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Chapter 164 ZONING [HISTORY: Adopted 3-8-1971 Annual Town Meeting, Art. 25. Subsequent amendments noted where applicable.] GENERAL REFERENCES Scenic roads — See Ch. 139. Wetlands — See Ch. 160. Housing Authority — See Ch. 188. Subdivision regulations — See Ch. 192. ARTICLE I General Provisions § 164-1. Authority. This Zoning Bylaw is adopted in accordance with the provision of Chapter 40A of the General Laws. § 164-2. Purpose. The purpose of this chapter is to promote the health, safety and convenience of the inhabitants of Orleans and to protect the welfare of the citizens. § 164-3. Applicability. A. Noninterference. This chapter shall not interfere with or annul any other town bylaw, rule, regulation or permit, provided that, unless speciﬁcally excepted or where a conﬂict exists within the chapter itself, where this chapter is more stringent, it shall control. B. Conformance. Construction or operations under a building or Special Permit shall conform to any subsequent amendment of this chapter unless the use or construction is commenced within a period of six (6) months after the issuance of the permit and, in cases involving construction, unless such construction is continued through to completion as continuously and expeditiously as is reasonable. _____________________________________________________________________________________________________________ 1.6-8-1972 STM; 3-13-1973; 56-97TA M; 5-3-1976 A M; 5-2-1977 A M; 5-1-1978 A M; 12-11-1978 STM; 5-7-1979 ATM;T-180 T M; 5-4-1981 A M;T5-6-1982 A M; 5-2-1983 A M; 12-5-1983 STM; 5-7-1984 A M; 10-3-1984 STM; 5-7-1985 ATM. C. Nonconforming Structures and Uses. Legally preexisting, nonconforming structures or uses may be continued, in accordance with G.L. c. 40A, § 6, subject to the following: [Amended 5-8-2006 ATM, Art. 24] (1) Alteration, Reconstruction (which shall include raze and replacement), Extension or Structural Change (collectively “alteration”) to Nonconforming Single or Two Family Residential Structures. Nonconforming single or two family residential structures may be altered, reconstructed, extended or structurally changed provided that such alteration does not increase the nonconforming nature of such structure. (a) In the following circumstances alteration to a nonconforming single or two family residential structure shall not be considered an increase in the nonconforming nature of the structure and shall be allowed as of right: [Amended 5-7-2007 ATM, Art. 24]  Alteration to a structure which complies with all current setbacks, yard, lot coverage and building height requirements but is located on a lot with insufﬁcient area, where the alteration will also comply with all of said current requirements.  Alteration to a structure which complies with all current setbacks, yard, lot coverage and building height requirements but is located on a lot with insufﬁcient frontage, where the alteration will also comply with all of said current requirements.  Alteration to a structure which encroaches upon one or more required yard or setback areas, where the alteration will comply with all current setback, yard, lot coverage and building height requirements; the provisions of this subsection shall apply regardless of whether the lot complies with current area and frontage requirements. (b) Except as otherwise set forth in (c) below, alteration to a nonconforming single or two family residential structure that increases the nonconforming nature of the structure may be allowed on Special Permit from the Board of Appeals provided the Board of Appeals ﬁnds that such alteration will not be substantially more detrimental to the neighborhood than the existing nonconforming structure. (c) Alteration to a nonconforming single or two family residential structure in such a manner as to: 1) create a new dimensional nonconformity, or 2) intensify an existing nonconformity by extending further into a required setback area, or 3) increase the height of the structure greater than the allowed height, shall require the issuance of a variance by the Board of Appeals and the Special Permit ﬁnding required under subsection (b). Provided, however, the extension of an exterior wall or surface of an existing structure at or along the same nonconforming distance within a required setback area shall not require the issuance of a variance. (2) Alteration, Reconstruction, Extension or Structural Change (collectively “alteration”) to Nonconforming Structures Other than Single and Two Family Structures. Other nonconforming structures or uses may be altered, reconstructed, extended or structurally changed on Special Permit from the Board of Appeals if the Board of Appeals ﬁnds that such alteration will not be – 2 – substantially more detrimental to the neighborhood than the existing nonconforming structure or use. The alteration of a nonconforming structure in such manner as to create a new dimensional nonconformity or to intensify an existing dimensional nonconformity, shall require the Special Permit ﬁnding and the issuance of a variance by the Board of Appeals. (3) Restoration. A nonconforming structure or use may be reconstructed or reinstituted if destroyed by ﬁre or other casualty if reconstructed or reinstituted within a period of two (2) years from the date of the catastrophe, or else such reconstruction must comply with this chapter. (4) Abandonment. A nonconforming use or structure which has been abandoned or otherwise discontinued for a period of two (2) years shall not be reestablished, and any future use of the premises shall conform to this chapter. (5) Reversion. Once changed to be conforming, no structure or use shall be permitted to revert to a nonconforming structure or use. D. Isolated lots and subdivisions. Under MGL C. 40A, § 6, lots not held in common ownership with any adjoining land are generally not subject to subsequent amendments in dimensional requirements, and land shown on subdivisions or other plans endorsed by the Planning Board is exempted from subsequent zoning amendments in certain respects for a limited period of time. (See MGL C. 40A, § 6.) Those exemptions are extended to other lots for single-family dwellings as speciﬁed in § 164-22A(2). § 164-4. Deﬁnitions. To make clear certain terms used in this chapter, the following meanings shall apply unless a contrary intention clearly appears: ACCESSORY DWELLING — A subsidiary dwelling unit created within or as an extension to an existing single-family dwelling. ADULT BOOKSTORE — An establishment having as a substantial or signiﬁcant portion of its stock in trade, books, magazines, and other matter which are distinguished or characterized by their emphasis depicting, describing, or relating to sexual conduct or sexual excitement as deﬁned in Massachusetts General Laws, Chapter 272 Section 31. [Added 5-9-1989 ATM, Art. 23] ADULT CABARET — Any establishment which provides live entertainment for its patrons, which includes the display of nudity, as that term is deﬁned in M.G.L. Chapter 272, § 31. [Added 5-10-1999 ATM, Art. 18] ADULT MOTION PICTURE THEATRE — An enclosed building used for presenting material distinguished by an emphasis on matter depicting, describing, or relating to sexual conduct or sexual excitement as deﬁned in Massachusetts General Laws, Chapter 272, Section 31. [Added 5-9-1989 ATM, Art. 23] AMATEUR RADIO TOWER — Any structure (lattice tower, monopole, or other) intended to support equipment, including antennas, microwave dishes, wiring, and other devices attached thereto, utilized in connection with the reception – 3 – or transmission of electromagnetic radiation for the purpose of radio communications by a federally licensed amateur radio operator. [Added 5-8-2000 ATM, Art. 17] AMUSEMENT PARK — An outdoor commercial enterprise other than an itinerant circus or carnival which includes one or more of the following types of amusements: roller coasters, amusement rides, water slides, shooting galleries or other paraphernalia for amusement or entertainment purposes. [Added 5-12-1992 ATM, Art. 36] APARTMENT — A structure, regardless of form of tenure, containing three (3) or more dwelling units or a mixed-use structure containing three (3) or more dwelling units having a majority of ﬂoor area devoted to non-residential use, except that up to four (4) dwelling units may be contained in a commercial structure in the Village Center District without being considered an apartment. (See § 164-32 and § 164-19.1). [Amended 5-5-1987 ATMT , Art. 47; 5-12-1998 A M, Art. 30; 5-7-2001 ATMT , Art. 33; 5-13-2008 A M, Art. 24] BUILDABLE UPLAND — That land which is contiguous and not in the Conservancy District and which is contiguous and not swamp, pond, bog, dry bog, marsh or an area of exposed groundwater and which is not subject to ﬂooding from storms and mean high tides or is not located in the FEMA ﬂood zone 100-year base ﬂood elevation. (See § 164-23 and § 164-20.) [Amended 5-13-2008 ATM, Art. 24] BUILDING — A structure enclosed within exterior walls or ﬁrewalls, whether portable or ﬁxed, built, erected, and framed, and having a roof for the shelter of persons, animals, or property. For the purposes of yard requirements, decks and porches shall be considered part of a building but shall not count towards the building coverage of the lot. [Added 5-10-2004 ATM, Art. 25] BUILDING COVERAGE — The buildable upland portion of a lot which is covered by buildings, including porches, but excluding parking areas, pools, decks, or any permanent structures which do not have roofs. [Added 5-13-1996 ATM, Art. 21] BUILDING HEIGHT — The vertical distance from the average undisturbed existing natural grade at the foundation on the street side of the building to the top of the ridge. Except as otherwise provided in § 164-40.2B, the only portions of a structure permitted above the ridge line shall be chimneys, air conditioning equipment, skylights, ventilators and antennae and other like features appurtenant to buildings which are usually carried above roofs and are not used for human occupancy and which in no event shall exceed 5 feet above the ridge line. See Section 164-19.1 E for third ﬂoor housing allowance in the Village Center District. [Amended 5-9-1988 ATM, A Trt. 66; 11-18-1991 STM, Art. 3; 5-7-2007 A M, Art. 23] CHANGE OF USE — Either the establishment of a commercial use in an existing commercial or industrial space where the resulting commercial use constitutes a different use category than the existing commercial use pursuant to the use regulation schedule at 164-13, or a use which by reason of its normal operation, would cause readily observable and substantial differences from the existing use in one or more of the following: patronage, service, noise, employment, appearance, parking, trafﬁc or other similar characteristics. [Added 5-8-2006 ATM, 28] Art. – 4 – COMMERCIAL STRUCTURES WITH DWELLING UNITS — A structure with mixed uses, containing a maximum of 2 dwelling units, but having a majority of the gross ﬂoor area devoted to non-residential use; includes buildings containing ofﬁce, retail or other non-residential use together with the dwelling units. [Added 5-12-1998 ATM, Art. 26] COMMUNICATION APPURTENANCE — Any antenna, device, wiring or equipment utilized in connection with the reception or transmission of electromagnetic radiation and which is attached to a pre-existing structure. This deﬁnition does not include a communication tower or monopole. [Added 5-19-1997 ATM, Art. 29] COMMUNICATION BUILDING — Any building utilized primarily for the installation and operation of equipment for generating and detecting electromagnetic radiation and which is accessory to a communication structure. [Added 5-19-1997 ATM, Art. 29] COMMUNICATION STRUCTURE — Any structure intended to support equipment used for the transmission and/or reception of electromagnetic radiation, including communication towers, monopoles, antennas, wiring or other devices attached thereto, including guy wires. [Added 5-19-1997 ATM, Art. 29] COMMUNICATION TOWER — Any multi-sided structure intended to support equipment used for the transmission and reception of electromagnetic radiation including antennas, microwave dishes, wiring or other devices attached thereto. [Added 5-19-1997 ATM, Art. 29] COMMUNICATION MONOPOLE — Any cylindrical pole structure intended to support equipment used for the transmission and reception of electromagnetic radiation including antennas, wiring or other devices attached thereto. [Added 5-19-1997 ATM, Art. 29] CONGREGATE DWELLING — A residence for six (6) or more unrelated persons, single or couples, with some shared facilities and shared services primarily as a convenience but with no licensed care. [Amended 5-7-2001 ATM, Art. 32] CONGREGATE HOUSING UNIT — Accommodation for not more than six (6) persons in a congregate dwelling, sharing a single kitchen. CONSERVANCY DISTRICT — See Section 164-15. [Added 5-10-1999 ATM, Art. 19] COTTAGE COLONIES — Any group of two (2) or more rental cottages on a parcel of land. CUSTOMARY OR SELF-EMPLOYED HOME OCCUPATIONS — Includes carpenters, electricians, painters, plumbers, paperhangers, shellﬁsh opening and the storage of ﬁshing equipment as customarily carried on in the town, masons, radio and television repairs, dressmaking, hand laundering, home handicrafts, home cooking, lawn mower and bicycle repairs, the practice of any recognized profession and any others of similar nature which may be approved on Special Permit by the Board of Appeals, provided that it is not injurious, noxious or – 5 – offensive to the neighborhood, and provided that there is no outside display of goods. DWELLING — A building or portion thereof used exclusively for residential purposes, including one or multiple dwelling units, but not including a facility offering transient lodging accommodations to the general public. [Added 5-8-2000 ATM, Art. 19] DWELLING UNIT — One (1) or more rooms intended as a single housekeeping unit for the use of one (1) or more individuals living together, and having cooking, sanitary and sleeping facilities. A “dwelling unit” does not include garages, sheds or an accessory or additional structure, whether attached or unattached. FENCE — A combination of materials assembled at a ﬁxed location for the purposes of protection, conﬁnement, enclosure, or privacy. Any fence, that exceeds six 6 feet in height, as measured from the undisturbed existing natural grade, shall be required to meet yard requirements of an accessory building as set forth in Section 164-22.F. Trees, hedges, plants and all other vegetation shall not be considered a fence. [Added 5-10-2004 ATM, Art. 25] FLOOR AREA, GROSS — The sum of the horizontal areas of the several ﬂoors of all buildings on the same lot, measured from the exterior face of exterior walls, but not including interior parking or loading areas, cellars with walls more than ﬁfty percent (50%) below grade and areas having less than six (6) feet of ﬂoor-to-ceiling height. [Added 10-23-85 STM, Art. 40] GUEST HOUSE — A separate structure accessory to a single-family dwelling or two-family dwelling and containing sleeping and toilet facilities. HOTEL, MOTEL or MOTOR INN — A group of rental units for human habitation under one (1) roof which shall not provide space for cooking within each unit and may include an apartment and ofﬁce for the resident manager as well as customary public facilities for the patrons. “Hotels, motels or motor inns” shall be considered a business use of the land occupied. [Amended 5-6-86 ATM, Art. 74] INTERCONNECTION — A physical connection, resembling a driveway, between two parking lots or parking areas, either private or public, that allows for site trafﬁc to circulate conveniently and safely between the areas without traveling on or crossing public roadways. [Added 5-8-2006 ATM, Art. 28] LODGING HOUSE — A structure originally designed as a dwelling unit for single-family use which may be converted to provide rentable sleeping rooms [not more than ﬁve (5)] for individuals [not more than ten (10)] with a family resident in said dwelling, and may provide a common dining area within the facility. It may include a boardinghouse, tourist home, rooming house, and bed- and-breakfast but does not include a hotel, motel or motor inn. LOT — An area or parcel of land in undivided ownership with deﬁnite boundaries, used or available for use as the site of one (1) or more buildings. LOT FRONTAGE — The boundary of a lot coinciding with a street line if there are both rights of access and potential vehicular access across that boundary and the street either has been determined by the Planning Board to – 6 – provide adequate access to the premises under the provisions of the Subdivision Control Law and the Orleans Subdivision Regulations or is shown on an approved deﬁnitive subdivision plan; measured continuously along one (1) street line between side lot lines or, in the case of corner lots, between one (1) side lot line and the midpoint of the corner radius. [Amended 5-6-1986 ATM, Art. 70] LOT SHAPE NUMBER — The number resulting from the division of the square of the p2rimeter by the square feet of area of the lot or said portion thereof. [Perimeter /Lot Sq Ft = <22] A lot may have a shape number greater than 22 provided that the site intended for building, respective of yard requirements, is contained within a portion of said lot and said portion consists of at least 40,000 square feet of buildable upland and has a shape number not exceeding 22. [Added 5-10-2004 ATM, Art. 24] MARINA — A boat basin and/or boatyard which provides facilities for mooring boats, storage and servicing of all types of recreational craft, including supplies and repairs. MARINE INSTALLATION — A marina which includes such additional facilities as restaurants, cocktail lounges, luncheonettes, automatic laundries, waterskiing and skin-diving supplies and instruction, children’s play areas, apparel shops, boat rentals, club houses, yacht sales and brokerage ofﬁces and transient residential accommodations. MOBILE CAMPING UNIT and MOBILE BUSINESS UNIT — Any vehicle or object on wheels which is so designed and constructed or reconstructed or added to by means of such accessories as to permit the vehicle to travel over the highways and as to permit the use thereof for camping, living or business purposes, whether resting on wheels, jacks or other foundations, and shall include the type of vehicle commonly known as a “mobile home”. A trailer, when used for dwelling or business purposes and afﬁxed to land, shall remain and be considered a trailer for all purposes of this chapter. The words “mobile camping unit” and “mobile business unit” shall include travel trailers, self-powered camping units, expandable camping units and similar camping devices. OPEN SPACE RESIDENTIAL DEVELOPMENT — An option to conventional grid subdivisions allowing a development where single-family dwellings are built on lots with less than the ordinary area and frontage, and the remaining land is set aside for open space, according to the procedure and design standards described in § 164-40.1 of this bylaw. [Added 5-8-1990 ATM, Art. 42] RESTAU ARANT, F ST-FOOD — An establishment for the sale of on- premises-prepared food or drink packaged for takeout, whether for consumption on the premises or not, unless such sales are wholly incidental to a conventional restaurant or other use deﬁned in this section, and including establishments providing in-car service or window service or service at two (2) or more take-away stations within the town. SETBACK LINE — A line measured from the line of a way, public and/or private, on which the lot abuts. SIGN — Any device, including recognizable logos, pictographs and objects of similar nature, which is used to identify or advertise a permitted use, service or activity in the zone in which it is located. (See § 164-35.) – 7 – STREET LINE — The boundary line of a road layout that coincides with the boundary line of adjoining lots. [Added 5-10-1999 ATM, Art. 19] TOXIC OR HAZARDOUS MATERIAL — Any substance 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 or waters of this town. “Toxic or hazardous materials” include, without limitation, organic chemicals, petroleum products, heavy metals, radioactive or infectious wastes, acids and alkalies and include products such as pesticides, herbicides, solvents and thinners. Wastes generated by the following activities, without limitation, are presumed to be toxic or hazardous: Airplane, boat and motor service and repair Chemical and bacterioiogical laboratory operation Cabinetmaking Dry cleaning Electronic circuit assembly Metal plating, ﬁnishing and polishing Motor and machinery service and assembly Painting, wood preserving and furniture stripping Pesticide and herbicide application Photographic processing Printing TRAILER — Any vehicle or object which is, has been or may be portable. For the purpose of this deﬁnition, “trailers” shall include, but shall not be limited to, motor freight trailers, dump trailers, utility trailers and the like other than those covered in this section. WHOLESALE BUSINESS/WAREHOUSE — A use engaged in storage, wholesale, and distribution of manufactured products, supplies, and equipment, but excluding bulk storage of materials that are ﬂammable or explosive or that create hazardous or commonly recognized offensive conditions. [Added 5-8-2000 ATM, Art. 19] YARD — An area open to the sky, located between a structure or other property line and any principal structure or element thereof. Projections allowed to encroach on building lines and yards shall only be allowed under 164-22.D. [Amended 5-7-2007 ATM, Art. 25] YARD, FRONT — A yard extending between lot side lines across the front of a lot adjacent to each street the lot adjoins. YARD, REAR — A yard adjacent to the rear lot lines and extending between side lot lines. YARD, SIDE — A yard adjacent to the side lot line and extending from the front yard to the rear yard. ARTICLE II Establishment of Districts – 8 – § 164-5. Districts enumerated. To accomplish the purposes of this chapter, the town is divided into districts which will best preserve their general character as follows: Residential Districts Residence District R Business Districts Rural Business District RB Limited Business District LB General Business District GB Industrial District I [Amended 5-10-1999 ATM, Art. 20] Marine Business District MB Village Center District VC [Added 10-23-1985 STM, Art. 40] Other districts Conservancy District CD Seashore Conservancy District SC (See § 164-14.) Overlay districts Water Resource District WR (See § 164-17.) Shoreline District S (See § 164-18.) Floodplain District F (See § 164-19.) Residence District RAH [Added 5-12-1998 ATM, Art. 32] § 164-6. Location of districts; Zoning Map. A. These districts are located and bounded as shown on a map entitled “Zoning Map of Orleans, Massachusetts,” dated March 11, 1963, as amended and on ﬁle in the ofﬁce of the Town Clerk. This map, with all explanatory matter thereon, is hereby made a part of this chapter. [Map amended 5-8-2000 ATM, Art. 20; 5-7-2001 T ATM, ATrt. 35; 12-3-2001 STM, Art. 17; 5-13-2002 A M, Art. 23; 5-13-2002 A M, Art. 24; 5-12-2003 ATMT, Art.T1; 5-9-2005 A M, Art. 31; 5-13-2008 A M, Art. 22] B. Overlaistricts. (1) [Amended 11-18-1991 STM, Art. 2] Groundwater Protection Districts. The Town of Orleans is hereby divided into four Groundwater Protection Districts which shall be considered to be superimposed over any other districts established by the Town Zoning Bylaws. Land in each Groundwater Protection District shall be subject to the requirements of this § 164.17 as well as all other requirements of Town Bylaws which apply to the underlying zoning districts. A map entitled, “Town of Orleans Proposed Groundwater Protection Districts” dated June 7, 1991 showing the locations of the four Groundwater Protection Districts is on ﬁle for public reference in the ofﬁces of the Tn Clerk, a wn Planner and W ter Department. The four Groundwater Protection Districts are deﬁned as follows: – 9 – District 1 consists of Toan W tershed Properties #15 and #91 as delineated on the above referenced map entitled “Town of Orleans Proposed Groundwater Protection Districts,” dated June 7, 1991. District 1 also includes those properties shown as parcels 81-05, 81-09, 75-119, 75-87, 68-05 and 68-07 on the Town of Orleans Assessor’s maps as of January 24, 2001. District 2 consists of all land located in the Zones of Contribution for Town public water supply wells as determined by the Cape Cod Commission in accordance with Massachusetts Department of Environmental Protection regulations, except those portions of the Zones located within District 1, as delineated on the above-referenced map entitled “Town of Orleans Proposed Groundwater Protection Districts” dated June 7, 1991. District 3 consists of areas formerly established by the Town as part of the Water Resource District as delineated on the above-referenced map entitled ‘Town of Orleans Proposed Groundwater Protection Districts“ dated June 7, 1991. District 4 consists of all the areas of the Town except those within Districts 1, 2 or 3, as delineated on the above-referenced map entitled “Town of Orleans Proposed Groundwater Protection Districts” dated June 7, 1991. (2) Shoreline District. A Shoreline District is hereby created as an overlay district covering areas so designated on the Zoning Map. See § 164-18 for requirements. (3) FloodplaiDnistrict. (a) The Floodplain District is herein established, effective November 28, 1985, as an overlay district. The underlying permitted uses are allowed, provided that they meet the additional requirements of § 164-19, as well as those of the Massachusetts State Building Code dealing with construction in ﬂoodplains and coastal high hazards. (b) The Floodplain District includes all special ﬂood hazard areas designated as Zones A, A1-A30, V and V1-V30 on the Orleans Flood Insurance Rate Map (FIRM) dated December 3, 1991, on ﬁle with the Town Clerk, Planning Department, Conservation Commission and Building Department. The boundaries of the District are deﬁned by the 100-year base ﬂood elevation shown on the FIRM and further deﬁned by the Orleans Flood Insurance Study booklet dated December 3, 1991. [Amended 5-12-1992 ATM, Art. 38] (4) Residential Affordable Housing District (RAH). [Added 5-12-1998, ATM, Art. 32] (a) The Residential Affordable Housing District is hereby established as an overlay district. The District shall be located as shown on a map on ﬁle with the Town clerk dated April 1, 1998.“ § 164-7. Boundaries of districts. Except when labeled to the contrary, boundary or dimension lines shown approximately following or terminating at street, railroad or utility easement – 10 – centers or layout lines, boundary or lot lines or the channel of a stream shall be construed to be actually at those lines; when shown approximately parallel, perpendicular or radial to such lines, they shall be construed to be actually parallel, perpendicular or radial thereto; and when appearing to follow tidal shoreline, they shall coincide with the mean high-water line. When not locatable in any other way, boundaries shall be determined by scale from the map. § 164-8. Lots in two districts. When a district boundary line divides any lot in one (1) ownership of record at the time such line is adopted, a use that is permitted on one (1) portion of the lot may be extended into the other portion, provided that the ﬁrst portion includes the required frontage, and provided that a Special Permit is granted by the Board of Appeals. § 164-9. Lots located partly in another municipality. Lots located in part in another municipality shall be regulated as to the portion located in Orleans as if entirety within Orleans. ARTICLE III Use Regulations § 164-10. General requirements; uses enumerated. A. No building, structure or land shall be used for any purpose or in any manner other than as permitted as set forth in the Schedule of Use Regulations, § 164-13, and in accordance with the following notation: (1) Use permitted: P. (2) Use prohibited: O. (3) Use allowed: A, under Special Permit by the Board of Appeals as provided in § 164-44. B. Permiteted uses and uses allowed under Special P rmit shall be in conformity with all dimensional requirements, off-street parking requirements and any other pertinent requirements of this chapter. C. Where an activity might be classiﬁed under more than one (1) of the following uses, the more-speciﬁc classiﬁcation shall determine permissibility; if equally speciﬁc, the more-restrictive shall govern. § 164-11. Prohibited uses. A. Salvage yards, junkyards and all open-air storage of junk, waste products and salvage materials are expressly prohibited in the town unless owned and/or operated by the town, to include only the town disposal area. The open-air storage of more than one (1) unregistered motor vehicle is prohibited, except on premises used as a new or used car sales and service business or auto body and – 11 – motor vehicle repair shop, provided that said storage shall not be deemed by the Building Inspector to be in conﬂict with the other provisions of this section. B. The parking of more than one (1) school or other type of bus on a lot is prohibited in the town except in the General Business and Industrial Districts or upon school premises or during permitted functions. Onshore commercial facilities to service or support or accommodate offshore exploration or drilling for fossil fuels, including oil and gas storage tanks, pipelines, warehouses or dockside heliports, airports, airstrips and all air-support facilities whose purpose or intention or principal business is to accommodate or service or support the onshore use of the Town of Orleans for offshore exploration, drilling and transportation of fossil fuels, including but not limited to oil and gas, are prohibited. [Amended 5-10-1999 ATM, 20] Art. C. Adult bookstores or adult motion picture theatres or adult cabaret, as deﬁned in Section 164-4 of this Chapter are prohibited except that such establishments are permitted under Special Permit from the Board of Appeals in the Commercial District. Within the Commercial District, any such establishment shall be at least three hundred feet from a residential zoning district. [Added 5-9-1989 ATTM,TArt. 23; amended 5-10-1999 A M, Art. 18; 5-10-1999 A M, Art. 20] D. Filling Stations and/or fuel pumps, as an accessory use and/or incidental to any other use, when used for retail purposes, are prohibited in all zoning districts. [Added 5-9-2005 ATM, Art. 30] § 164-12. Exceptions. [Amended 11-18-1991 STM, Art. 3] This Bylaw shall not prohibit, regulate or restrict the use of land or structures for religious purposes or for educational purposes on land owned or leased by the Commonwealth or any of its agencies, subdivisions or bodies politic or by a religious sect or denomination, or by a nonproﬁt educational corporation except to the extent allowed by Massachusetts General Laws Chapter 40A, Section 3, which provides that such land or structures may be subject to reasonable regulations concerning the bulk and height of structures, determining yard sizes, lot area, setbacks, open space, parking and building coverage. In addition to, and in furtherance of, the purposes of this Bylaw as stated in § 164-2, it is the purpose of this Bylaw: to recognize the special considerations accorded institutional activities, including without limitation educational, religious, and municipal uses of land; to provide a framework for allowing institutional activities to locate in the various districts of the Town, while protecting certain environmentally sensitive areas from being unduly burdened by institutional activities and maintaining in districts generally buildings of similar scale in order that the character of the Town and its neighborhoods be maintained and that lower-density residential uses in particular not be adversely affected by structures for institutional uses; and further, while cognizant of institutional considerations with respect to architecture and of institutional needs for larger structures in some instances than would be necessary for other uses, to be mindful of the need for public security from ﬁre, ﬂoods and other hazards; – 12 – to accommodate growth of institutional activities while recognizing the special requirements of institutional activities, such as parking, and that as the character of institutional activities may change over time, so will the special requirements of institutional activities; to facilitate the adequate provision of parking and open space and other public amenities for all inhabitants of Orleans; to clarify the provisions of this Bylaw with respect to institutional activities and the application of certain dimensional, parking and other requirements to institutional uses as such requirements existed on the date of the adoption of this provision and as they may be modiﬁed by the adoption of this provision and hereafter; and to ensure the uniform regulation of the classes of buildings, structures and land in Orleans. Accordingly, this Bylaw so regulates such buildings, structures and land as provided herein, including, without limitation, pursuant to the provisions of § 164-40.2. § 164-13. Schedule of Use Regulations. [Amended 10-23-85 STM, Art. 40; 5-13-2002 ATM, Art. 24] The following shall be the Schedule of Use Regulations. 2 § 164-14. Seashore Conservancy District SC. A. The Seashore Conservancy District is intended to further preservation of the Cape Cod National Seashore in accordance with purposes of the Act of Congress of August 7, 1961 (75 Stat. 284,291); to prohibit commercial and industrial uses therein; to preserve and increase the amenities of the town; and to conserve natural conditions, wildlife and open spaces for the education, recreation and general welfare of the public. B. Permitted uses. No premises or buildings in this district may be used except for the purposes herein stated: (1) Conservation of land, water, wildlife, vegetation and other natural features and values. (2) Facilities deemed by the Secretary of the Interior to be necessary on federally owned property for administration and public use and enjoyment of the Cape Cod National Seashore, provided that, to the extent possible within the purposes of the Act of Congress of August 7, 1961 (75 Stat. 284,292), plans for such facilities are coordinated with the objectives and plans of the Orleans Planning Board. (3) Recreation related and indigenous to conservation and the natural resources of the seashore such as hunting, ﬁshing, swimming and boating. _____________________________________________________________________________________________________________ 2. Editor’s Note: The Schedule of Use Regulations is included at the end of this chapter. – 13 – (5) Moving, alteration, enlargement, maintenance or repairs of existing* one-family residential dwellings or the erection of customary structures which will be accessory to the existing* principal residential use, provided that such improvements to existing* dwellings and erection of accessory structures will afford not less than a ﬁfty-foot setback from all boundary lines and, further, do not alter essential character of the dwelling as a residence. In appropriate cases, the Board of Appeals may approve lesser setback requirements for improvements to existing* dwellings or for the erection of accessory structures, provided that they do not alter the residential character of the premises. *NOTE: “Existing” means in accordance with the requirement for construction of improved property contained in the Act of August 7, 1961 (75 Stat. 285,290) (September 1, 1959). (6) Publuitilities. (7) Municipal, religious and educational uses. (8) Detached one-family dwellings and accessory structures, provided that no lot may be used for their construction which has a frontage of less than one hundred ﬁfty (150) feet on a way approved in accordance with the Subdivision Control Law and the rules and regulations of the Orleans Planning Board and an area of less than three (3) acres of upland, and no dwelling or building may be located in such manner as to provide less than a ﬁfty-foot setback from all ways measured at a right angle with the street line and a ﬁfty-foot distance from abutters’ property lines, and further provided that no dwelling shall be erected below twenty (20) feet above mean high water. (9) Agricultural, horticultural, ﬂoricultural and aquacultural uses. C. Prohibited uses. Except as provided above, there shall be in the Seashore Conservancy District: (1) No burning of cover unless permitted and supervised by the Fire Chief in accordance with MGL C. 48, §§ 41 and 42. (2) No ﬁlling of land, no dumping and no removal of soil, loam, sand or gravel, except for the maintenance and protection of existing* dwellings. *NOTE: “Existing” means in accordance with the requirement for construction of improved property contained in the Act of August 7, 1961 (75 Stat. 285,290) (September 1, 1959). (3) No cutting timber except: (a) By an owner for the purpose of reasonably controlling bush or trees. (b) Maintenance cutting in pastures. (c) Cutting for clearance or maintenance on a right-of-way. (4) No buildings or structures. – 14 – (5) No commercial or industrial ventures or activities or signs. (6) No drainage, damming or relocation of any watercourse except by a publicly authorized agency for the purpose of pest control. (7) No continuous storage of materials or equipment. (8) No other uses unless speciﬁcally permitted as enumerated above. D. Provisions relating to variances and Special Permits. Applicants for variances and Special Permits within the Seashore Conservancy District shall be promptly notiﬁed by the Board of Appeals that the Secretary of the Interior is authorized to withdraw the suspension of his authority to acquire, by condemnation, property which is made the subject of a variance or Special Permit that, in his opinion, fails to conform or is in any manner opposed to or inconsistent with the purposes of the Cape Cod National Seashore. The Secretary of the Interior shall be given notice by the Board of Appeals of all applications or petitions made for variances and Special Permits to the bylaws for the Seashore Conservancy District, and he shall be provided notice by the Building Inspector of all applications for building permits involving the Seashore Conservancy District. Said notices shall be forwarded within seven (7) days of receipt of each application and petition. Subsequently, to meet the requirements of the Act of Congress of August 7, 1961, the Secretary shall be given notice by the appropriate board or ofﬁcial of any variance, Special Permit or building permit granted or denied for the area within the Seashore Conservancy District. § 164-15. Conservancy Districts CD. A. Conservancy Districts are intended to preserve and maintain the groundwater table on which the inhabitants depend for water supply; to protect the purity of coastal and inland waters for the propagation of ﬁsh and shellﬁsh and for recreational purposes; to protect the public health and safety; to protect persons and property from the hazards of ﬂood and tidal waters which may result from unsuitable development in swamps, ponds, bogs or marshes, along watercourses or in areas subject to ﬂoods and extreme high tides; to preserve the amenities of the town; and to conserve natural conditions, wildlife and open space for the education and general welfare of the public. B. Permitted uses. Except as provided in § 164-3C, buildings, structures and premises in Conservancy Districts may be used only for the following purposes: (1) Fishing and shellﬁshing, including the raising and cultivation of ﬁsh and shellﬁsh. (2) The growing and/or harvesting of such crops as cranberries, marsh hay, seaweed, berries and shrub fruits and seeds. (3) Revetments and other types of erosion control structures. [Amended 5-12-1992 ATM, Art. 41] (4) Conservation of water, plants and wildlife. (5) Publicly regulated utilities. [Amended 5-6-1986 ATM, Art. 76] – 15 – (6) Recreation, including swimming, boating, nature study, ﬁshing and hunting, unless otherwise prohibited by other ordinance, law or bylaw. (7) The following uses by Special Permit issued by the Board of Appeals, provided that any such building or structure permitted by the Board of Appeals shall not exceed twenty (20) feet in height and shall conform to the setback and side line requirements of the residential area nearest to the site on which it is to be erected: (a) Nonresidential buildings or structures to be used only in conjunction with ﬁshing, shellﬁshing, the growing, harvesting and storage of crops raised on the premises and boathouses. (b) Dams, changes in watercourses or other drainage works, only as part of an overall drainage plan constructed or authorized by a public agency. (c) Educational and religious uses. (d) Fabricated walks or trails, docks, piers and landings for private use or municipal uses. (e) [Added 5-5-1987 ATM, Art. 50] Prior to the issuance of a Special Permit for docks, piers and/or landings for private use, the Board of Appeals, in addition to the criteria provided for in § 164-44C, must ﬁnd that the following criteria have been met:  Construction. Permanent docks, piers or landings shall not be permitted unless a speciﬁc navigational need can be demonstrated.  Size. [a] No dock, pier or landing shall exceed eighty (80) feet in overall length, including stairs, ramps and ﬂoats, measured from the mean high-water (MHW) line. However, the Board of Appeals may, when considering a petition to extend a dock, pier and/or landing which existed prior to the adoption of this section, allow the overall length, including any such extension, to exceed eighty (80) feet. [b] No dock, pier, landing, stairs or ramp shall exceed four (4) feet in width, measured outside the support structure (piling, posts or railing). [c] The total area of any and all ﬂoats associated with a dock, pier or landing shall not exceed three hundred (300) square feet, and there shall be no ﬂoats above mean low water (MLW). [d] The height of the deck (walkway) shall not exceed four (4) feet above mean high water (MHW) unless, in the interest of preserving marsh growth, a greater height is required, in which case, the height above the marsh shall not exceed one and ﬁve-tenths (1.5) times the width of the deck. – 16 –  Depth of water. At mean low water (MLW), there shall be, without beneﬁt of dredging, sufﬁcient navigable water for the proposed vessel at the end of the dock, pier or landing and/or ﬂoat system.  Access. At all normal levels of the tide along the shore, pedestrian passage shall be provided. C. Prohibited uses. Except as provided above, there shall be in the Conservancy Districts: (1) No landﬁll or dumping and no removal of soil, loam, sand or gravel. (2) No drainage other than ﬂood control or mosquito control works by an authorized agency. D. Boundaries and deﬁnitions. Conservancy Districts are all land or lands and areas in the Town of Orleans, but excluding land or areas within the boundaries of the National Seashore: (1) That border on tidewater, are subject to tidal action and ﬂooding or ﬂowage of coastal salt water and lay below four (4) feet above the mean high- water mark, being further delineated as by following a contour line of four (4) feet above the plane of mean high water around such land or lands, marshes, salt marshes, beaches, creeks, and including all so-called ﬂoodplains and land under water in such areas. (2) That land inland or freshwater wetland or wetlands, including but not limited to swamps, bogs, unused bogs, dry bogs, cedar swamps, streams, brooks, ponds, lakes and beaches or banks bordering such inland wetland areas, and also including land lying under water in such areas, these areas being delineated by following a contour line of two (2) feet above the plane of the mean high-water level around such areas. All inland wetlands and waters shall be held in a state of conservation against pollution and contamination. Congested natural growth may be removed from areas of freshwater ponds and lakes only with permission of the Conservation Commission upon application by the owner of a pond or lake, presenting in detail the extent or area of such removal, the manner of doing such work and methods that will be used to protect the bottom of the pond or lake against damage. Such permission will not in any way relieve the applicant from complying with other town bylaws or the Wetlands Protection Law of the Commonwealth. (Note: To the extent possible, areas falling within the boundaries deﬁned above have been delineated upon a set of maps prepared and dated March 1973. This set of maps will be available at the ofﬁce of the Town Clerk.) E. Topographic data. If the Building Inspector is uncertain as to the exact location of any contour line bounding a Conservancy District as deﬁned above in the preceding subsection, the submission of sufﬁcient topographic data may be required in order to establish the precise location of said line on any lot affected thereby before issuing a building permit for any building or structure to be located thereon. If any portion of any lot existing at the time of the adoption of this subsection and meeting the requirement of § 164-23 lies within a Conservancy District, the – 17 – conservancy portion shall be considered a part of the buildable lot in computing square footage requirements. § 164-16. Accessory scientiﬁc uses. Uses, whether or not on the same parcel as activities permitted as a matter of right, accessory to activities permitted as a matter of right, which activities are necessary in connection with scientiﬁc research or scientiﬁc development or related production, may be permitted upon the issuance of a Special Permit by the Board of Appeals, provided that the Board ﬁnds that the proposed accessory use does not substantially derogate from the public good. § 164-17. Groundwater Protection Districts. [Amended 11-18-1991 STM, Art. 2] A. Pur _____.___ Groundwater Protection Districts are herein established to promote the health, safety and welfare of Orleans residents by providing a legal framework for the protection of the Town’s groundwater resources. Orleans drinking water supply is obtained entirely from wells tapping groundwater (an Aquifer). Because the top of this groundwater source is relatively near the surface, it is highly susceptible to contamination resulting from wastewater disposal, improper use or disposal of hazardous materials such as pesticides, herbicides, salt, fertilizers, waste oil, paint, and paint thinners, and from accidental leaks or spills of oil, gasoline, or other hazardous materials. In addition to water quality considerations, groundwater recharge is necessary to provide a sufﬁcient supply of water to meet the future needs of Orleans residents and visitors. In order to help provide an adequate future supply of high quality Town drinking water, the following zoning bylaw provisions are enacted to (1) establish four Orleans Groundwater Protection Districts, and (2) deﬁne lot requirements and regulate land uses within such Districts. Use restrictions for each District vary as a function of the area’s sensitivity with regard to protecting public water supply. B. Deﬁ _ni_io_s.___ 1. A___ifer: A porous water-bearing geologic formation generally restricted to materials capable of yielding an appreciable supply of water. 2. G_rou___w__ter__rot__t_on_D_ist_ct: One of four such areas which together comprise the entire Town of Orleans and for which there are speciﬁed lot requirements and use restrictions. 3. Zo_ne_ofC___t__bu_t___: That portion of an aquifer which contributes water to a well and through which contaminants are likely to move and reach the well; it is represented on the surface by the area whose land uses can affect the well’s water quality. Zones of Contribution for Orleans public water supply wells have been determined by the Cape Cod Commission in accordance with Massachusetts Department of Environmental Protection regulations. – 18 – C. Scop_e_f_A_____r_ty/___t_ic_D__linea_i___:The T wn of Orleans is hereby divided into four Groundwater Protection Districts which shall be considered to be superimposed over any other districts established by the Town Zoning Bylaws. Land in each Groundwater Protection District shall be subject to the requirements of this § 164-17 as well as all other requirements of Town Bylaws which apply to the underlying zoning districts. A map entitled “Town of Orleans Proposed Groundwater Protection Districts” dated June 7, 1991 showing the locations of the four Groundwater Protection Districts is on ﬁle for public reference in the ofﬁces of the Tow on Clerk, a wn Planner and W ter Department. The four Groundwater Protection Districts are deﬁned as follows: __st_ict_ consists of Towan W tershed Properties #15 and #91 as delineated on the above referenced map entitled “Town of Orleans Proposed Groundwater Protection Districts,” dated June 7, 1991. District 1 also includes those properties shown as parcels 81-05, 81-09, 75-119, 75-87, 68-05 and 68-07 on the Town of Orleans Assessor’s maps as of January 24, 2001. __st_ict_ consists of all land located in the Zones of Contribution for Town public water supply wells as determined by the Cape Cod Commission in accordance with Massachusetts Department of Environmental Protection regulations, except those portions of the Zones located within District 1, as delineated on the above-referenced map entitled “Town of Orleans Proposed Groundwater Protection Districts” dated June 7, 1991. __st_ict_ consists of areas formerly established by the Town as part of the Water Resource District as delineated on the above-referenced map entitled “Town of Orleans Proposed Groundwater Protection Districts” dated June 7, 1991. __st_ict_ consists of all the areas of the Town except those within Districts 1, 2 and 3, as delineated on the above-referenced map entitled “Town of Orleans Proposed Groundwater Protection Districts” dated June 7, 1991. If a Groundwater Protection District boundary passes through a lot which can not be subdivided, such entire lot shall be deemed to be within the District providing the higher level of groundwater protection. If a Groundwater Protection District boundary passes through a lot which may be subdivided, such lot shall be comprised of portions of two Groundwater Protection Districts as delineated by the District boundary; and if such a lot is subsequently subdivided, any created lots will be treated in the same way as a lot which can not be subdivided. D. Dis_tri_____l__on_s._____ 1. D_s_t_ct____llow_____s___: Only those directly or indirectly related to the protection or production of Town drinking water. All other uses are prohibited in District 1. Provided, however, that wind turbines permitted under § 164-35-1 shall be an allowed use, provided that (a) the wind turbines are approved by the Board of Water Commissioners and the Massachusetts Department of Environmental Protection, and (b) all or a portion of the energy produced by the wind turbines is devoted to the production of Town drinking water. [Amended 5-9-2005 ATM, Art. 29] 2. Dist_i:t_____ – 19 – a. L_ot__eq_uir______s: All lots are required to meet the following conditions, and a site plan showing compliance with these conditions must be approved by the Building Inspector prior to the commencement of any site clearing or construction: 1) At least 30% of a lot area shall be retained in its natural state except for minor removal of existing trees and ground vegetation. 2) No more than 15% of a lot area may be rendered impervious unless a system is provided for the artiﬁcial recharge of precipitation and such system will not result in the harmful degradation of groundwater quality. Regardless of such artiﬁcial recharge, at least 60% of a lot area must be pervious to water. 3) All precipitation runoff generated on a lot shall be recharged within such lot in a manner which assures that no harmful degradation of groundwater quality will occur. 4) Fill material used in construction shall contain no solid waste, toxic or hazardous materials, or hazardous waste. Prior to the use of any ﬁll, adequate documentation shall be provided to the Building Inspector that establishes the acceptable chemical and biological quality of the ﬁll. b. LaU__e__:______ 1) All___ed: All uses permitted in the underlying zoning districts except those speciﬁcally listed as prohibited. 2) Pro_hibi___:___ a) Landﬁlls, open dumps and junkyard. b) Municipal and private wastewater treatment plants. c) Land application or storage of sludge or septage. d) Automobile graveyards, used car lots and auto salvage. e) Sales, storage or transportation of liquid petroleum products of any kind, except those incidental to (i) normal household use, (ii) the heating of a structure, (iii) required waste oil retention facilities or (iv) emergency generators required by statute, rule or regulation, provided that such storage is either in a free standing container within a building or in a free standing container above ground level with protection adequate to contain a spill the size of the container’s total storage capacity. f) Storage of pesticides, herbicides, fertilizers and soil conditioners except for normal household use or for use in agriculture, horticulture, ﬂoriculture or viticulture on parcels of land of more than ﬁve (5) acres, provided storage is within a structure designed to prevent the generation and escape of contaminated runoff or leachate. – 20 – g) The use, generation, storage, treatment or disposal of toxic or hazardous materials or wastes in quantities greater than those associated with normal household use. h) Storage of sodium chloride, calcium chloride, chemically treated abrasive or other chemicals for the purpose of snow or ice removal from roads, or the stockpiling and disposal of snow or ice containing these substances. i) Car washes, commercial laundries, dry cleaning facilities and metal plating establishments. j) Boat or motor vehicle service or repair establishments. k) Sewage disposal systems with a wastewater ﬂow (as determined by Title V of the State Environmental Code) exceeding 110 gallons per day per 10,000 square feet of lot area, or exceeding 15,000 gallons per day regardless of lot size. l) Chemical and biological laboratories. m) Any use which involves on-site disposal of process wastes from operations other than personal hygiene and food for residents, patrons and employees. n) Animal feedlots or the stockpiling of animal manures, except in a structure with an impermeable cover and liner designed to prevent the generation and escape of contaminated runoff or leachate. o) Except for excavations for the construction of building foundations or the installation of utility works, the removal of soil, Ioam, sand, gravel or any mineral substances within four feet of the historical high groundwater level, as determined by the Board of Health, unless the substances removed are within 45 days redeposited on site to achieve a ﬁnal grading greater than four feet above the historical high groundwater level. p) Commercial or recreational uses that require the wholesale removal of natural vegetation or the application of fertilizers, herbicides or other chemicals in excess of normal household use. 3. Dist_i:t_____ a. L_ot__eq_uir______s: All lots are required to meet the following conditions, and a site plan showing compliance with these conditions must be approved by the Building Inspector prior to the commencement of any site clearing or construction: 1) At least 30% of a lot area shall be retained in its natural state except for minor removal of existing trees and ground vegetation. 2) No more than 40% of a lot area may be rendered impervious. – 21 – b. The Board of Appeals may grant a Special Permit allowing a lot requirement contained in § 164-17D(3)(a) to be reduced, provided the Board of Appeals makes the ﬁndings required under §§ 164-17E and 164-44. c. Lan_ses:_______ 1) All___ed: All uses permitted in the underlying zoning districts except those speciﬁcally listed as Special Permit or prohibited uses. 2) By_S_pecialP__r__it, provided the Board of Appeals makes the ﬁndings required under §§ 164-17E and 164-44: a) Sales, storage or transportation of fuel oil or gasoline as a principal use. b) Any use which involves on-site disposal of process wastes from operations other than personal hygiene and food for residents, patrons and employees. c) Any use, other than a single-family dwelling, with a sewage ﬂow, as determined by Title V of the State Environmental Code, exceeding 110 gallons per day per 10,000 square feet of lot area or exceeding 15,000 gallons per day regardless of lot area. d) Any use involving generation, use or disposal of toxic or hazardous materials in quantities greater than associated with norma
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