o F 2 ,UWW(O1UWWt )aul/dnaDept.i )Coeswvutmr i ) Zontna f i EEOUJgEMENT: MGLfd1,&dcn 11 aUWNprt'Hdlaln lydeadlrred Ntlib dnplralsrmrntlwpaeknor, Wdtna aaiwa d Wddmdq•W W�r9P�>P��Y,and�O,tlrsb�lAMMriN evr M,Mad paq TrtdlMlxpvlrOwdtM ptltloner tlwrapparmlN neM�ltappkmhl bslhl,ndrMfhndne tldiM lard dory wd,panel bgfed nr*d.*.lw 6 ft plrWro herddeade arlawyand er plam}a hrNdrwryaltlha dh artwn• subHerProaerN: MAP PARAddress 42 2 Trinitarian Congregational Church 72 Elm Street North Andover,MA 01645 Abctttera Properties MW 2110M NM Address 41 9 Breen Memorial Funeral Home,LLC 35.37 Merrimack Street North Andover,MA 01845 41 10 Arthur McCue 5759 Water Street North Andover,MA 01845 41 11 Harold McPhee 63 Water Street North Andover,MA 01845 41 13 Harold McPhee 63 Water Street North Andover,MA 01845 41 14 John Dorsey 64 Regent Avenue Haverhill,MA 01832 41 16 Robert Gesing 17 Merrimack Street North Andover,MA 01845 41 2-0059.0 Gary Rodgers 59 Church Street North Andover,MA 01845 41 2.0061.0 Coslmo Pared 61 Church Street North Andover,MA 01645 41 2-005I.A Cosimo Parco 61A Church Street North Andover,MA 01845 41 12 J.R.Vemile 89 Water Street North Andover,MA 01845 41 43 David Cote 531 Boxford Road Haverhill,MA 01832 41 44 Sheryl Pendwder 64 Church Street North Andover,MA 01845 41 46-0049.0 Mark Sokol 49 Church Street North Andover,MA 01845 41 46-0051.0 Tavarekere Prakasha 51 Church Street North Andover,MA 01845 41 22 Gertrude Paradis 22 Garden Street North Andover,MA 01845 41 23 John Shagoury PO Box 4 Wayland,MA 01778 41 34 Harold McPhee 63 Water Street North Andover,MA 01845 41 36-0021.0 Ryan Noonan 21 Merrimack Street North Andover,MA 01845 41 36-0023.0 John Cronin 23 Merrimack Street North Andover,MA 01845 41 37 Susan Fontaine 53 Water Street North Andover.MA 01845 41 40 Virginia Kollen 58 Church Street North Andover,MA 01845 41 41 James Smedife 65 Green Street North Andover.MA 01845 42 1-0001.0 Phillip Sampson 88 Elm Streat#1 North Andover,MA 01845 42 1-00020 Leo Gardner 88 Elm Street$2 North Andover,MA 01845 42 1-0003.0 Kathleen Cronin 88 Elm Street#3 North Andover,MA 01845 42 3 Brian Raposso 42.44 Church Street North Andover,MA 01845. 42 4-0032A Eric Roberts 32 Church Street#A North Andover,MA 01845 42 40032.8 Adam Muzerall 32 Church Street*B North Andover,MA 01845 42 4-0034.0 John Whittington 34 Church Street North Andover,MA 01845 42 5 Richard Richmond 30 Church Street North Andover,MA 01845 42 6 Trinitarian Congregational Church 72 Elm Street North Andover.MA 01.50 42 7 Marilyn McPhee 242 Main Street North Andover,MA 01845 42 8 Brian Coekall 9 Garden Street North Andover.MA 01845 42 9 John Morgan 23-25 Garden Street North Andover,MA 01845 42 35 Brian Coc kell 9 Garden Street North Andover,MA 01845 42 12 Christopher Lathrop 27 Church Street North Andover,MA 01845 42 13 Aaron Pertus 62 Elm Street North Andover,MA 01845 42 14 John Crane 56 Elm Street North Andover,MA 01845 42 15-0000.13 Brian Goodhue 64B Elm Street North Andover.MA 01845' 42 15-0000.1' Michael Keohan 54F Elm Street North Andover,MA 01845 42 16 Horace Stevens 46 Elm Street North Andover,MA 01845 42 17 Horace Stevens 46 Elm Street North Andover,MA 01845 42 20 Donald Elliot 268 Main Street North Andover,MA 01845 42 21 Bryan Kirby 64 Brookfield Road Andover,MA 01810 42 22 Chd3topherAllen 45 Elm Street North Andover,MA 01845 42 34 Mark Depolito 9 Pleasant Street North Andover.MA 01645 55 1 Vincent Landers 40 Court Street North Andover,MA 01845 65 6 Timothy Seibert 65 Elm Street North Andover,MA 01845 55 7 Eight Fifty Five Realty 71 Chickering Road North Andover,MA 01845 55 8 James Fennessy 77 Elm Street North Andover.MA 01845 55 9 Gerhard Sehnellinger 83 Elm Street North Andover,MA 01845 55 18 Brandon McCue 59 Elm Street North Andover,MA 01845 55 34 Progressive Real Estate Company 91 Hampstead Street Methuen,MA 01844 55 35 Joseph Mayr 20 Pleasant Street North Andover,MA 01845 65 21 Gary Wentworth 15 Pleasant Street North Andover,MA 01845 54 2 HDG Mansur INV SVC;atin:Clapper 10 W.Market Street,Suite 1200 Indianapolis,IN 46204 Dab 5=009 Pepe 1 or 1 This certifies that the names appearing on the records qf_ the Assessors Office as of Certified by: _Date 5 zd a 9 - 1 ELM STREET 210/042.0-0028-0000.0 107 Forest St. PSN FC1RM 4-SYSMM,PLP PNG RECORD Middleton,MA 01949 0� (508) 774-2772 o IBJ J Commonw ealth of Massachusetts _ Massachusetts Syst m &Mning �d stem wrier System Location (52 17 Date of Pumping: S —�--�� Quantity Pumped:� allons Cesspool: No Yes ❑ Septic Tank: No ❑ Yes Svstem Pumped b\ ' License #: .. Contents transferred to: Date 2 ��� Inspector • THE PROFESSIONAL EXPERTS IN THE SEPTIC AND DRAIN INDUSTRY • Oi � ��'. � ��� �. �� ^�` ' �� � �,,�",e��� �,�lr �k � k'OR.��•4; S1S'l�l:�,�ii I'li1II'�C RECORD' �.S ClCY' �N1.1Q�d� .§'• � ���i i+r •' �}r�j�f tifi 4� ��� ;R +I �•� b O I 'k.I•4 /y1is + �'+ ��I't'`' (..' .F•,[.. ,fit .2y*1� ' �9,•• , , �' .. It i '�"�+� '�� ''��ii`` j r�yl •••• • '. •1.- ,�7,l�f . ,., "a .. ' -.. •'lair i h of Massachtist tis (� F} 1 M 1 + f• + •• t �? t' 't:. f r14�(l��vF L r '.+1 f.t .yi..+.i -i i• j F .,,Mas•sachuse is TOIN OA �-r- j 1 •• �, 51998 1 Ar e'c r ' n 1 �S •N Stein Ocallony er ,k 14 Date of pumpin . Quantity Pum'ped:, =.`• . . . -�-�.�.._gallons .. . '.;�`'• Cesspool: N. �o des ' • . � ' • i ` (] .` � • - • ' Septic Tank: ho ❑ 4'..,;..;.' es Svstem Pumped b\: '. 1.Contents transferred io• License M y �! t f.F,l' • I ,• t f .�..te ,it f • o 3 • r Inspector t �{ • i is � ;�: • :i ;.'IL ,,r EziS,--i4AL EXPERTS a IN ;me ';JPT:C ANC rb Ea FORINT 4- SYSTEM PUMPING RECORD 5G SSP �; �`G 5 Commonwealth of Massachusetts StP 6199 Massachusetts System Pumping Record system System Location (z,J Date of Pumping: 2 v Quantity Pumped: gallons Cesspool: No ❑ Yes ❑ Septic Tank: No ❑ Yes ❑ System Pumped by: .. ....... ........................ License #: ........................................... Contentstransferred to: Date Inspector f07 Foresrsi. 4s0�P`I, FORM 4- SYSTEAI PLJ1%1PRgG RECORD µiatWeWa,MA 01949 ?!\c Co onwealth of Massachusetts Massachusetts System Pumping Record ystem timerSystem Location Date of Pumping: Quantity Pumpe allons Cesspool: No Yes ❑ Septic Tank: No ❑ Y System Pumped by: Y �-- License #; Contents transferred to: ` Date 6i x Inspector f Addresses 5 Title of File Page of Date File Open: Date file closed: Doc Document/Action Title Date of Refer to other Purpose of Document/Action and notes action Document/ document/ Num. Action Department i i Board of Appeals - Board of Health - Planning Board - Conservation Commission - Building Departrr►ent � G.