Town of Provincetown

Public Notice

Amendments to the Provincetown Zoning By-Laws

April 2009 Annual Town Meeting

Notice is hereby given that the following amendments to the Provincetown General By-Laws, as voted by the April 6, 2009 Annual Town Meeting, were approved by the Massachusetts Attorney General on July 14, 2009. This notice is published pursuant to Massachusetts General Law C.40§32. Any claims that a zoning by-law is invalid because of a defect in the procedure by which the by-law was adopted or amended may only be made within ninety (90) days of this posting. Copies of the zoning by-laws may be examined and obtained from the Town of Provincetown, Office of the Town Clerk, 16 Jerome Smith Road, Provincetown, MA 02657. By-laws are also available for viewing at the Town web site www.provincetown-ma.gov.

Article 26. Zoning By-law Amendment: Article 6 Growth Management By-Law, Section 6200 Applicability. To amend the Provincetown Zoning By-laws, as follows, with additions shown as underlined and deletions in strikethrough:

Section 6200 Applicability

1. Except as provided below this Growth Management By-law shall apply to all new construction, including new structures and enlargement, alteration or renovation of existing structures, to all new uses, and to all expansions, changes, or alterations of existing uses, which will result in an increase, no change, or a decrease in Title 5 Design Flow (pursuant to 310 C.M.R. 15.203 (2) through (6), and Board of Health Regulations Part 7 Local Title V Supplements) as determined by the Health Agent.

2. No building permit shall be issued for a new structure or for the enlargement, reduction, renovation or alteration of an existing structure and no occupancy permit shall be issued for any new use or any reduction, expansion, change or alteration of an existing use for which no building permit is required; until and unless:

(a) The Health Agent determines the amount, if any, by which Title 5 Design Flow will increase or decrease as a result of the proposed structure or use. In making determinations of Title 5 Design Flow, the Health Agent shall apply the definitions of Fixed Standing and Seats as defined in Article 1, where applicable; and

(b) In the event the Health Agent determines the amount of Title 5 Design Flow will increase, the property owner obtains a Growth Management Allocation Permit sufficient to allow the increase.

3. If the Health Agent determines under Section 6200-2a that a decreased Title 5 Design Flow will result, then during a two-year period following the issuance of the building permit or occupancy permit, whichever is earlier, for such structure or use, no Growth Management Allocation Permit will be required for any subsequent change in such structure or use that increases its Title 5 Design Flow up to and including the Title 5 Design Flow amount so determined by the Health Agent prior to the decrease in Title 5 Design Flow, unless the owner has abandoned the prior use or intensity of use. Such abandonment shall occur by wholly changing such use to a different principal use, or by issuing a written statement or covenant to the Town expressly abandoning the prior use or intensity of use.

4. This Growth Management Zoning By-law shall not apply to:

a. Municipal Uses;

b. approved Laundromats;

5. Notwithstanding any other provisions of this By-law to the contrary, any building permit issued for construction authorized by a special permit granted prior to December 31, 2000 shall continue to be governed by the applicable provisions of the Growth Management By-law in effect on the date the special permit was granted, provided that:

(1.) the building permit application for such construction was submitted to the Department within six months of the date of the grant of the authorizing special permit, and

(2.) any delay in issuance of the building permit beyond the six month period following the grant of the special permit was due solely to the annual building permit limitations contained in the Growth Management By-law in effect on the date the special permit was granted.

6. This Growth Management Zoning By-law shall not apply to:

a. the demolition, reconstruction and/or remodeling of dilapidated and/or condemned structures deemed by the Inspector of Buildings on or before March 1, 2000 to be a public safety hazard subject, however, to all other provisions of these By-laws governing maintenance, extension, alteration or change to pre-existing structures and/or uses.

b. c. construction of a single-family dwelling, one per lot, upon a vacant lot by the record of owner(s) thereof appearing at the Barnstable County Registry of Deeds as of March 1, 2000 which is intended to be occupied and is subsequently occupied for a continuous period of at least two (2) years by said owner(s) as his/her/their permanent principal residence. An Affidavit of Intention setting forth the owner(s) certification of intended commitment to compliance with the requirements of this subsection and signed and notarized under the pains and penalties of perjury by said record owner(s) shall be filed with the Inspector of Buildings with any building permit application filed pursuant to this exception. No property utilizing this exception shall be eligible to receive an additional Growth Management Allocation Permit for a period of five (5) years from the date of issuance of the original Growth Management Allocation Permit nor may a qualifying person or persons under this exception ever re-qualify for a further exception under this subparagraph b. c;

c. d. single family dwellings where the owners are the resident and have a private well suitable for drinking. Said lot shall not be permitted to connect to the Town's water system.;

7. e. This Growth Management By-law shall not apply to health care related uses in the Health Care Overlay District.

Section 6300 Procedure

1. Application for a Growth Management Allocation Permit may be made in writing to the Permit Coordinator only after having first applied for received all other permits, (except building and occupancy permits), licenses, special permits, variances, determinations and/or orders of conditions for the proposed construction and/or use as deemed necessary by the Permit Coordinator including, if applicable, Affordable Housing and/or Community Housing Permits awarded by the PLHP Provincetown Community Housing Council (PCHC) or Economic Development Permits awarded by the Board of Selectmen. For purposes of such application, statutory appeal periods relative to said permits, variances, special permits, determinations and/or orders of conditions, need not have expired without appeals having been taken in order for the Permit Coordinator to determine that an application for a Growth Management Allocation Permit is completed.

2. In order to be considered complete, a Growth Management Allocation Permit application must be accompanied by the application for any building permit required for the proposed construction or, if no building permit is required, the application for an occupancy permit.

3. Growth Management Allocation Permits shall be issued, after completion of the annual growth management review by the Board of Selectmen, in the order that the completed applications have been received, based upon the allowed Growth Limitation Goal allocation for each category at the beginning of each calendar year in the order that Completed Applications have been received in the Department of Regulatory Management and after the Department of Regulatory Management has had 30 days to review the completed application.

4. Affordable Housing Permits and/or Community Housing Permits will be authorized on a priority basis as established by the PCHC, using criteria including but not limited to housing quality standards, quality of design, degree of affordability in terms of cost, and financial feasibility of the proposal. No Affordable Housing Permit and/or Community Housing Permit shall be issued without prior authorization of the PCHC. Each property in which 100% of the dwelling units are Affordable Housing and/or Community Housing, and for which an Affordable Housing Permit or a Community Housing Permit is granted, shall be deemed a public service use under Section 3 of Chapter 157 of the Acts of 2000.”

5. Discontinued and Abandoned Uses.

a. Discontinued. The Health Agent shall, two years after a determination of decreased Title 5 Design Flow pursuant to section 6200.2(a), and provided that such Title 5 Design Flow has not increased during the two year period, or two years after actual discontinuance of use pursuant to a growth management allocation permit, assign the difference in gallonage between the prior, higher Title 5 Design Flow and the current Title 5 Design Flow to a “Surplus Gallonage Pool.” back to the corresponding General Use Category.

b. Abandoned. In the event a property owner abandons the prior use or intensity of use pursuant to Section 6200-3, the Health Agent shall immediately assign the difference in gallonage between the prior, higher Title 5 Design Flow and the new Title 5 Design Flow to a “Surplus Gallonage Pool.” back to the corresponding General Use Category.

Section 6500 Table of Use Categories and Priorities

GENERAL USE CATEGORY 1

1a. Affordable Housing Units

1b. Medium Median Income Community Housing Units

1c. Middle Income Community Housing Units

GENERAL USE CATEGORY 2

The non-affordable housing components of project consisting of:

2a1 Multi-family dwellings projects that consist of 50%-99% affordable housing

and/or community housing

2a2 Two-family dwellings projects that consist of 50%-99% affordable housing and/or community housing

2a3 Single-family dwelling projects that consist of 50%-99% affordable housing and/or community housing

2b1 Multi-family dwelling projects that consist of 33%-49.9% affordable housing and/or community housing

2b2 Two-family dwelling projects that consist of 33%-49.9% affordable housing and/or community housing

2b3 Single-family dwelling projects that consist of 33%-49.9% affordable housing and/or community housing

GENERAL USE CATEGORY 3

3a. Expansions or alterations to existing residential structures or uses that result in increased Title 5 flow, not to exceed the Title 5 Design Flow pursuant to 310 CMR 15.203(2) for one bedroom per year per applicant not to exceed a total of 330 gallons per year.”

3b. Single-family dwelling, one per lot; two family dwelling, one per lot.

3c. All other market rate residential projects without affordable housing components that result in increased Title 5 flow.

GENERAL USE CATEGORY 4

4a Office, Artists’ Studio, For-profit Nursing home, For-profit Outpatient Rehabilitation Facility Projects that receive an Economic Development Permit

4b Boarding, Lodging or Tourist Homes Non-Profit or Community Service Uses which meet a critical community need as determined by the Board of Selectmen

4c Boarding, Lodging or Tourist Homes, Hotel, Motel, Inn, Camp, Cabin, Dormitory Housing

4d Restaurant and Bar

4e 4d All other non-residential uses, expansions or alterations to existing structures or uses and any change in use or increase in posted occupant load that results in increased Title 5 Design Flow.

GENERAL USE CATEGORY 5

5a Economic Development pursuant to an Economic Development Permit.

Section 6600 Growth Limitation Goal Allocations

Initially, 13,200 gpd shall be allotted for assignment for Use Category 1a. Thereafter,

unassigned gallonage allotment shall be as follows in the order listed.

1. Annually, during the Growth Management Review, the Board of Selectmen may allocate up to 1650 gpd to General Use Category 1, provided that the Board of Selectmen shall have made a finding that the Town is in compliance with the water withdrawal permit issued by the Department of Environmental Protection (“DEP”) pursuant to 310 CMR 36.00 and all applicable rules and regulations promulgated by DEP with respect thereto.

The Selectmen shall have the flexibility with the General Use Category 1 to distribute the 1650 gallons amongst the Use Categories 1a, 1b, and 1c, based on the recommendation of the PCHC within the Annual Growth Management Report.

All unassigned gallonage remaining at the end of each calendar year for General Use Category 1a, 1b and 1c shall remain available be allotted for assignment in the next calendar year for those same categories, respectively Use Category 1a, 1b, and 1c.

2. Unassigned gallonage remaining at the end of each calendar year for General Use Categories 1b and 1c shall be allotted for assignment in the next calendar year for those same categories, respectively (1b to 1b and 1c to 1c).

3. One quarter of the unassigned gallonage remaining at the end of each calendar year for General Use Categories 3 and 4 shall be allotted for assignment in the next calendar year for Use Category 1a; two quarters of said remaining unassigned gallonage shall be so allotted for Use Category 1b; and one quarter of said remaining unassigned gallonage shall be so allotted for Use Category 1c.

4. One half of the unassigned gallonage remaining at the end of each calendar year for General Use Category 2 shall be allotted for assignment in the next calendar year for Use Category 2 and one half of said remaining unassigned gallonage shall be so allotted for Use Category 3. On the effective date of this zoning by-law amendment and on the anniversary thereof in 2005, 2006, 2007 and 2008, 550 gallons per day shall be added to the allotment for Use Category 1a, provided that prior to each such anniversary, the Board of Selectmen shall have made a finding that the Town is in compliance with the water withdrawal permit issued by the Department of Environmental Protection (“DEP”) pursuant to 310 CMR 36.00 and all applicable rules and regulations promulgated by DEP with respect thereto.

1a. On the effective date of this zoning by-law amendment and on the anniversary thereof in 2005, 2006, 2007 and 2008, 1,100 gallons per day shall annually be added to the allotment for Use Category 1b, provided that prior to each such anniversary, the Board of Selectmen shall have made a finding that the Town is in compliance with the water withdrawal permit issued by the Department of Environmental Protection (“DEP”) pursuant to 310 CMR 36.00 and all applicable rules and regulations promulgated by DEP with respect thereto.

1b. On the effective date of this zoning by-law amendment and on the anniversary thereof in 2005, 2006, 2007 and 2008, 550 gallons per day shall annually be added to the allotment for Use Category 1c, provided that prior to each such anniversary, the Board of Selectmen shall have made a finding that the Town is in compliance with the water withdrawal permit issued by the Department of Environmental protection (“DEP”) pursuant to 310 CMR 36.00 and all applicable rules and regulations promulgated by DEP with respect thereto.

1c. On the effective date of this zoning by-law amendment and on the anniversary thereof in 2007 and 2008, 990 gallons shall be allocated for assignment to Use Category 3a for projects where Completed Applications were filed prior to March 31, 2005.

2. The Growth Limitation Goal shall be allocated for categories 2, 3 and 4 each year as follows:

(a.) 1,870 gpd shall be allocated for assignment under General Use Category 2.

(a) Annually, during the Growth Management Review, the Board of Selectmen may allocate up to 1,100 gpd to General Use Category 2, provided that the Board of Selectmen shall have made a finding that the Town is in compliance with the water withdrawal permit issued by the Department of Environmental Protection (“DEP”) pursuant to 310 CMR 36.00 and all applicable rules and regulations promulgated by DEP with respect thereto.

All unassigned gallonage remaining at the end of each calendar year for General Use Category 2 shall remain available for assignment in the next calendar year for General Use Category 2.

(b.) 1,100 gpd shall be allocated for assignment under General use Category 3.

(b) Annually, during the Growth Management Review, the Board of Selectmen may allocate up to 1,870 gpd to General Use Category 3, provided that the Board of Selectmen shall have made a finding that the Town is in compliance with the water withdrawal permit issued by the Department of Environmental Protection (“DEP”) pursuant to 310 CMR 36.00 and all applicable rules and regulations promulgated by DEP with respect thereto.

All unassigned gallonage remaining at the end of each calendar year for General Use Category 3 shall remain available for assignment in the next calendar year for General Use Category 3.

(c.) 700 gpd shall be allocated for assignment under General Use Category 4.

(c) Annually, during the Growth Management Review, the Board of Selectmen may allocate up to 1,250 gpd to General Use Category 4, provided that the Board of Selectmen shall have made a finding that the Town is in compliance with the water withdrawal permit issued by the Department of Environmental Protection (“DEP”) pursuant to 310 CMR 36.00 and all applicable rules and regulations promulgated by DEP with respect thereto.

All unassigned gallonage remaining at the end of each calendar year for General Use Category 4 shall remain available for assignment in the next calendar year for General Use Category 4.

3. Initially, 5,000 gpd shall be allotted for assignment for General Use Category 5. Gallonage in the Surplus Gallonage Pool shall be allocated to General Use Category 5 as such gallonage accrues.

4. 3. Growth Management Review. Annually, by November 15, January 15, the Town Manager, in consultation with the DPW Director, Water Superintendent, Permit Coordinator, Planning Board, Board of Health, Water & Sewer Board, and Provincetown Community Housing Council (PCHC) and the Local Comprehensive Plan Implementation Committee shall evaluate the effects of growth on our resources over the past year, including but not limited to potable water supply, solid waste disposal, and wastewater disposal, and the inventory of affordable housing and issue an Annual Growth Management Rreport to the Board of Selectmen on those impacts and their recommendations therefore. The Board of Selectmen shall hold a Public Hearing on the Rreport in December of each year within 30 days, and make a determination as to the amount of the Growth Limitation Goal Allocations, not to exceed the assigned allocations in Section 6600 for the upcoming year.

Article 27. Zoning By-law Amendment: Section 2330 Floodplain District Boundaries and Base Flood Elevation Data. To amend the Provincetown Zoning By-laws, as follows, with changed text shown in underlined, bold, italics and deleted text shown as strikethrough.

Provincetown Zoning Bylaws

Section 2330 Floodplain District Boundaries and Base Flood Elevation Data 

2330 Class "A, V and A-O" Flood Area Overlay Districts Provisions.

Permits for new construction, alteration of structures, or other development (any man-made change to improved or unimproved real estate, including but not limited to buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations) at or below the Base Flood Elevation (10' above mean high sea level) as specified within Zones A1-A30, V2-V4 and AO on Federal Emergency Management Agency Flood Insurance Rate Maps, effective July 15, 1992, such maps hereby incorporated as part of this By-Law and on file with the Town Clerk, the Planning Board and the Inspector of Buildings, shall be approved only subject to the following:

2330 Floodplain District Boundaries and Base Flood Elevation Data
The Floodplain District (“District”) is herein established as an overlay district. The District shall include all special flood hazard areas designed on the Town of Provincetown Flood Insurance Rate Map (FIRM) issued by the Federal Emergency Management Agency (FEMA) for the administration of the National Flood Insurance Program (NFIP) dated July 15, 1992 as Zone A, AE, AH, AO, A1-30, A99, V, V1-30, VE. The FIRM designates the parameters of the100-year base floodplain. The boundaries of the District shall be coincident with the 100-year base flood elevations as shown on the FIRM, Floodway Maps and Flood Insurance Study booklet, all of which are incorporated herein by reference and are on file with the Town Clerk, Planning Board, Building Official, and Conservation Commission.  

2331 Elevation. New construction or substantial improvement (which shall be defined for purposes of this section as any repair, construction or alteration costing 50% or more of the market value of the structure before improvements; or if damaged, before damage occurred) of residential structures shall have the lowest floor (including basement) elevated to not less than Base Flood Elevations. (Substantial improvement is deemed to have occurred when the first alteration of any structural part of the building commences).

New construction or any substantial improvement of nNon-residential structures shall either be similarly elevated or, together with attendant utility and sanitary facilities shall be flood proof (i.e. watertight with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads and effects of buoyancy to or above that level) to not less than the Base Flood Elevations. However, structures such as boathouses that would be functionally impaired by such measures, which because it requires coastal a water level locations, and is which are not continuously used for human occupancy, may be exempted from this requirement, upon the issuance of a Special Permits from the Zoning Board of Appeals.

2332 Mechanical and Utility Equipment. Electrical, heating, ventilation, plumbing and air conditioning equipment and other service facilities shall be designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding.

2333 Start of Construction. [for other than new construction or substantial improvements under Coastal Barrier Resources Act (pub. L.97-348)], includes substantial improvements, and means the date the building permit was issued, provided the actual start of construction, repair, reconstruction, placement, or other improvements was within 180 days of the permit date. The actual start means either the first placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation; or the placement of a manufactured home on a foundation.

Permanent construction does not include land preparation, such as clearing, grading and filling nor does it include the installation of streets and/or walkways; nor does it include excavation for a basement, footings, piers, or foundations or the erection of temporary forms; nor does it include the installation on the property of accessory buildings such as garages or sheds not occupied as dwelling units or not part of the main structure.

2334 Enclosures Below A Structure's Lowest Floor. For all new construction and substantial improvements, fully enclosed areas below the lowest floor that are subject to flooding shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of flood waters.

Designs for meeting this requirement must either be certified by a registered engineer or architect or must meet or exceed the following minimum criteria:

A minimum of two openings having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding shall be provided.

The bottom of all openings shall be no higher than one foot above grade. Openings may be equipped with screens, louvers, or other coverings or devices provided that they permit the automatic entry and exit of floodwaters.

2335 2332 Code References. Any new construction or substantial improvements to be undertaken within said district shall be in accordance with the Massachusetts Uniform Building Code.

2336 2333 Use of Available Flood Data. The Building Inspector shall obtain, review and reasonably utilize any base flood elevation and floodway data available from a Federal, State, or any other source, as a criteria for requiring that new construction, substantial improvements, or other development in Zone A meet all requirements set forth in Section 60.3 (c) (2), (3), (5), and (6) and (d) (3) of the National Flood Insurance Program; Final Rule dated August 25, 1986.

2337 2334 "V" Zones.

No land within areas designated as V (velocity) Zones on the F.I.A. Flood Hazard Rate Maps shall be developed unless such development:

a. is demonstrated by the applicant to be located landward of the reach of the mean high tide through issuance of a special permit by the Zoning Board of Appeals, and;

b. is elevated at or above base flood elevation and adequately anchored to piles as specified in the Commonwealth of Massachusetts State Building Code and as specified in Section 60.3 (c) (4) of NFIP. Any man-made alteration of sand dunes within said designated V Zones which might increase the potential for flood damage shall be prohibited.

2335 Other Use Regulations

1) Within Zones AH and AO on the FIRM, adequate drainage paths shall be provided around structures on slopes, to guide floodwaters around and away from proposed structures.

2) All subdivision proposals shall be designed, based upon pre-construction and post-construction drainage calculations provided by a professional engineer, to assure that:

a. Such proposals minimize flood damage;

b. All public utilities and facilities shall be located and constructed to minimize or eliminate flood damage; and

c. Adequate drainage shall be provided to reduce exposure to flood hazards.

2338 Manufactured Homes.

All manufactured homes to be placed or substantially improved within Zones A1-30, AH and AE shall be elevated on a permanent foundation such that the lowest floor of the manufactured home is at or above the base flood elevation and be securely anchored to an adequately anchored foundation system in accordance with the provisions specified in Section 60.3 (b) (8) of the Criteria for Land Management and Use of the National Flood Insurance Program unless being used as temporary housing following a natural holocaust provided by Section 3, Ch. 40A, M.G.L.

All manufactured homes to be placed or substantially improved in Zones V, VE, and V1-30 must meet the same standards as conventional housing (e.g. meet the provisions at Section 60.3 (e) (3), (4), (5), and (6) of NFIP criteria).

2339 2336 Variances.

Section 2336 Variances to read:

Any variance from the requirements of this section shall be considered a use variance and no use variance shall be issued from this section by the Zoning Board of Appeals. Only the Massachusetts State Building Code Commission may grant a variance from the building code requirements in the floodplain.

A. The Zoning Board of Appeals may grant a variance from these requirements in the case of new structures to be erected on a lot of 1/2 acre or less in size, contiguous to and surrounded by lots with existing structures constructed below the Base Flood Elevation, providing the following are met:

1. A showing of good and sufficient cause;

2. A determination that failure to grant the variance would result in exceptional hardship to the applicant;

3. A determination that the variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense or any conflict with requirements in accordance with Chapter 40A, of the Massachusetts General Laws, and;

4. The Zoning Board of Appeals has notified the applicant for the variance, in writing, that the actuarial rates will increase as the first floor elevation decreases, and that such construction below the Base Flood Elevation Level increases risks to life and property.

B. Upon the granting of such variance, the Zoning Board of Appeals shall require that the Town of Provincetown shall maintain a record of all variance actions, including justification for their issuance, and report such variances issued in its annual report to the Flood Insurance Administrator in accordance with the Department of Housing and Urban Development guidelines.

C. The Zoning Board of Appeals may authorize use variances within the flood area, in accordance with Section 5222 as in any other Zoning district within the Town of Provincetown.

D. The Zoning Board of Appeals may grant a variance for the reconstruction, rehabilitation or restoration of structures listed on the National Register of Historic Places or the State Inventory of Historic Places, without regard to the procedures set forth in Section 3351.

2340 2337 Other Laws.

Where these flood area provisions impose greater or lesser restrictions or requirements than those of other applicable by-laws or regulations, the more restrictive provisions shall apply.

Doug Johnstone

Provincetown Town Clerk

Published: Provincetown Banner July 30, & August 6, 2008

Posted: www.provincetown-ma.gov 7/20/09 11:55 am dj