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Chapter 7.1 Section XI Administration and Enforcement
SECTION XI  ADMINISTRATION AND ENFORCEMENT

A.      BUILDING INSPECTOR:     It shall be the duty of the Building Inspector to administer and enforce the provisions of this bylaw.

B.      PERMIT REQUIRED: It shall be unlawful for any person to erect, construct, reconstruct, or alter a structure without applying for and receiving from the Building Inspector a building permit. It shall be unlawful for any person to change the use or lot coverage or extend or displace the use of any building structure or lot without applying for and receiving from the Building Inspector a use permit.

C.      PREVIOUSLY APPROVED PERMIT: The status of previously approved permits shall be governed by Section IX of this bylaw.

D.      CERTIFICATE OF OCCUPANCY REQUIRED: It shall be unlawful to occupy any structure or lot for which a building permit is required herein without the owner applying for and receiving from the Building Inspector a certificate of occupancy. The Building Inspector shall take action within ten business days of receipt of an application for a certificate of occupancy. Failure of the Building Inspector to act within ten business days shall be considered approval.

E.      PERMIT AND CERTIFICATE FEES: Fees shall be as established by the Selectmen.

F.      PERMIT TIME LIMITS: Any work for which a permit has been issued by the Building Inspector shall be actively prosecuted within 90 days and completed within one year of the date of the issuance of the permit. Any permit issued for a project which is actively prosecuted for one year may be extended at the discretion of the Building Inspector.

If construction under a building permit is not commenced within six months after the issuance thereof and continued through to completion as continuously and expeditiously as is reasonable, or if construction or operations under a special permit granted by the Zoning Board of Appeals are not commenced within one year after the issuance thereof and continued through to completion as continuously and expeditiously as is reasonable, such construction or operations shall conform to any subsequent amendment to this bylaw.

G.      VIOLATIONS: The Building Inspector shall give a notice of VIOLATION AND ORDER to any person or owner responsible for the erection, construction, reconstruction, conversion, alteration of a structure or change in use, increase in intensity of use, or extension or displacement of use of any structure or lot in violation of any approved plan, information or drawing pertinent thereto, or in violation of a permit or certificate issued under the provisions of this bylaw, and such order shall direct the immediate discontinuance of the unlawful action, use or condition and the abatement of the violation.

        Any owner who has been served with a notice and ceases any work or other activity, shall not leave any structure or lot in such a condition as to be a hazard or menace to the public safety, health, morals or general welfare. If, after written notice, a violation of this bylaw continues, the Building Inspector shall institute appropriate legal proceedings to enforce the provisions of this bylaw or to restrain any violation thereof, or both. Whoever violates any provision of this bylaw or any lawful order of the Building Inspector, or fails to take constructive action to rectify any such violations shall be subject, upon conviction, to a fine of not less than twenty-five ($25.00) dollars nor more than one ($100.00) dollars per offense. Each day that a violation continues shall constitute a separate offense.

H.      PROSECUTION OF VIOLATION: If the notice of VIOLATION AND ORDER is not complied with promptly, the Selectmen shall institute the appropriate action or proceeding at law or in equity to prevent any unlawful action, use or condition and to restrain, correct, or abate such violation.

I.      PERMIT GRANTING AUTHORITY AND SPECIAL PERMIT GRANTING AUTHORITY, shall mean the ZONING BOARD OF APPEALS. The Special Permit Granting Authority in the case of Community Antenna Television and commercial and noncommercial kennels shall be the Board of Selectmen. The Special Permit Granting Authority for site plan review special permits under Section XI.J and the cluster special permit shall be the Planning Board.

1.      MEMBERSHIP - There shall be a Board of Appeals of five members and two associate members.

2.      APPOINTMENT - Members of the Board in office at the effective date of this bylaw shall continue in office. Hereafter, as terms expire or vacancies occur, the Board of Selectmen shall make appointments pursuant to the Zoning Enabling Act for a term of three years.

3.      POWERS - The Board shall have those powers granted under the Zoning Enabling Act.

4.      ADOPTION OF RULES - The Board shall adopt rules to govern its proceedings pursuant to the Zoning Enabling Act.

5.      APPEALS - Appeals to the Board shall be taken in accordance with the rules of the Board and the Zoning Act.

6.      ZONING ADMINISTRATOR - The Zoning Board of Appeals, subject to confirmation by the Board of Selectmen, may appoint a Zoning Administrator in accordance with Section 13 of the Zoning Enabling Act.

J.      SPECIAL USE PERMITS:    Certain uses, structures or conditions are designated as exceptions in Section V, Table of Use Regulations and elsewhere in this bylaw. Upon application duly made to the Board of Appeals Planning Board or Board of Selectmen, as the case may be, the Board may, in appropriate cases and subject to the appropriate conditions and safeguards, grant a special permit for such exceptions and no others.

1.      APPLICATION:    Written application shall be filed as required by law for such permit containing a statement of the proposed use or uses, a site plan showing the proposed site development, and such other related information concerning the proposed use of the premises as the Board shall required.

2.      HEARING, ACTION:        Special permits shall only be issued after a public hearing which must be held within sixty-five (65) days or such other period as may be specified by statute, after the effective date of filing of a special permit application. The hearings of the Board shall be conducted in accordance with the provisions of MGL, CH.40A, Section l5.

3.      CONDITIONS:     Special Use Permits shall be granted only upon the concurring vote of four or more members, and only after a consideration by the Building Inspector of the specific site as an appropriate location for the use or structure, the adequacy of public sewerage and water facilities, or the suitability of soils for on-lot sewerage and water systems, the use developed as a possible adverse effect on the neighborhood, undue nuisance or serious hazard to vehicles or pedestrians; and adequate and appropriate facilities to ensure the proper operation of the proposed use, structure, or condition. The Board shall authorize such special permit only when it finds that, in view of these considerations, such exception is consistent with the intent of this bylaw and generally in conformity with the Future Lane Use and Thoroughfare Plan for the town as last revised.

The Board shall also impose in addition to the conditions specified for the following uses such additional conditions as it finds reasonably appropriate to safeguard the neighborhood, or otherwise serve the purposes of this bylaw, including, but not limited to, the following: front, side or rear yards greater than the minimum required by this bylaw; screening, buffers or planting strip, fences, or walls, as specified by the Board; modification of the exterior appearance of the structures; limitation upon the size, number of occupants, method and time of operation, or extent of facilities; regulation of number and location of driveways or other traffic features; and off-street parking or loading or other special features beyond the minimum required in this bylaw.

A special permit granted pursuant to this bylaw shall lapse two years from the granting thereof unless substantial use or construction thereunder shall have commenced within such period.

a.      Cluster Residential Development Bylaw

Intent and Purpose

Whereas, the Town of Holden wishes to allow for greater flexibility and creativity in the design of residential subdivisions, provided that the overall density of the development is no greater than what is normally allowed in the zone, and;

Whereas, the Town desires to encourage the permanent preservation of open space, agricultural lands, and other natural resources, and;

Whereas, the Town desires to maintain the traditional New England character and land use pattern in which small villages contrast with open space and farmlands, and;

Whereas, the Town desires to facilitate the construction and maintenance of streets, utilities and public services in a more economical and efficient manner, and;

Whereas, the Town desires to encourage a less sprawling form of residential development that consumes less open land;

Now, therefore, the Town of Holden hereby adopts the following bylaw which shall be known as the "cluster residential development bylaw."

For the cluster residential development of land for single family, duplex or townhouse residential purposes in any R-40, R-1, R-2, R-10, or R-M districts subject to area regulations less than the minimum required in the Table of Area Regulations, provided:

(l)     Minimum Tract Size - the tract in single or consolidated ownership at the time of application shall be at least ten acres in size and subject to approval by the Planning Board under the Subdivision Control Law.

(2)     Development Plan - A development plan which includes the entire tract shall be submitted for review in accordance with section XI, J, 3, a(9) herein.

(3)    Requirements - Any individual lot to be developed for a single-family detached residential purpose in any R-40 district shall be subject to all requirements for single- family detached dwellings in any R-1 district, each individual lot to be developed for single-family detached residential purpose in any R-1 district shall be subject to all requirements for single-family detached residential purposes in any R-2 district, and any individual lot to be developed for a single-family detached dwelling in any R-2 district shall be subject to the requirements for a single-family detached dwelling in any R-10 district.

SIDE YARD                                        SIDE YARD
50'                                             50'
MIN             150' MAX                        MIN






R.O.W.

Detached single-family dwelling units shall not be allowed in the cluster development of land zoned R-10 or R-M.

(4)     Townhouse Minimum Lot Areas - The front, side and rear yard depths for townhouse construction shall be identical for all residential districts and shall be as shown in the diagram above. No more than six dwelling units shall be attached in any single townhouse structure.

(5)     Determination of Maximum Dwelling Units

(a)     Basic Requirements.
The maximum number of dwelling units that may be constructed under this procedure on a given tract shall be determined as indicated below. This method shall apply regardless of the amount of land actually required for street right-of-ways.

Land utilized by utilities for easement for major facilities such as electric transmission lines and water mains, where such land is not available to the owner for development because of the easements shall not be considered as part of the gross acreage in computing the maximum number of dwelling units under this procedure nor shall the land located within the flood line of a water course, water body or wetland area.

(b)     Method of Determination.

The total number of lots allowable on a site tract proposed for a cluster residential development shall not exceed the number of lots that would be allowed in the zoning district in which the site tract is located. The maximum number of lots allowed shall be determined by the layout of a preliminary sketch plan showing the total number of lots which could be obtained by utilizing a conventional grid subdivision. The burden of proof shall be upon the applicant.

(6)     Conformance to Development Plan - To the extent that is possible and practical, the Planning Board shall require that any proposed cluster subdivision be in conformance to the basic intent of the Development Plan or Plans as last revised, unless it can be shown that said subdivision, in instances or nonconformity, serves better the general area and the town. The proposed cluster subdivision shall be served by the Town water and sewer systems.

(7)     Dwelling Unit Mix - A minimum of 60 percent of the dwelling units must be detached single-family dwellings, except for the case in which the tract is zoned R-10 or R-M, in which case only duplex or townhouse units may be constructed.

(8)     Common Land

(a)     Character and Distribution

Common land shall be distributed to provide immediate access from all sections of the development to the extent reasonably practicable and invisibility shall be maximized from the residential areas. The design of the Cluster Residential development shall be such that, to the extent reasonably practicable the common land serves to separate groups or clusters of lots and dwellings from adjacent property and other groups. At least 50 percent of the common land shall not be land having slopes exceeding 15 percent, or land subject to protection under Mass. General Law Chapter 131, Section 40 (The Wetlands Protection Act) and the Regulations promulgated thereunder (310 Code of Massachusetts Regulations 10.00), as amended or changed from time to time. All common land shall have suitable access to a street and shall provide a separate pedestrian and/or bikeway access apart from the roadway to interconnect all significant portions of the development. Common land as determined in (c) below may be assigned to specific areas when in the judgment of the Planning Board the preservation of such areas is needed to protect Town interest, abutting properties and community amenities. Common land shall be located so as to provide open space buffering between existing development and the proposed residential cluster subdivision, suitable to Planning Board site design concerns.

(b)     USE

Common land shall be restricted to such recreational uses as a park, playground, playfield and similar facilities for the use and enjoyment of the residents or undisturbed conservation areas.

(c)     QUANTITY

Within a cluster residential development, no less than thirty percent (30%) of the total land area, exclusive of land set aside for road area, shall be devoted to common open space. The common open space shall not include land set aside for roads, rights-of-way, parking uses and/or man-made retention or detention ponds.

(d)     OWNERSHIP

The common land so determined in (c) above shall be either conveyed to the town and accepted by it for park or open space use or be conveyed to a non-profit organization the principal purpose of which is the conservation of open space or to be conveyed to a corporation or trust owned or to be owned by the owners of lots or residential units within the plot.  If such a corporation or trust is utilized, ownership therof shall pass with conveyances of the lots or residential units.  In any case where such land is not conveyed to the town, a restriction enforceable by the town shall be recorded providing that such land shall be kept in an open or natural state and not be built for residential use or developed for accessory uses such as parking or roadway.

(9)     Each application to the Planning Board for a cluster residential development special permit shall include information required by the Planning Board in its sub division regulations for the submission of Preliminary Plans (whether or not all of the development constitutes a subdivision), and shall also include the size of the proposed dwellings.

All applications for a cluster residential development special permit under this bylaw shall be referred by the Planning Board to the Board of Appeals for its review and comments within fourteen (14) days after its submission to the Planning Board. The Board of Appeals shall make its recommendations and send a copy thereof to the Planning Board within thirty (30) days of receipt of the referral request by the Planning Board, or there shall be deemed no opposition or desire to comment.

The Planning Board shall study the cluster design with reference to the health, safety and welfare of the prospective occupants, the occupants of neighboring properties, and users of the adjoining streets or highways, and the welfare of the Town generally including its amenities. In addition to compliance with all of the land-space and building space requirements set forth herein, the Board shall be satisfied that the following cluster design objectives are met:

9.1     The distribution of common land in a manner that best meets the open space design intent and purpose of the cluster bylaw concept as set forth above, and protects the Town interest.

9.2     The Board may impose conditions as it finds appropriate to      serve the purposes of this cluster bylaw governing the size of structures to be located within the residential cluster subdivision.

9.3     Traffic safety and ease of access at street and highway entrances and exits of driveways, taking account of grades, sight distances and distances between such driveway entrances, exits and the nearest existing street or highway intersection.

9.4     Safety and adequacy of driveway layout and sufficiency of access for service vehicles such as electricity, gas, fuel, telephone, laundry, rubbish removal, water, sewer, fire, police, ambulance or other routine or emergency vehicles.

9.5     Safe and adequate means of disposal of sewage, of garbage and rubbish, safety and adequacy of water supply and distribution, and of fire fighting facilities on the site.

9.6     Assurance of positive storm-water drainage and snow-melt run-off from all driveways and from all parking and loading areas on the site.

9.7     Compliance with off-street parking and loading requirements as specified in Section VIII of this bylaw.

b.      For the use of a trailer for residential purposes under hardship conditions as determined by the Zoning Board in any "R-40", "R-1" or "R-2" district provided:

(1)     Any trailer shall not be used for more than six months by any family.

(2)     No wheels, tires or other means of keeping the trailer mobile shall be removed; any trailer shall have a current state motor vehicle license.

(3)     No skirts, porches, fences or similar materials or equipment shall be added to any trailer which would detract from its mobility.

(4)     Each trailer and the lot upon which it is situated shall be subject to the same requirements as for a single family detached dwelling in the "R" district in which it is located.

c.      For the use of a single-family detached dwelling in any "R" district for a home occupation, provided:

(1)     No more than one non-resident shall be employed therein.

(2)     The use is carried on strictly within the principal building.

(3)     Not more than 25% of the existing net floor area not to exceed 600 sq. ft. is devoted to such use.

(4)     That there shall be no display of goods or wares visible from the street.

No advertising on the premises other than a small non-electric sign not to exceed 2 sq. ft. in area and carrying only the occupant's name and his occupation such as physician, artisan, teacher, day nurses, lawyer, architect, salesman (type), engineer, clergyman, accountant, osteopath, dentist and similar occupations or professions.

(6)     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, electrical disturbance or in any other way.

(7)     Traffic generated shall not be more disruptive to the neighborhood than traffic normally resulting from residential development considering volume, type, hours and other traffic characteristics.

(8)     Parking generated shall be accommodated off-street, but not more than two (2) spaces shall be in a required front yard.

(9)     No repetitive servicing by truck for supplies and materials shall be required by the home occupation.

(10)    Such special permit shall impose conditions and limitations as necessary to protect abutting properties and the public, including the limitation that the home occupation authorized by the special permit may not be transferred to a different operator without a new special permit, that the occupation shall be subject to compliance review by the Building Commissioner at periods specified in the special permit, and that such special permit may be revoked by a majority vote of the Board of Appeals at any time after notice and hearing, upon the Board's determination that the terms of the special permit are being violated.

Any such building shall not include any feature design not customary in buildings for residential use.

(12)    No special permit can be granted for the following home occupations in any zoning district other than the "R-10" district: clinics, barber shops, bakeries, gift shops, beauty parlors, tea rooms, tourist homes and animal hospitals.

d.      For the planned business development of land for any permitted use in any "C", "BO-P" and "I" district having a maximum building coverage which is more than the maximum permitted in the table of area regulations and/or such a development of land having less than the parking requirements contained in Section VIII provided:

(1)     The tract in single or consolidated ownership at the time of application shall be at least three acres in size, a development plan shall be presented for the entire tract.

(2)     Use shall be contained in one continuous building except that groupings of buildings may be allowed by special permit of the Board where such groupings are consistent with the safety of the users of the development and are further consistent with the overall intent of this section the development shall be served by one common parking area.

(3)     The ratio of the net floor area of the building to the total lot area shall not exceed 0.50.

(4)     Parking requirements are to be 90% of those otherwise required for the district in which the planned business development is located.

e.      For the filling in of any pond, lake, swamp, or other existing body of water or wet area, and the filling in of any swale, valley, or other area or depression where such filling in requires an amount of fill equivalent to 500 cu. yards or more or where the area to be filled in exceeds 10,000 sq. ft. and for the excavation and removal of sod, loam, soil, top-soil, clay, sand, gravel or other earth materials from or on any land which changes substantially the existing contours thereof, such uses shall be permitted only after the granting of a special permit, for a period of at least one year or as may be otherwise specified by the Board issued under such conditions as the Board may impose to prevent damage to adjoining property and to protect the health, safety, convenience, and welfare of the community, provided however, that such a special permit shall not be required for a person who is constructing a subdivision approved by the Holden Planning Board or for a person, who in situations regulated under Chapter 131 of the General Laws, the so-called "Hatch Act", as last amended, has filed with the Holden Board of Selectmen, in accordance with said Act, written notice of his intention to so fill, excavate or remove, including such plans as may be necessary to describe the proposed activity. Additional conditions may include among others:

(1)     Submission of a reference map at a scale of l" = l,000' showing the area to be filled in or excavated, property lines within which the filling in or excavation is proposed and tie-in to the nearest road intersection.

(2)     Submission of a map to a scale of l" = 40' of the premises and surrounding area within 100 ft. showing in addition to (l) above, existing and proposed contour lines at intervals of not more than 2 feet resulting from the proposed filling in or removal in relation to the topography of the premises, said map to be prepared by a registered civil engineer or land surveyor.

(3)     Provision for temporary and permanent drainage of the site.

(4)     Limitation of excavation or fill to terrace cuts or terrace fills which are not to exceed 10 ft. at any one time nor be within 10 ft. of an adjacent property line or any cut.

Regrading of all or parts of the slopes resulting from such excavation or fill.

Replacement of at least 4 in. of topsoil over all excavated, filled or otherwise disturbed surfaces and seeding with a perennial cover crop, reseeded as necessary to assure uniform growth and soil surface stabilization. Also, as a condition precedent to the granting of such permit, the Board shall require a bond signed by the owner and applicant as principals in an amount to be determined by the Board with a sufficient surety approved by the Board, to be posted with the Town of Holden to assure fulfillment of any condition imposed, within such time as the Board may set.

(7)     Submission of plan for lighting if night operation is contemplated.

(8)     Where any excavation or fill will have a depth of 10 ft. or more and create a slope of more than l in 2 there shall be a substantial fence enclosing the fill or excavation, at least 6 ft. in height with suitable gates. Such fence shall be located 50 ft. or more from the edge of the excavation or fill.

f.      Uses accessory to and necessary for the operation of any permitted use involving scientific research or development or related production shall be permitted on the same or different parcel from that on which the permitted scientific research or development or related production is located if the Board of Appeals grants a special permit therefor after finding that the proposed accessory use does not substantially derogate from the public good.

g.      Site Plans: The following instances shall require the issuance of a site plan review special permit from the Planning Board in accordance with the provisions of this Section XI.J.3.g.:

(A)     If a use is being commenced or changed from one use to another and if Table 4. of the Zoning Bylaw requires ten (10) or more parking spaces (e.g. a new mall is being proposed or a house is being changed to a bank). If there is a change of use and the change does not require an increase in parking under Table 4., then no site plan review special permit shall be required (e.g. a card store is being change to a lawyer's office).

(B)     If there is a change of use and Table 4. requires ten (10) or more parking spaces, and if the change of use requires the issuance of a special permit or a variance (e.g. a restaurant is being proposed).

(C)     If a building is being enlarged and Table 4. requires ten (10) or more parking spaces, even if the parking requirement is not increased by the enlargement (e.g. a hospital is proposing a new wing).

(D)     If a use is being commenced or changed from one use to another and the use involves a drive-up or self activating facility, regardless of the number of parking spaces required by Table 4.

(1)     Applications .  Special permit application forms shall be submitted in duplicate and shall be accompanied by eight (8) copies of the proposed site plan and such other documents and fees as the Planning Board may require.

(2)     Content of Plans.  Site plans shall be submitted in a scale of not less than 1”=40’. Site plans shall show the boundaries of the premises, label direct abutters, existing and proposed topography, existing and proposed buildings including the facades thereof, parking, screening, water, sanitary sewerage, storm drainage, loading areas, driveway openings, driveways, service areas and lighting. A landscaping plan must be submitted designating the location and species of each proposed and existing planting.  There must be a landscaping table included on the plan which lists species, quantity, and size. All dumpsters, outside storage areas, generators and other similar structures must be marked on the landscaping plan and designate proposed screening. Fencing must show location, type and height.

(3)     Review . In reviewing each such application, the Planning Board shall determine that the site plan is so designed as to assure the following:

(a)     Adequate parking and safety of internal circulation and egress.

(b)     Traffic safety and ease of access at street and high- way entrance and exits of driveways, taking account of grades, sight distances and distances between such driveway entrances, exits and the nearest existing street(s) or highway intersection(s).

(c)     Adequate access to each structure for fire and service equipment.

(d)     Adequate utility service and drainage, consistent with the performance standards of the Subdivision Control Regulations for the Town of Holden.

(4)     Applications approved under this section shall be constructed according to plans submitted to the Planning Board, and any modification(s) thereof after Planning Board approval, including changes to the facade of the structures as presented to the Planning Board during review of the Special Permit, shall require the approval of such modification by the Planning Board. The Planning Board may approve such modification during any regular meeting of the Planning board if the Board determines that the modification is not substantial. Any substantial modification shall require a full submission under the application procedure outlined in item 1 of this section.

h.      Accessory Apartment Zoning By-law

(1.0)   Intent and Purpose .

Whereas, the Town provides a variety of types of housing to meet the needs of its residents; and

Whereas, the Town of Holden wishes to expand the permitted types of housing to provide an opportunity for older persons who cannot physically or financially maintain their own home to live in homes of relatives; and

Whereas, the Town wishes to protect the stability, property values and the single-family residential character of neighborhoods and at the same time accommodate so-called in-law apartments; and

Whereas, the Town wishes to authorize the creation of such accessory apartments and at the same time encourage the Town to monitor conversions for code compliance;

Now, therefore, the "Accessory Apartment Zoning By-Law" is hereby established;

(2.0)   Special Permit Procedures and Conditions

The Board of Appeals may authorize an Accessory Apartment by Special Permit in any residential district, provided that each of the following standards and criteria are met:

(a)     The Accessory Apartment may be a complete, separate housekeeping unit that functions as a separate unit from the one-family detached dwelling of which it is a part. Such unit may be occupied only by persons related by blood or marriage to the owner(s) of the one-family dwelling.

(b)     Only one Accessory Apartment may be created within a one-family dwelling.

An Accessory Apartment may only be created in a dwelling which would otherwise be classified as a one-family detached dwelling. An accessory apartment must be attached to the main residential structure and shall share a common wall with the main residence.
(d)     The lot on which the single-family house is located must have a minimum of 10,000 square feet and must comply with all applicable zoning requirements for its district after the accessory apartment has been created.

(e)     Adequate provision must be made for the disposal of sewage, waste and drainage generated by the occupancy of the entire dwelling including the Accessory Apartment in accordance with the requirements of the Holden Board of Health.

(f)                             The Accessory Apartment shall be designed so that the appearance of the building remains that of a one-family detached dwelling as much as is feasibly possible. Any new entrances shall be located on the side and rear of the building.

(g)     The Accessory Apartment shall be clearly a subordinate part of the one-family dwelling. It shall be no greater than seven hundred (700) square feet nor have more than two (2) bedrooms. Accessory apartment consisting of 850 square feet may be permitted for handicapped accessibility.

At least three off-street parking spaces must be provided for any one-family dwelling which has an Accessory Apartment.

(i)     The construction of any Accessory Apartment must be in conformity with State Building Code requirements. Two means of egress must be provided to comply with State Building Code.

(j)     Any Accessory Apartment Special Permit shall (A) be personal to the owner(s) to which it is granted, (B) automatically terminate if no owner of the one-family dwelling occupies the one-family dwelling as his or her principal residence, (C) only allow the
relatives specified in the application for the Special Permit to live in the Accessory Apartment and (D) automatically terminate on any transfer of the fee ownership of the one-family dwelling except, in the instance where there is more than one owner, a transfer among owners.

(k)     No apartments shall be permitted in any residential district except in accordance with the provisions of this Accessory Apartment Zoning By-Law or as otherwise specifically authorized by the Table of Use Regulations, Table 1. All Accessory Apartments which meet the above conditions must obtain the final approval of the Town of Holden Building Commissioner.

(l)     All Accessory Apartments which are affordable as defined by the income limits placed by the Department of Housing and Community Development may be included in the affordable housing inventory upon agreement of the applicant and resident of the accessory apartment.

(3.0)   Application Procedure

(3.1)   The application for the submission and approval of a Special Permit for an Accessory Apartment in the owner-occupied one-family dwelling shall be the same as prescribed in Sections XI-J-1 and XI-J-2 of the Holden Zoning By-Law, except that said Special Permit application shall include a notarized letter of application from the owner(s) stating that (a) he/she/they will occupy one of the dwelling units on the premises and (b) the name(s) of the relatives who will occupy the Accessory Apartment.

(3.2)  Upon receiving a Special Permit, the owner(s) must file on the subject property a Declaration of Covenants in the form attached with appropriate insertions at the Worcester County Registry of Deeds or the Worcester Registry District of the Land Court, as applicable. A time-stamped copy of the recorded Declaration shall
be provided to the Board of Appeals and to the Building Inspector as a precondition to the issuance of any building permit.

(3.3)   In order to provide for disabled and handicapped family members, the Board of Appeals may allow reasonable deviation from the stated conditions of subsection 2.0 above where necessary to install features that facilitate access and mobility for disabled persons.

(4.0)   Transfer of Ownership of a Dwelling With an Accessory Apartment

(4.1)   As stated in subsection 2.0 (j), each Accessory Apartment Special Permit shall terminate upon any transfer of title except among the owners of the one-family dwelling.

(4.2)   No successor in title to a one-family dwelling for which an Accessory Apartment Special Permit shall have been granted may use the apartment as a separate dwelling unit unless a new Special Permit is first obtained and unless a new Declaration of Covenants is recorded or registered as required by subsection (3.2).

(5.0)   Accessory Apartments in Existence Before the Adoption of an Accessory Apartment By-Law

(5.1)   Apartments or conversions existing on the effective date of this Accessory Apartment Zoning By-Law, for which an acknowledgment of applicable zoning restrictions was recorded or registered prior to such effective date, may continue to be used as contemplated by the acknowledgment. As used herein, an "acknowledgment of applicable zoning restrictions" means a writing signed by the owners of the premises which acknowledged that the premises could not be used as a two-family dwelling and restricted the use of the apartment/conversion to specified relatives of the owners of the premises.

(5.2)  Apartments or conversions existing on the effective date of this Accessory Apartment By-Law which are not protected by subsection 5.1 may only be continued if an Accessory Apartment Special Permit is obtained and if all of the preceding provisions of this Accessory Apartment By-Law are satisfied.

i.      Mixed Use Development

Intent. The intent of Mixed Use Development is to provide for the coordinated and mixed development of residential, commercial and business office-professional uses in certain sections of the community; to foster a classic village appearance and development; to make such mixed uses accessible to pedestrian traffic while improving the appearance of the community; and to encourage expanded use of the Main Street corridor.

A Mixed Use Development shall require a Special Permit from the Planning Board pursuant to Section XI.J. All uses permitted in the C and BO-P zoning districts are permitted in a Mixed Use Development except as set forth in Section XI.J.3.i.(3). Notwithstanding the provisions of Section V.F. Table 1 USE REGULATIONS the following uses are permitted in a Mixed Use Development:

(a)     two, three and four family dwelling
(b)     duplex
(c)     townhouse

The following uses are prohibited in a Mixed Use Development notwithstanding the provisions of Section V.F. Table 1 USE REGULATIONS:
(a)    an automobile repair service and garages
(b)     construction industry including supplies
(c)     open storage of construction equipment
(d)     adult book store, adult dance club or adult theaters

Dimensional Requirements

The Dimensional requirements of the zoning district in which the Mixed Use Development is located, as set forth in Section VI, Table 2, shall apply, except as hereinafter provided.
Residential use in a Mixed Use Development shall not exceed three (3) dwelling units, notwithstanding Section V.F.

TABLE OF USE REGULATIONS regarding residential develop-ment, and shall not exceed fifty percent (50%) of the total gross floor area of the Mixed Use Development.
The minimum lot area for a Mixed Use Development shall be computed as follows:

(i.)    If the residential use is located in the same building as the commercial/business office-professional use, the minimum lot area for the Mixed Use Development shall be that required for the commercial/business office-professional use, and no increase in the minimum lot area shall be required due to the residential use.
If the residential use is not located within the same building as the commercial/business office-professional use, the minimum lot area for the Mixed Use Development shall be the minimum lot area for the commercial/business office-professional use, plus 3,500 square feet for each dwelling unit.

(iii.)  Parking shall be provided for each use in the Mixed Use Development in accordance with the requirements of Section VIII, Table 4, but may be reduced by the Planning Board in accordance with the provision of Section VIII.B.5 in connection with the issuance of a special permit pursuant to Section XI.J.3.i. (2)

j.   Affordable Housing By law

This section is adopted pursuant to Chapter 40A, Section 9 of the General Laws and as a Local Initiative Program under 760 CMR 45 to encourage various housing types for various ages and income levels and create affordable housing, to help people who have lived and work in the Town of Holden and have been unable to obtain suitable housing at a reasonable price, and to maintain a stable economy by promoting the diversity of income groups who provide necessary and essential services to the community.

The Planning Board may issue a special permit which allows an increase in density of a residential development through a partial relaxation of the area requirement in the Table of Area Regulations in accordance with procedures described below and provided a minimum of 15% of the dwelling units developed on the subject property are to be sold and maintained at affordable prices (“Affordable Units”) according to standards described in this by law.  The Affordable Units shall be decent, safe and sanitary housing and shall be restricted for occupancy by household of low or moderate income.  For purposes of this bylaw, “Low or Moderate Income” shall mean a household income which does not exceed 80% of the area median income for the Town based on household size as determined by the U.S. Department of Housing and Urban Development.

(1)       Number of Affordable Units:  The number of Affordable Units allowed in excess of dwelling units permitted in the underlying zoning district shall be determined by the Planning Board, pursuant to the project approval requirements of this bylaw.  In no case, however, shall the density increase for a project exceed one (1) unit per acre from the density requirements set forth in Section VI Area Regulations. The calculated increase in density will not consider the use of unbuildable land area.  Unbuildable land area is considered to be wetlands, area within the 100 year flood plain as represented on the FEMA Maps, and areas with slopes in excess of 15%.   The increase in density can be calculated by taking the total lot size and subtracting the unbuildable area, then subtracting an additional 10% of the remaining buildable area to represent any proposed roadways if applicable.   

(2)     Design Standard:   All applications for a special permit hereunder shall include design standards for the proposed development to insure conformity and compatibility among all units.  Affordable Units shall be disbursed evenly throughout the development.  Other requirements for design shall follow the other requirements of this zoning bylaw.  The density controls of this bylaw may be modified upon a finding by the Planning Board that such modification creates no adverse impacts on health, safety, and welfare of the community, and is found to be in the public interest because of the high quality of design that would result, and does not denigrate from the intent of the by law.   Applicants must also submit for approval a schedule of construction that provides for the delivery of the Affordable Units concurrent with the delivery of market-rate units.

Architectural drawings of all housing styles must be provided with the application and shall be subject to the approval of the Planning Board.  

No more then eight units will be permitted in one building.

All roads, driveway, utilities and drainage facilities within the Affordable Housing Development shall be designed and constructed in conformance with the Town of Holden Subdivision Control Regulations.  The Planning Board may waive said rules and regulations if it determines that such action will advance the intent of these regulations.

The minimum required setbacks for the underlying zone will be appli-cable to the project lot perimeters though a greater buffer area may be required by the Planning Board.  

(3)       Long Term Affordability and Criteria:  To qualify for a special permit pursuant to this bylaw, the applicant/developer must demonstrate to the satisfaction of the Planning Board that the proposed Affordable Unit(s) satisfy all of the following criteria:

(a)      Income and Asset Limits:  For tenants and purchasers household income shall not exceed 80% of median income for the Town based on household size as determined by the Massachusetts. Department of Housing and Community Development.  For tenants of rental housing and purchasers of ownership housing there shall be reasonable household asset limits; asset limits shall not be so high that a household has no substantial need of a rental unit with a reduced rent or of an ownership unit with a reduced purchase price.

(b)      Affordability of Rental Units:  Monthly rents payable by a household shall not exceed 30% of the monthly income of a household earning 80% of median income for the Town based on household size.  If services are included in the month rent (e.g. assisted living projects), and monthly rent exceeds the limit set forth in the previous sentence, the services must be clearly defined and sufficiently comprehensive to justify the additional percentage of household income that must be devoted to rent.  In the event a unit receives a state, federal or local subsidy, maximum rent may be as provided in the rent subsidy program so long as the tenant share of rent does not exceed the maximum set herein as determined by the Massachusetts Department of Housing and Community Development.

(c)      Affordability of Ownership Units:  Initial purchase prices and resale prices shall be established so that households are not required to spend more than 30% of the income of a household earning 80% of area median income for annual debt service on a mortgage (at 30-year fixed-interest rates at the time of initial sale), taxes, insurance and condominium or homeowners fees with no more than five percent (5%) down-payment, including any required entrance deposit.

(d)     Use Restriction:  there shall be a Use Restriction imposed upon the title to every Affordable Unit at the time of initial sale of the unit.  Fore Rental Housing, the developer shall covenant to the Town, as a condition of the special permit, that it will operate and manage the Affordable units in accordance with the provision of this bylaw and shall provide for effective monitoring, administration and enforcement during the term of affordability.  The Use Restriction imposed shall include the conditions of the Special Permit, if any, as well as the following: (i) a local public or quasi-public entity, such as the Holden Housing Authority, must be a holder of the restriction with the right and the obligation to enforce it during the term of affordability; (ii) the restriction must provide for effective monitoring, and enforcement by the local or quasi-public holder which may enter into a construct for monitoring services with a private entity experienced in affordable housing operation, but which retains final responsibility for ensuring compliance with the restriction; (iii) the restriction shall provide for selection of eligible tenants of rental units or owners of ownership units in a fair and reasonable manner in compliance with fair housing laws, and such tenants and owners shall be required to occupy the units as their domiciles and principal residences; (iv) absent demonstrable need for a shorter term of affordability, there shall be a term of perpetuity (provided that the Use Restriction of an Accessory Apartment maybe conterminous with the ownership of the dwelling to which it is accessory).

(e)      Nondiscrimination in Tenant or Buyer Selection:  There shall be a specific prohibition of discrimination on the basis of race, creed, color, sex, age, handicap, marital status, sexual preference, national origin or any other basis prohibited by laws in the leasing or sale of any Affordable Unit.

(f)    Successors in Title:   The restrictions imposed pursuant to paragraphs (d) and (e) above shall be recorded/registered in the applicable Registry of Deeds or Registry District and shall run with the land and be binding on all successors in title to the Affordable Unit.

(4)      Project Approval Requirements:  The Planning Board shall review an application for a special permit pursuant to this bylaw and may approve the special permit if, in the Board’s sole discretion:

(a)      The Board is satisfied that the applicant has conformed to all guidelines set forth and will produce the Affordable Unit (s) required under this bylaw.

(b)      The proposed development site plan is designed to provide a development that is consistent with the existing area and natural features.

(c)      The Board makes a finding that the increased density and/or relaxation of the requirements set forth in the Table of Area Regulations does not have a detrimental effect on the character of the neighborhood.

(d)      The Board has obtained a determination from the Massachusetts Department of Housing and Community Development or has reason to believe that the Affordable Units to be created by the applicant will count towards the Town’s Subsidized Housing Inventory.

K.      VARIANCES.  The Board may grant variances from the provisions of this bylaw including without limitation variances authorizing uses or activities where owing to circumstances relating to the soil conditions, shape, or topography of such land or structures especially affecting such parcel or such building but not affecting generally the Zoning District in which it is located. A literal enforcement of the provisions of this Zoning Bylaw would involve substantial hardship, financial or otherwise, to the appellant and where 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 Zoning Bylaw. In authorizing such variance, the Board may impose limitations both of time and use as permitted by law, but excluding any conditions, safeguards, or limitations based on continued ownership of the land or structures to which the variance pertains by the applicant, petitioner or any owner.

If the rights authorized by a variance are not exercised within one year of the date of granting such variances, they shall lap and may be reestablished only after notice and new hearing.


 
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