Town of North Hampton, NH - DISTRICT REGULATIONS

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DISTRICT REGULATIONS

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ARTICLE IV - DISTRICT REGULATIONS

Section 401 Zoning Map

A map entitled "North Hampton Zoning Map" is hereby adopted as part of this Ordinance and incorporated herein. *3/12/68

Section 402 Copies of Zoning Map

Regardless of the existence of other printed copies of the Zoning Map, which from time to time may be made or published, the Official Zoning Map which shall be located in the Office of the Selectmen shall be the final authority as to the current zoning status of the land and water areas, buildings and other structures in the Town. *3/12/68

Section 403 Zoning Districts

The Township is divided into the districts stated in this Ordinance as shown by the district boundaries in the Zoning Map. The districts are: *3/12/68

R-1 High Density District: The high density district is designated for land to be used for smaller single family dwellings with minimum yard space where central water and sewer facilities are available or where the installation of these facilities is feasible. After central water and sewerage facilities to include sewerage treatment disposal plants are installed, accepted by the town, and fully operational, multiple family dwellings are permitted. *3/10/81

R-2 Medium Density District: The medium density district is designated for land which is to be used for medium to large single family dwellings with maximum yard space which will make possible the handling of the individual family's water and sewage disposal needs where central water and municipal facilities are not now available or where the immediate installation of these facilities is now immediately feasible. *3/12/68 This district also includes areas where agriculture and other open land uses are appropriate and natural conditions make the land unsuitable for intensive development. *3/10/2009

I-B/R Industrial-Business/Residential: The Industrial-Business/Residential District is limited to business, light industrial and certain residential uses. By establishing compact areas for such uses, better fire protection, police protection, and utilities may be provided. Performance standards and yard regulations are set forth in this ordinance to insure safe development that is compatible with adjacent uses. The purpose of this district is to encourage business growth and industrial installations in a campus like arrangement in the vicinity of important highways and other key locations. *3/12/85

Wetland Conservation District: The Wetland Conservation District is characterized in Section 409 below. This district consists of wetland areas, as defined in Section 302.18, 40, and 41 above and a buffer zone around all such wetland areas, as defined in Section 409.9 below. The purpose of this District is described in Section 409.1 below, and Permitted and Prohibited Uses in the District are defined in Sections 409.5-8 below. *3/10/2009

Conservation Land District: The Conservation Land District consists of all land area that is permanently protected from subdivision and development by deed restrictions, easements, or other means. No structures are permitted on land within this District, except as provided by the terms of conservation restrictions on land within the District. The purpose of this District is to delineate land that has been preserved for the multiple benefits derived from conservation of land – including, but not limited to increased aquifer recharge, natural resource protection, unfragmented wildlife habitat, opportunities for passive recreation, and preservation of rural character. *3/10/2009

Section 404 District Boundaries

District boundaries shown within the lines of roads, streams and transportation rights of way shall be deemed to follow the center lines. The discontinuance of roads shall not affect the location of such district boundaries. When the Building Inspector cannot definitely determine the location of a district boundary by such centerlines, by the scale or dimensions stated on the Zoning Map, or by the fact that it clearly coincides with a property line, he shall refuse action and the Board of Adjustment, upon appeal, shall interpret the location of the district boundary with reference to the scale of the Zoning Map and the purposes set forth in all relevant provisions of this Ordinance. *3/12/68

Section 405 Permitted Use, Special Exceptions and Prohibited Uses for All Districts *3/9/2004

Pursuant to RSA 674:21 the Town of North Hampton Planning board is hereby authorized and empowered to administer the permitted uses and uses granted by special exception under the following standards.

405.1 Permitted Uses – Industrial-Business/Residential (“I-B/R”) District

North Hampton encourages business development and growth in the I-B/R District because businesses provide jobs, make a significant contribution to the tax base and serve the needs and conveniences of our citizens. Businesses in North Hampton must, however, be compatible with the Town’s environment (particularly given the fact that a number of important aquifers underlie the I-B/R District) as well as the significant number of residences in and adjacent to the I-B/R District, the safety, health, and quiet enjoyment of which must be protected and maintained.

405.1.1 Each such proposed permitted use shall be submitted to the Planning Board for review under the Planning Board’s Site Plan Review Regulations and, in addition, shall be reviewed under the standards of 405.1.2 and 405.1.3.

405.1.2 The Planning Board shall determine whether any such proposed permitted use shall have or cause any unreasonably adverse affect on abutting or neighborhood residential or other uses, with respect to pollution, discharge of harmful or noxious substances, noise, dust, vibration, smoke, odors, light spillage, or other unpleasant, unhealthy or hazardous by-products of the proposed use.

405.1.3 The Planning Board shall determine whether any such proposed permitted use shall have any unreasonably adverse affect upon any water resource, the environment, the health or welfare of any residents, or the quality of life in or adjacent to the I-B/R District.

405.2 Special Exceptions – Standards for the Zoning Board of Adjustment (ZBA) in Apply in Considering Applications for Special Exceptions

405.2.1 In instances where standards for a listed Special Exception are defined in the Zoning Ordinance, the ZBA shall apply those standards.

405.2.2 In instances where specific standards are not defined for a listed Special Exception, the ZBA shall apply the following standards:

405.2.2.1 The Special Exception, if approved, shall not diminish the value of surrounding properties.

405.2.2.2 The Special Exception, if approved, shall not unreasonable adversely affect the public interests, safety, health, or welfare. The ZBA shall consider whether the proposed Special Exception may cause abutting or neighboring lots, or the I-B/R District generally, to be subjected to any form of pollution or discharge of harmful or noxious substances, noise, dust, vibration, smoke, odors, light spillage, or other unpleasant, unhealthy or hazardous by-products of the proposed business which threatens to adversely and unreasonably affect the environment, welfare of residents, or quality of life in and adjacent to the I-B/R District.

405.2.3 Notwithstanding approval by the ZBA of an application for a Special Exception, in cases where a site plan is normally required, the Planning Board shall independently review a Site Plan for the proposed use.

405.3 Prohibited Uses for All Districts

The types of uses designated as “Permitted Uses” and “Special Exceptions” in the following tables are necessarily broad and general in many cases. The Planning Board will consider specific applications for Site Plan Review or Changes of Use as described in 405.1 and 405.2.

Notwithstanding that each of the following uses might be deemed a specific instance of one or more Permitted Use and Special Exception listed in the tables, they are considered inconsistent with goals for development of North Hampton as expressed in the Master Plan, beyond the capacity of the Town’s infrastructure, and incompatible with criteria noted in 405.1 and 405.2. They are, therefore, prohibited in all districts in North Hampton.

Prohibited Uses

Commercial animal husbandry facilities, including but not limited to feed lots, slaughterhouses, breeding facilities, egg farms, and hog, chicken, turkey and other domestic fowl production facilities.

“Commercial animal husbandry facilities” does not include the following: veterinary clinics, kennels and other facilities for boarding domesticated animals, equestrian stables for recreational riding, or horse-breeding stables that stable 20 or fewer animals.

Large scale distribution and logistics facilities, including but not limited to facilities like those operated by trucking firms, by package and mail carriers such as FedEx and United Parcel Service, by major retail chains such as Wal-Mart, K Mart, and Sears and by automotive manufacturers for parts distribution.

Storage of raw materials for processing and the processing of raw materials for distribution or retail sale, including but not limited to stockpiling or storage of dirt and debris for sifting and screening in the production of loam, storage or processing of manure or other materials for production of fertilizer, stockpiling and processing materials for concrete or asphalt production.

R-1 HIGH DENSITY DISTRICT:

Permitted Uses	Special Exceptions
1. Agriculture	1. Cemeteries
2. Single-Family Dwellings	2. Home Occupations
3. Public and Parochial Schools	3. Non-Profit-Recreational Uses
4. Public Parks and Playgrounds	4. Nursery Schools
5. Churches	5. Public Utility Buildings
6. Essential Services	6. Water Recreation & Water Storage
*7. Duplexes 3/10/92**	7. Municipal Buildings & Libraries
*8. Manufactured Housing on Individually owned lots, as defined in Section 302-36 of the Zoning Oridnance 3/8/94**	8. Hospitals and Clinics for Humans or Animals
	9. Greenhouses
	10. Riding Stables
	11. Private Clubs
	*12. Accessory Apartments 3/13/90**
	13. Family Day Care *3/13/90

R-2 MEDIUM DENSITY DISTRICT:

Permitted Uses	Special Exceptions
1. Agriculture	1. Cemeteries
2. Single-Family Dwellings	2. Home Occupations
3. Public and Parochial Schools	3. Non-Profit-Recreational Uses
4. Public Parks and Playgrounds	4. Nursery Schools
5. Churches	5. Public Utility Buildings
6. Essential Services	6. Water Recreation & Water Storage
*7. Duplexes 3/10/92**	7. Municipal Buildings & Libraries
*8. Manufactured Housing on Individually owned lots, as defined in Section 302-36 of the Zoning Ordinance 3/8/94**	8. Hospitals and Clinics for Humans or Animals
	9. Greenhouses
	10. Riding Stables
	11. Private Clubs
	*12. Accessory Apartments 3/13/90**
	13. Family Day Care *3/13/90

INDUSTRIAL-BUSINESS/RESIDENTIAL DISTRICT (I-B/R):

Permitted Uses	Special Exceptions
1. Agriculture	1. Water Recreation & Storage
2. Motels	2. Municipal Buildings & Libraries
3. Eating & Drinking Establishments	*3. Multiple-Family Dwelling 3/6/73**
4. Research & Testing Laboratories	*4. Light Manufacturing 3/6/73**
5. Offices	*5. Public & Private Recreational Facilities 3/6/73**
6. Hospitals and Clinics for Humans or Animals	6. Planned Unit Industrial & Business Projects
*7. Public Utility Buildings 3/6/73**	*7. Accessory Apartments 3/13/90**
*8. Accredited Commercial Schools 3/9/82**	*8. Family Day Care 3/13/90**
*9. Essential Services 3/13/90**	9. Home Occupations
*10. Retail Uses 3/6/73**	*10. Motor-Vehicle Refueling Facilities 3/9/04**
*11. Wholesale Uses 3/6/73**	*11. Motor-Vehicle Service Facilities, including without limitation lubrication centers, repair shops, detail and washing facilities, body shops, and tire and battery shops 3/9/04**
*12. Accessory Uses 3/6/73**
13. Single Family Dwellings
*14. Group Day Care 3/13/90**
*15. Duplexes 3/10/92**
*16. Manufactured Housing on Individually owned lots, as defined in Section 302-36 of the Zoning Ordinance 3/8/94**
17. Manufactured Housing Parks *3/13/84

WETLANDS CONSERVATION DISTRICT:

Permitted Uses and Prohibited Uses in the Wetlands Conservation District are specified in Sections 409.5-8 below.

Special Exceptions in the Wetlands Conservation District are provided for as specified in Section 409.12 below. *3/10/2009

CONSERVATION LAND DISTRICT:

Permitted Uses and Prohibited Uses are specified by conservation restrictions on each of the parcels in this District.

Residential use is not permitted on land in the District, and because restrictions on land in the District are a matter of contractual agreements, rather than zoning reestrictions, neither Special Exceptions nor Variances are available. *3/10/2009

Section 406 Yard and Lot Requirements [Where Structures Are Permitted]:

District	R1	R2	I-B/R
Minimum Lot Area (square Feet)	87,120	87,120	87,120
Minimum Fronatge (Feet)	175	175	250
Minimum Depth, Front Yard (Feet)	30	35	50
Minimum Depth, Side Yard & Minimum Depth, Rear Yard, Dwellings & Commercial Buildings (feet)	25	30	35
Minimum Depth, Side Yard & Minimum Depth, Rear Yard, Unattached, Accessory Buildings (Feet) *3/6/73	15	15	35

406.1 Lots which abut on more than one street shall provide the required front yards along every street. *3/12/68

406.2

406.2.1 Any lot of record existing at the effective date of this ordinance shall not be merged with any adjoining lot other than by a lot merger as authorized by RSA 674:39-a. Lots merged by municipal action for assessing or taxation purposes prior to the effective date of this ordinance and without the consent of the property owner shall not be deemed to have been merged for the purposes of this Zoning Ordinance, the Town’s Subdivision Regulations, or Site Plan Review Regulations. *3/10/2009

406.2.2 Any lot of record existing on March 5, 1974 may be used for the erection of a structure for a purpose that conforms to the use regulations of the district in which it is located even though the lot does not meet the minimum area requirements for said district. While one acre of contiguous upland is not required before a building permit may be issued for said lot, all such structures must, however, have 100-feet of frontage, and meet setback requirements for said district, including wetland buffers as provided in Section 409.9, and setbacks for a state approved septic system plan, and for a well for potable water where public water service is not available.*3/10/2009

406.3 Industrial-Business structures or uses shall not be located or conducted closer to any lot line of any other lot in any "R" District than 35 feet. *3/5/74

406.4

406.4.1 Duplex Requirements: The minimum lot size for a duplex shall be 100,000 square feet and the lot shall contain a minimum of 60,000 square feet of non-wetland area. No additional frontage is re¬quired, other than that specified in Section 406. The maximum number of bedrooms allowed per duplex is six. Each dwelling unit shall have a minimum living area of 720 square feet. An adequate septic system built to standards of the N.H. Water Supply and Pollution Control Division must be provided. *3/10/92

406.4.2 Multiple Dwelling Lot and Yard Requirements: A Multiple Dwelling shall be located only in the I-B Industrial Business District and shall be constructed only on a lot which meets all the lot and yard requirements for the location of structures in the I-B Industrial Business District as set forth in Section 406 through Section 406.3. In addition, a multiple dwelling building lot must contain two acres of land for the first family unit, and for each addition¬al family unit, there shall be an additional one hundred (100) feet frontage and an additional acre of land. *3/9/82

406.5 A lot in the I-B/R District that is presently utilized for business purposes shall not be used for residential purposes. Any existing undeveloped lot may be used for either a business or residential purpose, but not both. *3/12/85

406.6 No building shall be constructed on any lot that does not have frontage on a street that has been accepted by the Town of North Hampton. For the purpose of this paragraph, a street that is located in the Town of North Hampton and is under construction may be considered at the discretion of the Building Inspector to be accepted only for the issuance of building permits thereon. *3/12/85

406.7 Any newly created street must at least connect with an accepted street in the Town of North Hampton. *3/12/85

406.8 Industrial-Business/Residential lots located in the IB zone shall include a landscaped buffer area around the perimeter of the lot. This area will be a minimum of ten feet wide along the entire property line. This landscaped area may not be used for structures, drainage structures, parking or access except where access is required and approved. *3/10/87

406.9 A lot of record in any zoning district in existence before March 10, 1992, may be subdivided to allow one backlot under the following condi-tions:

406.9.1 The existing lot of record shall be five acres or more in size and have a continuous frontage of at least two hundred and fifteen feet (215').

406.9.2 A backlot subdivision requires Planning Board approval and only one backlot shall be permitted per lot of record.

406.9.3 A backlot shall have a minimum frontage of forty feet (40') and the remaining lot or any future lots shall have the minimum frontage required for the zoning district. The width of the backlot shall not be less than forty feet (40') within two hundred feet (200') of the front lot line.

406.9.4 A backlot shall have a minimum lot size, which is 50 percent greater than that required for the remaining lot or lots in the zoning district. *3/10/92

406.9.5 Structures or the display of merchandise (including motor vehicles) shall be permitted to be located on a backlot only in areas where the width of the lot, as measured parallel to the front lot line, is equal or greater than the minimum frontage requirement of the zoning district in which it is located. For the purpose of this section, signs shall not be considered structures. *3/14/95

Section 407 Height Regulations

No structure shall exceed 35 feet in height above average ground level unless approved by the Board of Adjustment. The Board may authorize a variance to the height regulations in any district if:

407.1 All front, side and rear yard depths are increased one foot for each additional foot of height; and fire protection is adequately provided for; or

407.2 The structure is any of the following and does not constitute a hazard to an established airport; television and radio towers, church spires, belfries, monuments, tanks, water and fire towers, ornamental towers and spires, chimneys, elevator bulkheads, smokestacks, conveyors, and flagpoles. *3/12/68

Section 408 Building Area for Dwelling Units

Every dwelling unit shall have a minimum ground floor or lower living area of 720 square feet exclusive of porches, garages, carports, barns, sheds, unwalled areas and any similar area. This section shall apply to newly constructed buildings or units converted from other uses or units that are moved. *3/2/76

Section 409 Wetland Conservation Areas

409.1 Purpose: In the interest of public health, convenience, safety and welfare, the regulations of this district are intended to guide the use of areas of land with extended periods of high water tables, and to accomplish the following purposes:

A. To control the development of structures and land uses on naturally occurring wetlands, which would contribute to pollution of surface and groundwater by any means.

B. To prevent the destruction of natural wetlands, which provide flood protection, recharge the groundwater supply, and the augmentation of stream flow during dry periods.

C. To prevent unnecessary or excessive expense to the Town related to the provision and maintenance of essential services and utilities, which arise because of unwise use of wetlands.

D. To encourage those uses that can appropriately and safely be located in wetland areas.

E. To preserve wetlands for ecological reasons including, but not limited to, those cited in RSA 482-A.

F. To preserve and enhance those aesthetic values associated with the Wetlands of this Town.

G. To provide a single and consistent approach for identifying and delineating wetlands based on the most advanced professional standards and scientific analysis.

409.2 Definition of District: The Wetlands Conservation District comprises all of the following areas within the Town of North Hampton:

A. Tidal lands as defined in section 302, paragraph 40 herein. *3/08/2005

B. Wetlands as defined in section 302, paragraph 41 herein. *3/08/2005

C. Isolated, non-bordering wetlands as defined in Section 302, paragraph 18 herein.

409.3 Wetlands Map: The Wetlands map of North Hampton prepared by Normandeau Associates in 1986 as part of the New Hampshire Coastal Wetlands Mapping Program shall be used as a guide in the preliminary identification of jurisdictional wetlands under this ordinance. The boundaries of the Wetlands Conservation District shall be identified by this North Hampton Wetlands Map as revised from time to time.

A. In the event that an area is alleged to be incorrectly designated on the Wetlands Map, the person aggrieved by such designation may request a field inspection by the building inspector and the chairperson of the Conservation Commission (or their representa¬tive). If a determination is made by field inspection or by a Certified Wetlands Scientist that the three criteria for Wetland delineation are not present and that the area in question is incorrectly designated a wetland, the Conservation Commission shall report this change to the Planning Board, who will arrange to update the Wetlands map accordingly.

B. If, after the field inspection, the Wetlands designation is not changed, the person aggrieved by such designation may, by written petition, appeal the designation to the Planning Board.

C. Any resident of North Hampton may, by written petition, propose to the Planning Board that additional areas be included within the Wetlands Conservation District. After informing the owners of the property proposed for inclusion in the Wetlands Conservation District and the owners of abutting property, the Planning Board shall place the proposal on the agenda of its next regularly scheduled public hearing. Before additional areas can be included within the Wetlands Conservation District, the North Hampton resident proposing such inclusion shall provide evidence, satisfac¬tory to the Planning Board, that the subject land meets the three mandatory technical criteria for Wetlands delineation identified in Section 302, paragraph 31 herein.

409.4 Appeal of Wetlands Boundaries: In the event of a petition pursuant to section 409.3 B. or 409.3 C., the North Hampton Planning Board may call upon the services of an independent qualified wetlands scientist to examine said area and report findings to the Planning Board for their determination of the boundary. Qualified wetland scientist shall mean a person who is qualified in soil classification and wetlands delineation and who is recommended or approved by the State of New Hampshire. The costs to the Town of such appeal shall be borne by the petitioner.

409.5 Permitted Uses in the Wetlands Conservation District: The following uses shall be permitted within the Wetlands Conservation District:

A. Any use otherwise permitted by the Zoning Ordinance, that does not include erection of a structure and does not alter the surface configuration of the land by the addition of fill or by dredging.

B. Any agriculture that will not cause soil erosion or groundwater contamination by pesticides or other hazardous materials.

C. Wildlife refuge and habitat management.

D. Parks and such recreation purposes as are consistent with the purpose and intentions of this section.

E. Conservation areas and nature trails.

409.6 Additional Permitted Uses in Tidal Lands: The following additional uses shall be permitted in Tidal Lands: *3/08/2005

A. Cutting of dead or dying trees of any size.

B. Cutting of live trees with a diameter of six inches or greater, measured 4 1/2 feet above the ground, provided that such partial cutting is limited to 30% of their total pre-harvest basal area. Selection of trees for such partial cutting shall be done with the consultation of the Rockingham County Forester and the approval of the Planning Board. Partial cutting shall be done in such a way that a well distributed stand of healthy growing trees remains.

C. The erection of fences, footbridges, catwalks and wharves provided such structures are built on posts or pilings and permit the unobstructed flow of the tide and preserve the natural contour of the marshes.

409.7 Additional Permitted Uses in Wetlands and Isolated Non-bordering Wetlands: The following additional uses shall be permitted in Wetlands and Isolated Non-bordering Wetlands: *3/08/2005

A. Forestry and tree farming which does not involve clear cutting;

B. Water impoundments and construction of wells for on site water supply;

C. Drainage ways, streams, creeks, or other paths of normal runoff water;

D. Open space permitted by the subdivision regulations and other sections of the ordinance;

E. Fill involving less than 3000 square feet of surface area.

409.8 Prohibited Uses in the Wetlands Conservation District:

The following uses are prohibited within the Wetlands Conservation District or within 75’ of the district:

A. Septic systems, leach fields, or on site disposal systems.

B. Storage of gasoline, fuel oil, pesticides, hazardous agricultural and other materials or roadsalt stockpiles.

409.9 Buffer Zone Restrictions: The buffer zone setback requirement from Tidal Lands and Wetlands is 100’. For the purposes of this section 409.9 “inland wetlands” shall not include a vegetated swale, roadside ditch, or other drainage way; a sedimentation/detention basin or an agricultural/irrigation pond. *3/11/2003, 3/08/2005

A. Undeveloped lots of record

1. Undeveloped lots of record existing as of March 2003 or any lot created subsequently: No structure or impermeable surface shall be permitted within 100’ of Tidal Lands or within 100’ of Wetlands on any lot of record existing as of March 2003 or on any lot created subsequently. *3/08/2005

2. Undeveloped lots of record existing prior to March 2003: If the imposition of 100’ tidal and/or freshwater wetland buffer setbacks causes the buildable upland acreage (this is, land that is not in the wetlands buffer zone) to be less than 16,000 square feet, the prior wetlands buffer zone setback requirements of 50’ for Wetlands and 75’ for Tidal Wetlands shall apply. *3/08/2005

B. Developed lots of record: No structure or impermeable surface shall be permitted within 100’ of Tidal Wetlands or within 100’ of Wetlands on any developed lot of record existing as of March 2003. *3/08/2005

1. Developed residential lots of record existing prior to March 2003: If the imposition of 100’ Tidal Lands and/or inland wetland buffer setbacks causes the buildable upland acreage (that is, land that is not in the buffer zone) to be less than 16,000 square feet, the prior buffer zone setback requirements of 50’ for Wetlands and 75’ for Tidal Lands shall apply. *3/08/2005

2. Notwithstanding other provisions of this section 409.9 of the Zoning Ordinance, the construction of additions to and/or extensions of existing buildings or structures shall be permitted within the 100’ wetlands buffer zone provided that:

a. The dwelling or structure to be expanded existed lawfully prior to the effective date of this section 409.9 of the Zoning Ordinance (March 2003) or was constructed subject to a validly issued building permit.

i. The proposed construction conforms to all other applicable ordinances and regulations of the Town of North Hampton.

ii. The footprint of any proposed new construction within the buffer does not exceed the greater of 1200 square feet or 25% of the area of the footprint of the existing heated structure within the buffer which existed prior to the effective date of this Ordinance.

iii. Any proposed new construction of an addition or extension shall not intrude further into the wetland buffer setback than the current principal heated structure of which it is a part.

409.10 Conditional Use Permits: A conditional use permit may be granted by the Planning Board for fill in excess of 3000 square feet of surface area, for the construction of roads and other access ways, pipelines, power lines, and other transmission lines within the district or the buffer zone, provided that all of the following conditions are found to exist:

A. The proposed construction is essential to the productive use of land not within the wetlands;

B. Design and construction methods will be such as to minimize detrimental impact upon the wetland site and will include restora¬tion of the site as nearly as possible to its original grade and condition;

C. No alternative, which does not cross a wetland or has less detrimental impact on the wetland is feasible;

D. All other necessary permits have been obtained.

409.11 Conditional Use Permit for Overburden Ground Water Pumping:

A conditional use permit may be granted by the Planning Board for overburden ground water pumping at a rate in excess of 20,000 gallons per day, provided that such pumping is conducted in such manner as to assure no net loss of wetlands within the adjacent Wetlands Conservation District.

409.12 Special Exceptions Granted by the Zoning Board of Adjustment:

Upon application to the Board of Adjustment, a special exception may be granted to permit the erection of a new structure on vacant lots of record or the expansion of an existing structure located within the Wetlands Conservation District, or any buffer zones, provided that all of the following conditions are found to exist:

A. The lot upon which an exception is sought was an official lot of record, as recorded in the Rockingham County Registry of Deeds prior to March 8, 1988.

B. The new structure or expansion is not otherwise prohibited under the zoning ordinance.

C. The use for which the exception is sought cannot feasibly be carried out on a portion or portions of the lot, which are outside the Wetlands Conservation District or the buffer zone.

D. Due to the provisions of the Wetlands Conservation District, no reasonable and economically viable use of the lot can be made without the exception.

E. The design and construction of the proposed use will, to the extent practicable, be undertaken in such a manner as to be consistent with the purposes and spirit of this ordinance and shall not diminish the natural resource values of affected wetlands in any appreciable way. March 10. 2009

409.13 Other Permits:

Nothing in the above ordinance shall preclude the need to obtain any other necessary local, state or federal government permits.

Section 410 Approval of Septic Systems

A permit for new construction in any part of North Hampton will not be issued until the building inspector is provided with a septic system and leaching field site plan, approved by the New Hampshire Water Supply and Pollution Control Commission, and all local requirements have been met.

Section 411 Wetlands – Minimum Lot Area

Wetlands excluding bodies of water may be used to satisfy minimum lot area and setback requirements provided that, that portion which is wetland does not exceed fifty (50) percent of the minimum required lot area and provided that the remaining lot area is sufficient in size and configura¬tion to adequately accommodate all required utilities. *3/13/79 For construction of a dwelling unit on lots of two acres or more, there shall be one contiguous acre of non-wetland soils for the site of a house. *3/12/91

Section 412 Filling of Non-Wet Land

In order that the Town may protect its ecology, water supply and natural aesthetics, the Planning Board shall use discretion in giving permits to fill any land. No land shall be filled without the consent of the Planning Board if the total amount of fill to be added is more than Five-Thousand (5000) cubic yards in volume. *3/13/79

Section 413 Critical and Unique Area Regulations

The Planning Board shall adopt Regula¬tions and Standards that will protect areas identified on the natural Resource Map having severe limitations to development or that are unique to the Town of North Hampton or the State of New Hampshire and shall administer such regulations under the "Subdivision Regulations." *3/10/81

413.1 Historical Sites: The purpose of this section is to preserve existing antiquities so that future generations may gain an appreciation and understand¬ing of the Town's past. These antiques are hereafter designated as Historical Sites. A Historical Site is an area, a location, or an object, which has been registered and recorded as having historical significance. Examples of Historical Sites include, but are not limited to, buildings, cemeteries and monuments, etc. Due to the limited resources of the Town, property owners are encouraged to maintain restore, protect and identify Historical Sites. *3/10/81

413.2 The Planning Board shall appoint an Heritage Commission in accordance with RSA 674:44-a and RSA 674:44-b, which shall assist in the identification and recording of the above mentioned Historic Sites and shall assume the powers and duties of the Historic District Commission which it replaces. Said Heritage Commission shall consist of five members appointed by the Planning Board with the approval of the Selectmen. *3/11/97

Section 414 Water Resources and Aquifer Protection

414.1 Statement of Policy. It shall be the policy of the Town of North Hampton to protect the quality of all water supplies within Town boundaries, especially on or near known aquifers and primary recharge areas.

414.2 Definitions. For the purposes of this section, toxic or hazardous materials shall be defined as 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 were dis¬charged to land or waters of this town. Toxic or hazardous materials include without limitation all volatile organic chemi¬cals, petroleum products, heavy metals, radioactive or infectious waste, acid and alkalies, and include products such as pesti¬cides, herbicides, solvents and thinners and such other sub¬stances as defined in New Hampshire Water Supply and Pollution Control rules (He-P 1901.03(v)) and in the 40 CFR 261, as amend¬ed, whichever is more restrictive.

414.3 Use Regulation.

A. In all zoning districts, all runoff from impervious surfaces shall be recharged on the site and only minimum use shall be made of de-icing chemicals on all private and public roads and parking lots. Compounds used shall be free of sodium and chloride to the maximum extent possible.

B. Prohibited Uses. The following uses are prohibited within the Town of North Hampton:

1. The installation of underground tanks for storage of oil and petroleum products for residential purposes;

2. The installation of underground tanks for storage of oil and petroleum products for non-residential purposes, unless that tank is subject to regula¬tion under New Hampshire Code of Administrative Rules, Part Ws 411;

3. Disposal of liquid or leachable waste (except from residen¬tial sub-surface disposal systems, or State approved commer¬cial or industri¬al systems which discharge human waste only);

4. Outdoor unenclosed or uncovered storage of road salt and other de-icing chemicals;

5. Dumping of snow from outside of town boundaries if it contains road salt or de-icing chemicals;

6. Injection wells that dispose of waste in the ground;

7. Disposal of solid waste other than brush and other wood products.

C. Conditional Uses. The following uses are presumed to be toxic or hazardous to ground water quality and will be permitted only if and to the extent that anyone proposing to engage in any such activity can demonstrate the contrary to the Planning Board. These uses, if allowed in the underlying zoning districts, are permitted only after a Condi¬tional Use Permit is granted by the North Hampton Planning Board.

1. Junk and salvage lots;

2. Chemical and bacteriological laboratory opera¬tion;

3. Dry Cleaning;

4. Electronic circuit manufacturing;

5. Metal plating, finishing, and polishing;

6. Motor and machinery service and assembly;

7. Painting, wood preserving and furniture strip¬ping;

8. Photographic processing;

9. Printing;

10. On-site handling, disposal, discharge, stor¬age, processing or recycling of toxic or hazardous materi¬als including bulk storage of toxic materials for resale or distribution (except for routine delivery of heating oil);

11. Industrial processes which discharge contact type process waters on site;

12. Commercial animal feed lots.

D. Standards and Conditions. After the requirement of Section 414.3 (c) have been met, the Planning Board may grant a Conditional Use Permit for any of the above uses, only after written findings of fact are made that all of the following are true:

1. The proposed user will make use of the best feasible technology to prevent any dangerous or hazardous impacts resulting from the proposed use, including but not necessarily limited to such impacts as the discharge or loss of hazardous materials resulting from cor¬rosion, evaporation, accidental damage, spillage or vandalism.

2. The proposed use(s) will not detrimentally affect the quality of the water either by directly contributing to pollution or by increasing the long-term susceptibility of the water to potent¬ial pollutants.

3. The proposed use will not cause a significant reduction in the long-term volume or quality of water contained in the aquifers or in the storage capacity of any known aquifers over which the pro¬posed use may be located.

414.4 Planning Board Authority.

The Planning Board may require that the applicant provide data or reports prepared by a profes¬sional consultant qualified to assess any potential damage to ground water that may result from the proposed use. At the applicant's expense, the planning board may engage such profes¬sional assistance, as it requires to evaluate adequately such reports and to evaluate, in general, the proposed use in light of the above criteria. The planning board may attach to such permit any reasonable conditions for construction and/or operation, including inspections by the Building inspector, or any other agent designated by the Planning Board, to assure continued compliance with the conditions under which the approval was granted. A fee for inspection shall be charged to the owner according to a fee schedule determined by the Selectmen. *3/13/90

414.5 AQUIFER PROTECTION DISTRICT ORDINANCE 3/14/2006

Background: This Aquifer Protection District Ordinance recognizes and responds to the importance of the complexity of adequately protecting our drinking water. It also recognizes the inter-related nature of our ecological systems of wetlands, uplands and fresh, tidal and salt waters.

An aquifer is any geological formation in bedrock or sand and gravel that can yield a useable amount of water. North Hampton is fortunate in having three (3) major aquifers in sand and gravel, technically known as stratified drift aquifers, of which two (2) can be utilized for water, in addition to bedrock wells. Our sand and gravel aquifers are shallow, some only fifty (50) to sixty (60) feet beneath the surface, while our bedrock aquifers are hundreds of feet deep. The majority of residential wells in town are drilled in bedrock.

The primary water company in this area, the Aquarion Water Company, operates a total of sixteen (16) wells of which ten (10) are located in North Hampton; six (6) are bedrock wells and four (4) are in sand and gravel aquifers. The shallow sand and gravel aquifer wells yield markedly higher pumping volumes compared to the bedrock wells whose volume is limited by the number of fissures supplying water.

Our sand and gravel aquifers are also more subject to contamination from residential and industrial properties because of their shallow depth. The Coakley Landfill Superfund Site, part of which is located in North Hampton, is an example of groundwater pollution that contaminated residential wells in North Hampton.

Currently both types of Aquarion Water Company wells are located in the Mill Road and Winnicut Road aquifers. Our third aquifer in the Post Road/ Cherry Road area has not been drilled due to the proximity of the Coakley Landfill Superfund Site and the inter-related nature of our aquifers. Our two sand and gravel aquifers are currently being pumped at capacity. Future water needs must be supplied by additional bedrock wells in town or be supplied by neighboring towns within the Aquarion water systems or other water companies.

414.5.A Authority and Purpose

Pursuant to RSA 674:16-21, the Town of North Hampton adopts an Aquifer Protection District and accompanying regulations in order to protect, preserve, and maintain potential groundwater supplies and related groundwater recharge areas identified by the Town. The objectives of the Aquifer Protection District are:

1. To protect the public health and general welfare of the citizens of North Hampton.

2. To prevent development and land use practices that would contaminate or reduce the recharge to the identified aquifers and all inter-related waters in town.

3. To assure the availability of public and private water supplies for the present and the future growth of the Town in accordance with the Master Plan.

4. To encourage uses that can appropriately and safely be located in the aquifer recharge areas.

5. To heighten awareness of the need for annual review of the Coakley Site monitoring wells and the testing of private wells.

414.5.B Administration

1. General: The provision of the Aquifer Protection District shall be administered by the Planning Board. All development proposals (within this District), other than single or two-family residential construction not involving the subdivision of land, shall be subject to subdivision and/or site plan review and approval in accordance with Planning Board rules and regulations and this Aquifer Protection District Ordinance. Such review and approval shall precede the issuance of any building permit by the Town.

2. Enforcement: The Select Board shall be responsible for the enforcement of the provisions and conditions of the Aquifer Protection District, pursuant to the provisions of section 414.5.

414.5.C Definitions:

1. Animal Feedlot, Permitted: A commercial agricultural establishment where concentration of animals are confined and fed simultaneously. Animal feedlots are prohibited by section 405.3 of the zoning ordinance.

2. Aquifer: For the purpose of this Ordinance, aquifer means a geologic formation, group of formations, or part of a formation that is capable of yielding sustainable quantities of groundwater usable for municipal or private water supplies.

3. Dwelling Unit: A room or group of rooms located within a dwelling and forming a single, habitable unit with facilities which are used or intended to be used for living, sleeping, cooking and eating.

4. Groundwater: Subsurface water that occurs beneath the water table in soil and geological formations.

5. Groundwater Recharge: The infiltration of precipitation through surface soil materials into groundwater. Recharge may also occur from surface water, including lakes, streams and wetlands.

6. Hydrogeologist: A person who by education and experiences is able to quantitatively analyze and interpret hydrology and is a licensed geologist, specializing in hydrology, in the State of New Hampshire according to Env-Ws 388.06(b).

7. Impervious to Groundwater Infiltration: The addition of pavement, cement or other ground cover that prevents water from flowing through to subsoil layers.

8. Leachable Wastes: Waste materials, including, but not limited to, solid wastes, sludge and agricultural wastes that are capable of releasing contaminants to the surrounding environment.

9. Mining of Land: The removal of geological materials such as topsoil, sand and gravel, metallic ores, or bedrock.

10. Non-Conforming Use: Use of the land, building or premise which is not a use permitted by the provisions of this ordinance for the Aquifer Protection District in which such land, building or premise is situated.

11. Non-Municipal Well: Any well not owned and operated by the Town of North Hampton or its agent.

12. Recharge Area: The land surface areas from which water reaching a location or region originates.

13. Sludge: Residual materials produced by the sewage treatment process.

14. Solid Waste: Any discarded or abandoned material including refuse, or sludge, as defined by New Hampshire Solid Waste Rules Env-Wm 101-103 & 2100-3700. Solid waste includes solid, liquid, semi-solid, or contained gaseous waste material resulting from residential, industrial, commercial, mining and agricultural operations and from community activities.

15. Structure: Anything constructed or erected, except a boundary wall or fence, the use of which requires location on the ground or attachment to something on the ground.

16. Toxic or Hazardous Materials: 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: volatile organic chemicals, petroleum products and additives such as MtBE, heavy metals, and radioactive materials as defined in Groundwater Management and Groundwater Release Detection Permits, Env-Wm 1403.05. Wastes generated by, but not limited to, the following commercial activities are presumed to be toxic or hazardous, unless and except to the extent that anyone engaging in such activity can demonstrate the contrary to the satisfaction of the Planning Board.

17. Airplane, boat and motor vehicle service and repair

18. Chemical and bacteriological laboratory operation

19. Dry cleaning

20. Electronic circuit manufacturing

21. Junk and salvage lots

22. Metal plating, finishing and polishing

23. Motor and machinery service and assembly

24. On site handling, disposal, discharge, storage, processing or recycling of toxic or hazardous materials including bulk storage of toxic materials for resale or distribution (except for routine delivery of heating oils)

25. Paint production and painting, paint stripping, wood preserving and furniture

26. Pesticide and herbicide production

27. Photographic processing

28. Printing

29. Transmissivity: A measure of the rate at which water will move through an aquifer. Transmissivity incorporates the hydraulic conductivity of the aquifer, aquifer thickness, water temperature and fluid properties to describe water movement.

414.5.D District Boundaries

1. Location: The extent of the Aquifer Protection District shall be shown on the Aquifer Protection District Map, and subsequent updates, shall be the outermost edge of the aquifers that measure in transmissivity greater than 1,000 feet squared per day. This map is to be used in conjunction with the tax map and/or other maps of the Town as an overlay district.

2. Recharge Areas:

a. The indirect recharge areas are those areas that contribute to groundwater recharge of the aquifer from outside the aquifer boundaries.

b. When development is proposed in indirect recharge areas which are tributary to the Aquifer Protection District, such as areas including a tributary stream, or on slopes adjacent to the Aquifer Protection District, the Planning Board may hire, at the developer’s expense, a qualified hydrogeologist to assess the potential impact on groundwater quality and recharge rates of the aquifer from such development.

3. Appeals:

a. Where the bounds of the identified aquifer or recharge area, as delineated, are in doubt or in dispute, any landowner aggrieved by delineation may appeal the boundary location to the Planning Board. Upon receipt of such appeal, the aggrieved party shall hire its own NH licensed geologist specializing in hydrogeology to re-delineate the boundary and the Planning Board may have their professional hydrogeologist review and comment on the re-delineation. The review shall be paid by the aggrieved party. The following elements required in this review but not limited to:

i. A detailed topographic layout of the subdivision and/or area to be developed, prepared by a registered land surveyor.

ii. The boundaries of the aquifer protection districts shall be the borders of stratified drift aquifers of 1,000 to 2,000 square feet per day transmissivity surrounding those aquifers whose transmissivity is greater than 2,000 square feet per day.

iii. Any additional mapping, hydrogeologic reports or information which becomes available, as a result of recent or on-going scientific investigation of the location and extent of aquifers, performed by the US Geological Survey, NH State agencies or boards, or the Town of North Hampton or the agents of any of the above.

b. The Planning Board may, based upon the finding of paragraph 414.5.D.3.a above, adjust the boundary or area designation of the Aquifer Protection District or reduce or expand the area so designated so as to more correctly define the location and extent of the aquifer on a site-specific, case-by-case basis.

c. The Planning Board shall reserve the right to withhold action on such plat or plan pending the results of an on-site and/or other investigation by that Board or its appointed agent and shall act to approve or disapprove or such further time as deemed necessary and as provided for by NH State statute.

414.5.E Use Regulations

1. Minimum Lot Size:

a. The minimum lot size within the Aquifer Protection District for each single-family dwelling unit if a residential use, or each principle building if a non-residential use, shall be two (2) acres, or 87,120 square feet, of which a minimum of one (1) acre, or 43,560 square feet, shall be non-wetland area.

b. The minimum lot size within the Aquifer Protection District for each duplex dwelling unit for residential use or other use shall be two point three (2.3) acres, or 100,000 square feet, of which a minimum of 60,000 square feet, shall be non-wetland area.

2. Maximum Site Coverage:

a. Within the Aquifer Protection District, no more than twenty percent(20%) of a single lot or building site may be rendered impervious groundwater infiltration. To the extent feasible, all runoff impervious surfaces shall be recharged to the aquifer on-site. Recharge impoundments shall have vegetative cover for surface treatment and infiltration.

b. Maximum impervious site coverage may exceed twenty percent (20%) provided that the following performances standards are met and the plans are approved by the Planning Board or its designated agent. The developer shall submit a stormwater drainage plan. Such a plan shall provide for the retention and percolation of the runoff from a one hundred (100) year storm event, such that the post-development discharge volume to the aquifer is, at a minimum, equal to the pre-development discharge to the aquifer. Furthermore, the stormwater drainage plan shall provide for the removal of oil and gasoline from parking lot runoff by the use of treatment swales, oil/gas separators or other devices, prior to retention and percolation of the run-off.

3. Hydrogeologic Study:

a. For development proposals within the Aquifer Protection District, a hydrogeologic study shall be performed by a NH licensed geologist specializing in hydrogeology. This study shall evaluate the development’s impact on groundwater within both the parcel to be developed and the surrounding land. Beyond the property lines of said site groundwater quality shall not be degraded by polluting substances such as, but not limited to, nitrates, phosphates, bacteria, etc. Larger lots may be required based on the findings of said study.

b. This information will be required for proposed subdivisions of four lots or greater. For subdivisions of three lots or less the Planning Board will determine, on a case-by-case basis, the need for a hydrogeologic study. Particularly sensitive sites may include areas that have septic systems in close proximity to wells, including public supply wells, irrigation wells, residential wells, and monitoring wells, or may contain excessively drained soils or steep slopes.

4. Prohibited Uses: The following uses are prohibited in the Aquifer Protection District expect where permitted to continue as a non-conforming use:

a. Disposal of solid waste.

b. Storage and disposal of hazardous waste.

c. Disposal of liquid or leachable wastes except that from one or two-family residential subsurface disposal systems, or as otherwise permitted as a conditional use.

d. Subsurface storage of heating oil or gasoline and other refined petroleum products.

e. Industrial uses which discharge contact type process waters on-site. Non-contact cooling water is permitted.

f. Outdoor unenclosed storage of road salt or other de-icing chemicals.

g. Dumping of snow containing de-icing chemicals brought from outside the district.

h. Animal feedlots – Not permitted.

i. Automotive service and repair shops, junk and salvage yards.

j. All on site handling, disposal, storage, processing or recycling of hazardous or toxic materials except for materials used for normal residential, agricultural or silvicultural activities or those related to the production and testing of drinking water.

k. Dry-cleaning, hair salons, or laundry facilities.

l. No sand or gravel excavation and other mining that is not in accordance with Article V- General Regulations, Section 511 Excavations and Section 9- Prohibited Projects, 9.4 of the Excavation regulations of the Town of North Hampton.

m. Injection wells that dispose of waste in the ground or wastewater.

5. Permitted Uses: The following activities shall be permitted provided they are conducted in accordance with the purposes and intent of this Aquifer Protection District Ordinance:

a. Land development, per the North Hampton Zoning Ordinance, except as prohibited in paragraph 414.5.E.4 of this Aquifer Protection District Ordinance.

b. Activities designed for conservation of soil, water, plants and wildlife.

c. Outdoor recreation, nature study, boating, fishing and hunting where otherwise legally permitted.

d. Normal operation and maintenance of existing water bodies and dams, splash boards and other water control, supply and conservation devices.

e. Foot, bicycle, and/or horse paths and bridges.

f. Maintenance, repair of any existing structures.

g. Farming, gardening, nursery, forestry, harvesting and grazing, provided that fertilizers, herbicides, pesticides, and other leachables are applied using Best Management Practices (BMPs) at levels that will not cause groundwater contamination and are stored under shelter.

h. De-icing chemicals may be used by the road agent subject to the approval of the Select Board. Road salt contamination of our groundwater is of increasing concern in NH and care should be taken to reduce the application of de-icing chemicals on roads crossing or adjacent to our Aquifer Protection District.

6. Septic System Construction: The following more stringent requirements shall apply to all septic system construction.

a. There will be no filling of wetlands allowed to provide the minimum distance of septic to wetlands.

b. The seasonal high water table will be at least two feet below the original ground surface of the leaching field.

c. There will be at least three feet of natural permeable soil above any restrictive soil layer such as clay that prevents the infiltration of water through the layer.

d. There will be at last four feet of natural soil above bedrock.

e. There will be at least seventy-five feet setback for septic systems from wetlands as defined in the North Hampton Wetlands Conservation District.

f. Standards for fill material: Fill material consisting of organic soils or other organic materials such as tree stumps, sawdust, wood chips and bark, even with a soil matrix shall not be used. The in-place fill should have less than 15% organic soil by volume. The in-place fill should not contain more than 25% by volume of cobbles (6 inch in diameter). The in-place fill should not have more than 15% be weight of clay size (0.000078 inches and smaller) particles. The fill should be essentially homogeneous. If bedding planes and other discontinuities are present, detailed analysis is necessary.

414.5.F Conditional Use Permit

1. The following uses are permitted as a Conditional Use Permit within the Aquifer Protection District Ordinance (in compliance with North Hampton Zoning Ordnance):

a. Industrial and commercial uses not otherwise prohibited in paragraph 414.5.E.4 unless and except to the extent that anyone proposing to engage in such prohibited uses can demonstrate to the satisfaction of the Planning Board that the proposed use will not pose a threat to the aquifer.

b. Multi-family dwelling residential development. Minimum lot size to be determined by using Section 406.4.2 of the North Hampton Zoning Ordinance.

2. The Planning Board may grant a special exception for those uses listed above only after written findings of fact are made that all of the following are true:

a. The proposed use will not detrimentally affect the quality of the groundwater contained in the aquifer by directly contributing to pollution or by increasing the long-term susceptibility of the aquifer to potential pollutants.

b. The proposed use will not cause a significant reduction in the long-term volume of water contained in the aquifer or in the storage capacity of the aquifer.

c. The proposed use will discharge no waste water on site other than that typically discharged by domestic waste water disposal systems and will not involve on-site storage or disposal of toxic or hazardous wastes as herein defined.

d. The proposed use complies will all other applicable paragraphs of this section.

3. The Planning Board may require that the applicant provide data or reports prepared by a professional hydrogeologist to assess any potential damage to the aquifer that may result from the proposed use. The Planning Board may engage such professional assistance, as it requires to adequately evaluate such reports and to evaluate, in general, the proposed use in light of the above criteria. Costs incurred shall be the responsibility of the applicant.

414.5.G Design and Operations Guidelines

Where applicable the following design and operation guidelines shall be observed within the Aquifer Protection District:

1. Safeguards: Provision shall be made to protect against toxic or hazardous materials discharge or loss resulting from corrosion, accidental damage, spillage or vandalism through measures including, but not limited to spill control provisions in the vicinity of chemical or fuel delivery points, secured storage areas for toxic or hazardous materials, and indoor storage provisions for corrodible or dissolvable materials. For operations that allow the evaporation of toxic or hazardous materials into the interiors of any structures, a close vapor recovery systems shall be provided for each such structure to prevent discharge of contaminated condensate into the groundwater.

2. Location: Where the premises are partially outside of the Aquifer Protection District, potential pollution sources such as on-site waste disposal systems shall be located outside the Aquifer Protection District to the extent feasible.

3. Drainage: All runoff from impervious surfaces shall be recharged on the site, and diverted toward areas covered with vegetation for surface infiltration to the extent possible.

4. Inspection: All special exceptions granted under paragraph 414.5.F.2 may be subject to annual inspections by the Building Inspector or other agent designated by the Selectmen. The purpose of these inspections is to ensure continued compliance with the conditions under which approvals were granted.

414.5.H Non-Conforming Uses

1. At the time of the adoption of this article, any non-conforming use may continue and may be maintained, repaired or improved, unless such use is determined by the Planning Board to be an imminent hazard to public health and safety. No non-conforming use may be expanded, changed to another non-conforming use, or renewed after it has been discontinued for a period of 90 days or more.

2. Any non-conforming lot of record existing before the effective date of this Article may be used in accordance with paragraph 414.5.E.5, of this Aquifer Protection District Ordinance.

3. Existing non-conforming uses may continue without expanding or changing to another non-conforming use, but must be in compliance with all applicable state and federal requirements including Env-Ws 421 Best Management Practices and Performance Standards parts c, d, e, and h, of Section 1307.

414.5.I Rules

The Planning Board is hereby authorized and empowered to adopt rules or organization and procedures as are necessary for the efficient administration and enforcement of this ordinance.

414.5.J Violations

Upon information from the Building Inspector, Health Officer, Code Enforcement Officer, or other duly authorized agent that the provisions of this Ordinance are being violated, the Select Board shall take immediate steps to enforce the provisions of this Ordinance as provided by the Revised Statutes Annotated of State of New Hampshire.

414.5.K PENALITIES

Any person, firm or corporation violating any of the provisions of this Ordinance shall for each violation, upon conviction thereof, pay a fine of one hundred dollars ($100.00) for each day such violation shall exist.

414.5.L VALIDITY

If any section, clause, provision or portion of this Ordinance shall be held to be invalid or unconstitutional by any court of competent jurisdiction, such holding shall not affect or impair any other section, clause, provision, or portion of this Ordinance.

414.5.M EFFECTIVE DATE

This Section shall become effective upon passage at Town Meeting March 2006.

Section 415 Wireless Telecommunications Facilities *3/11/97

415.1 Definitions

A. Alternative Tower Structure: Shall mean innovative siting techniques that include man made trees, clock towers, bell steeples, light poles, and similar alternative design mounting structures that camouflage or conceal the presence of antennas or towers.

B. Antenna: Shall mean any exterior apparatus designed for telephonic, radio, television, personal communications service (PCS), pager network, or any other communications through the sending and/or receiving of electromagnetic waves of any bandwidth whether it be integral to a tower, microwave or satellite dish structure.

C. Dish: Shall mean any parabolic or spherical microwave antenna reflecting surface structure used for telecommunications.

D. FAA: Shall mean the Federal Aviation Administration.

E. FCC: Shall mean the Federal Communications Commission.

F. Height: Shall mean, when referring to a tower or other structure, the distance measured from ground level to the highest point on the tower or other structure, even if said highest point is an antenna.

G. Preexisting Towers, Antennas and Dishes: Shall mean any tower, antenna or dish lawfully constructed or permitted prior to the adoption of this ordinance. Shall also mean any tower or antenna lawfully constructed in accordance with this ordinance that predates an application currently before the Board.

H. Tower: Shall mean any structure that is designed and constructed primarily for the purpose of supporting one or more antennas, including self supporting lattice towers, guy towers, or monopole towers. The term includes radio and television transmission towers, microwave towers, common carrier towers, cellular telephone towers, alternative tower structures, and the like.

I. Wireless Telecommunications Facilities: Shall mean any antenna, tower, or other structure, which is intended for use in connection with the transmission or reception of radio or television signals or any other electromagnetic spectrum based transmissions/receptions.

415.2 Purpose

These regulations have been enacted in order to establish general guidelines for the siting of towers and antennas and to enhance and fulfill the following goals:

A. Preserve the authority of the Town of North Hampton to regulate and to provide for reasonable opportunity for the siting of wireless telecommu-nications facilities, by enhancing the ability of providers of wireless telecommunications services to provide such services to the community quickly, effectively, and efficiently.

B. Reduce adverse impacts such facilities may create, including, but not limited to; impacts on aesthetics, environmentally sensitive areas, historically significant locations, flight corridors, health and safety by injurious accidents to person and property, and prosperity through protection of property values.

C. Provide for co location and minimal impact siting options through an assessment of technology, current locational options, future available locations, innovative siting techniques, and siting possibilities beyond the political jurisdiction of the Town.

D. Permit the construction of new towers only where all other reasonable opportunities have been exhausted, and to encourage the users of towers and antennas to configure them in a way that minimizes the adverse visual impact of the towers and antennas.

E. Require cooperation and co location, to the highest extent possible, between competitors in order to reduce cumulative negative impacts upon North Hampton.

F. Provide constant maintenance and safety inspections for any and all facilities.

G. Provide for the removal of abandoned facilities that are no longer inspected for safety concerns and code compliance. Provide a mechanism for the Town to remove these abandoned towers to protect the citizens from imminent harm and danger.

H. Provide for the removal or upgrade of facilities that are technologically outdated.

415.3 Wireless Telecommunications Facilities District and Map

The Wireless Telecommunications Facility District shall be an overlay district consisting of all land within 1000 feet of the center of the median on the west side of I-95, all unrestricted Town-owned land or land on which the Town owns the rights to develop such a facility, (excepting the Town Building Complex parcels on Atlantic Avenue), and land on which existing Alternative Town Structures can be used. *3/11/2003

415.4 Permitted Uses Within the Wireless Telecommunications Facilities District

In addition to the uses permitted in the underlying zoning districts under Section 405, wireless telecommunication facilities are a permitted use within the Wireless Telecommunications Facilities District only after obtaining a Conditional Use Permit, as provided for in Section 415.7. All such uses must comply with other applicable ordinances and regulations of the Town of North Hampton. All applications for development of wireless telecommunications facilities shall submit to the full site plan review process, as specified in the Town’s Site Plan Review Regulations, for the entire lot on which any facility is proposed. *3/11/2003

A. Principal or Secondary Use. Antennas and towers may be considered either principal or secondary uses. Having an existing permitted use on site shall not preclude the addition of Telecommunications facilities as a secondary use as long as all other provisions of this ordinance are met. A different existing use or an existing structure on the same lot shall not preclude the installation of an antenna or tower on such lot. For purposes of determining whether the installation of a tower or antenna complies with district development regulations, including but not limited to set back requirements, lot coverage requirements, and other such requirements, the dimensions of the entire lot shall control, even though the antennas or towers may be located on leased parcels within such lots. *3/11/2003

B. Height Requirements. These requirements and limitations shall preempt all other height limitations as required by the Town of North Hampton Zoning Ordinance and shall apply only to telecommunications facilities.

New Tower Construction Co-location on Preexisting Tower Co-location on Existing Structure

Wireless Telecommunications Facilities District 180' Current Height +20% Current Height +40'

C. Amateur Radio; Receive Only Antennas. This ordinance shall not govern any tower, or the installation of any antenna that is under 70 feet in height and is owned and operated by a federally licensed amateur radio station operator or is used exclusively for receive only antennas. This application adopts the provisions and limitations as referenced in RSA 674:16, IV.

D. Essential Services & Public Utilities. Wireless telecommunications facilities shall not be considered infrastructure, essential services, or public utilities, as defined or used elsewhere in the Town's ordinances and regulations. Siting for telecommunication facilities is a use of land, and is addressed by this article.

415.5 Construction Performance Requirements

A. Aesthetic and Lighting. The guidelines in this subsection, shall govern the location of all towers, and the installation of all antennas. However, the Planning Board may waive these requirements only if it determines that the goals of this ordinance are better served thereby.

1. Towers shall either maintain a galvanized steel finish, subject to any applicable standards of the FAA, or be painted a neutral color, so as to reduce visual obtrusiveness.

2. At a tower site, the design of the buildings and related structures shall, to the extent possible, use materials, colors, textures, screening, and landscaping that will blend the tower facilities with the natural setting and built environment. These buildings and facilities shall also be subject to all other Site Plan Review Regulation require¬ments.

3. If an antenna is installed on a structure other than a tower, the antenna and supporting electrical and mechanical equipment must be of neutral color that is identical to, or closely compatible with, the color of the supporting structure so as to make the antenna and related equipment as visually unobtrusive as possible.

4. Towers shall not be artificially lighted, unless required by the FAA or other applicable authority. If lighting is required, the governing authority may review the available lighting alternatives and approve the design that would cause the least disturbance to the surrounding views.

5. Towers shall not contain any permanent or temporary signs, writing, symbols, or any graphic representation of any kind.

B. Federal Requirements. All towers must meet or exceed current standards and regulations of the FAA, FCC, and any other agency of the federal government with the authority to regulate towers and antennas. If such standards and regulations are changed, then the owners of the towers and antennas governed by this ordinance shall bring such towers and antennas into compliance with such revised standards and regulations within six (6) months of the effective date of such standards and regulations, unless a more stringent compliance schedule is mandated by the control¬ling federal agency. Failure to bring towers and antennas into compliance with such revised standards and regulations shall constitute grounds for the removal of the tower or antenna, as abandoned, at the owner’s expense through the execution of the posted security.

C. Building Codes Safety Standards. To ensure the structural integrity of towers and antennas, the owner of a tower shall ensure that it is maintained in compliance with standards contained in applicable local building codes and the applicable standards for towers that are published by the Electronic Industries Association, as amended from time to time. If, upon inspection, the Town concludes that a tower fails to comply with such codes and standards and constitutes a danger to persons or property, then upon notice being provided to the owner of the tower, the owner shall have 30 days to bring such tower into compliance with such standards. If the owner fails to bring such tower into compliance within 30 days, such action shall constitute an abandonment and grounds for the removal of the tower or antenna, as abandoned, at the owner’s expense through execution of the posted security.

415.6 Additional Requirements for Wireless Telecommunications Facilities

These requirements shall supersede any and all other applicable standards found elsewhere in Town ordinances or regulations that are less strict.

A. Setbacks and Separation

1. Towers must be set back a distance equal to 125% of the height of the tower from any unaffiliated structures, parking areas or lots, driveways, roads, developed areas or property lines. *3/9/99

2. Tower, guys, and accessory facilities must satisfy the minimum zoning district setback requirements.

B. Security Fencing

Towers shall be enclosed by security fencing not less than six feet in height and shall also be equipped with an appropriate anti climbing device.

C. Landscaping

1. The carrier shall maintain a vegetative buffer at least as tall as the security fence, 360 degrees surrounding the facility, a minimum of twenty-five (25) feet deep starting at the fence, extending outward. The barrier shall be in keeping with the surrounding vegetation, where appropriate, and shall effectively screen the facility 365 days of the year. *3/9/99

2. The vegetation buffer shall be protected by a landscape easement or be within the area of the carrier’s lease or ownership. The easement or lease shall specify that the trees within the buffer shall not be removed or topped unless the trees are dead or dying, present a hazard to persons or property, or as approved during site plan review. *3/9/99

3. Existing mature tree growth and natural land forms on the site shall be preserved to the maximum extent possible. In some cases, such as towers sited on large wooded lots, natural growth around the property may be deemed a sufficient buffer.

415.7 Conditional Use Permits

A. General: All applications under this ordinance shall apply to the Planning Board for Site Plan Review, in accordance with the requirements as provided for in the Town's Site Plan Review Regulations. In addition, applications under this ordinance shall be required to submit the information provided for in this section.

B. Issuance of Conditional Use Permits: In granting the Conditional Use Permit, the Planning Board may impose conditions to the extent the Board concludes such conditions are necessary to minimize any adverse effect of the proposed tower on adjoining properties.

1. Procedure on application: The Planning Board shall act upon the application in accordance with the procedural requirements of the Site Plan Review Regulations.

2. Decisions: Possible decisions rendered by the Planning Board, include approval, conditional approval, or denial. All decisions shall be rendered in writing, in accordance with RSA 676:3. In accordance with the National Wireless Telecommunications Siting Policy Section 332(c)(47 U.S.C. 332(c)), a denial shall be based upon substantial evidence contained in the written record.

3. Factors Considered in Granting Decisions:

a. Height of proposed tower or other structure does not exceed that which is essential for its intended use and public safety.

b. Proximity of tower to residential development or zones.

c. Nature of uses on adjacent and nearby properties.

d. Surrounding topography.

e. Surrounding tree coverage and foliage.

f. Design of the tower, with particular reference to design character¬istics that have the effect of reducing or eliminating visual obtrusiveness.

g. Proposed ingress and egress to the site.

h. Availability of suitable existing towers and other structures as discussed in Section 415.7.B.5.d.

i. Visual impacts on view sheds, ridge lines, and other impacts by means of tower location, tree and foliage clearing and placement of incidental structures.

j. That the proposed facility/tower/dish will not unreasonably interfere with the view from any public park, natural scenic vista, historic building or major view corridor.

k. That the proposed facility/tower/dish is not constructed in such a manner as to result in needless height, mass, and guy wire supports.

4. Plan Requirements: Each applicant requesting a Conditional Use Permit under this ordinance shall submit a scaled plan in accordance with the Site Plan Review Regulations and further information including:

a. A scaled elevation view; this shall be a 3-dimensional perspective color-rendered drawing of the proposed site and abutters property and buildings up to a radius of ½ mile.

b. Topography

c. Radio frequency coverage

d. Tower height requirements

e. Setbacks adjacent uses (up to 200' away) location of all buildings and structures within 500 feet of proposed tower

f. Driveways and parking

g. Fencing

h. Landscaping

5. Information Required: In order to assess compliance with this ordinance, the Planning Board shall require the applicant to submit the following prior to any approval by the Board:

a. The applicant shall submit written proof that the proposed use/facil¬ity complies with the FCC regulations on radio frequency (RF) exposure guidelines.

b. The applicant shall submit written proof that an evaluation has taken place, as well as the results of such evaluation, satisfying the requirements of the National Environmental Policy Act (NEPA) further referenced in applicable FCC rules. If an Environmental Assessment (EA) or an Environmental Impact Statement (EIS) is required under the FCC rules and NEPA, submission of the EA or EIS to the Board prior to the beginning of the federal 30 day comment period, and the Town process shall become part of the application requirements.

c. Each applicant for an antenna and or tower shall provide to the Planning Board an inventory of its existing towers that are within the jurisdiction of the Town and those within two miles of the border thereof, including specific information about the location, height, design of each tower, as well as economic and technological feasibility for co location on the inventoried towers. The Planning Board may share such information with other applicants applying for approvals or conditional use permits under this ordinance or other organizations seeking to locate antennas within the jurisdiction of the governing authority, provided, however that the Planning Board is not, by sharing such information, in any way representing or warranting that such sites are available or suitable.

d. If the applicant is proposing to build a new tower, the applicant shall submit written evidence demonstrating that no existing structure can accommodate the applicant's proposed antenna. This evidence may consist of:

i. Substantial evidence that no existing towers or structures are located within the geographic area required to meet the applicant's engineering requirements, provided that a description of the geographic area required is also submitted.

ii. Substantial evidence that existing towers are not of sufficient height to meet the applicant's engineering requirements, and why.

iii. Substantial evidence that the existing towers or structures do not have sufficient structural strength to support applicant's proposed antenna and related equipment.

iv. Substantial evidence that applicant's proposed antenna would cause electromagnetic interference with the antenna on the existing towers or structures, or the antenna on the existing towers or structures would cause interference with the applicant's proposed antenna.

v. Substantial evidence that the fees, costs, or contractual provisions required by the owner in order to share the existing tower or structure are unreasonable. Costs exceeding new tower develop¬ment are presumed to be unreasonable.

vi. Substantial evidence that the applicant can demonstrate other limiting factors that render existing towers and structures unsuitable.

vii. Information on how many wireless facility sites each provider will require.

viii. Information on what sites outside of the Town of North Hampton are being considered for other sites.

ix. Information on how future technology would reduce or eliminate the need for tall antenna sites.

x. Information on how the siting of a wireless facility affects the ability to allow a competitor's antennas on the same property.

xi. Information on whether any, or all, of the wireless carriers use the system known as CMI/HIC which utilizes cable television lines and small transceivers mounted on utility poles to communicate with wireless telephones.

xii. Information on whether there are any of the carriers using CMI/HIC in other cities and towns.

xiii. Information on whether it is feasible for carriers to locate base station equipment underground.

e. The applicant proposing to build a new tower shall submit an agreement with the Town that allows for the maximum allowance of co location upon the new structure. Such statement shall become a condition to any approval. This statement shall, at a minimum, require the applicant to supply available co location for reasonable fees and costs to other telecommunications providers. Failure to provide such an agreement is evidence of the applicant's unwillingness to cooperate with the orderly and well planned development of the Town of North Hampton.

415.8 Bonding, Security and Insurance

Recognizing the extremely hazardous situation presented by abandoned and unmonitored towers, the Planning Board shall set the form and amount of security that represents the cost for removal and disposal of abandoned towers in the event that the tower is abandoned and the tower owner is incapable and unwilling to remove the tower in accordance with Section 415.9. Upon construction of the tower, the Planning Board shall also require a certificate of appropriate insurance covering the constructed facilities, with ten-day notice of any changes in coverage.

415.9 Removal of Abandoned Antennas and Towers

Any antenna or tower that is not operated for a continuous period of 12 months shall be considered abandoned and hazardous to the public health and safety, unless the owner of said tower provides proof of quarterly inspections. The owner shall remove the abandoned structure within 90 days of receipt of a declaration of abandonment from the Town notifying the owner of such abandon¬ment. A declaration of abandonment shall only be issued following a public hearing, noticed per Town regulations, with notice to abutters and the last known owner/operator of the tower. If the abandoned tower is not removed within 90 days the Town may execute the security and have the tower removed.

If there are two or more users of a single tower, this provision shall not become effective until all users cease using the tower.

415.10 Consultant Fees

The Board may retain the services of a consultant qualified in wireless telecommunications services to review the application and all associated information. The Board may further require, pursuant to RSA 676:4 I(g), that the applicant reimburse the Town for reasonable costs of this review. No application shall be approved until such fees, if applicable, are paid in full.

415.11 Waivers

Where the Board finds that extraordinary hardships, practical difficulties, or unnecessary and unreasonable expense would result from strict compliance with the foregoing regulations or the purposes of these regulations may be served to a greater extent by an alternative proposal, it may approve waivers to these regulations. The purpose of granting waivers under provisions of these regulations shall be to insure that an applicant is not unduly burdened as opposed to merely inconvenienced by said regulations. The Board shall not approve any waiver(s) unless a majority of those present and voting shall find that all of the following apply:

A. The granting of the waiver will not be detrimental to the public safety, health or welfare or injurious to other property and will promote the public interest.

1. The waiver will not, in any manner, vary the provisions of the North Hampton Zoning Ordinance, North Hampton Master Plan, or Official Maps.

2. Such waiver(s) will substantially secure the objectives, standards and requirements of these regulations.

3. A particular and identifiable hardship exists or a specific circumstance warrants the granting of a waiver. Factors to be considered in determining the existence of a hardship shall include, but not be limited to:

i. Topography and other site features;

ii. Availability of alternative site locations;

iii. Geographic location of property; and

iv. Size/magnitude of project being evaluated and availability of co-location.

B. Conditions. In approving waivers, the Board may impose such conditions, as it deems appropriate to substantially secure the objectives of the standards or requirements of these regulations.

C. Procedures. A petition for any such waiver shall be submitted in writing by the applicant with the application for Board review. The petition shall state fully the grounds for the waiver and all of the facts relied upon by the applicant. Failure to submit petition in writing shall require an automatic denial. *3/11/97

Section 416 Sexually Oriented Businesses

(Added March 12, 2002; updated March 2007)

WHEREAS, there is convincing documented evidence that Sexually Oriented Businesses, because of their very nature, have a deleterious effect on both the existing businesses around them and the surrounding residential areas adjacent to them, causing increased crime, the downgrading of property values, and a general degrading of the quality of life; and

WHEREAS, the North Hampton Planning Board wants to prevent these adverse effects and thereby protect the health, safety and welfare of the citizenry; protect the citizens from increased crime; preserve the quality of life; preserve the property values and character of surrounding neighborhoods; and

WHEREAS, it is not the intent of this Ordinance to suppress any speech activities protected by the First Amendment, but to enact a content neutral Ordinance that regulates the secondary effects of Sexually Oriented Businesses; and

WHEREAS, it is not the intent of the North Hampton Planning Board to condone or legitimize the distribution of obscene materials, and the North Hampton Planning Board recognizes that state and federal law prohibits the distribution of obscene materials and expects and encourages state enforcement officials to enforce state and federal obscenity statutes against any such illegal activities in the Town of North Hampton.

Pursuant to the authority granted by the Constitution and the Legislature of the State of New Hampshire, BE IT ENACTED BY THE PLANNING BOARD OF NORTH HAMPTON, NEW HAMPSHIRE, COUNTY OF ROCKINGHAM AS FOLLOWS:

416.1 Purpose and Findings

A. Purpose. It is the purpose of this Ordinance to regulate Sexually Oriented Businesses and related activities to promote the health, safety, and general welfare of the citizens of the Town of North Hampton, and to establish reasonable and uniform regulations to prevent the deleterious location and concentration of Sexually Oriented Businesses within the Town of North Hampton. The provisions of this Ordinance have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials. Similarly, it is not the intent nor effect of this Ordinance to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. Neither is it the intent nor effect of this Ordinance to condone or legitimize the distribution of obscene materials.

B. Findings. This ordinance is based on evidence concerning the adverse secondary effects of adult uses on the community presented in hearings and in reports made available to the Town of North Hampton.

416.2 Definitions.

A. “Sexually Oriented Business” means an adult arcade, adult bookstore or adult video store, adult cabaret, adult drive in theatre, adult motel, adult motion picture theater, adult theater, nude model studio, or sexual encounter center as those terms are defined below:

B. ADULT ARCADE means any place to which the public is permitted or invited wherein coin-operated or slug-operated or electronically, electrically, or mechanically controlled still or motion picture machines, projectors, videos, or other image-producing devices are maintained, and which are intended to, or do, show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by the simulating, depicting or describing of "specified sexual activities" or "specified anatomical areas."

C. ADULT BOOKSTORE or ADULT VIDEO STORE means a commercial establishment that, as one of its principal business purposes, offers for sale or rental for any form of consideration any one or more of the following:

1. Books, magazines, periodicals or other printed matter, or photographs, films, motion picture, video cassettes or video reproductions, slides, or other visual representations that depict or describe "specified sexual activities" or "specified anatomical areas;" or

2. Instruments, devices, or paraphernalia that are designed for use in connection with "specified sexual activities." A principal business purpose exists if materials offered for sale or rental depicting or describing "specified sexual activities" or "specified anatomical areas" generate 10% or more of the business’s income, or account for 10% or more of inventory, or occupy 10% or more of total floor space. A commercial establishment may have other principal business purposes that do not involve the offering for sale or rental of material depicting or describing "specified sexual activities" or "specified anatomical areas" and still be categorized as ADULT BOOKSTORE or ADULT VIDEO STORE. Such other business purposes will not serve to exempt such commercial establishments from being categorized as an ADULT BOOKSTORE or ADULT VIDEO STORE so long as one of its principal business purposes is the offering for sale or rental for consideration the specified materials that depict or describe "specified sexual activities" or "specified anatomical areas."

D. ADULT CABARET means a nightclub, bar, restaurant, café, or similar commercial establishment that regularly, commonly, habitually, or consistently features:

1. Persons who appear in a state of nudity or semi-nudity; or

2. Live performances that are characterized by the exposure of "specified sexual activities" or by "specified anatomical areas"; or

3. Films, motion pictures, video cassettes, slides, photographic reproductions, or other image producing devices that are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas"; or

4. Persons who engage in "exotic" or erotic dancing or performances that are intended for the sexual interests or titillation of an audience or customers.

E. ADULT DRIVE-IN THEATER means an open lot or part thereof, with appurtenant facilities, devoted primarily to the presentation of motion pictures, films, theatrical productions, and other forms of visual productions, for any form of consideration to the persons in motor vehicles or on outdoor seats, in which a substantial portion of the total presentation time being presented for observation by patrons is devoted to the showing of material which meets the definition of "harmful to minors" and/or "sexual conduct" as set forth in RSA 571-B:1.

F. ADULT MOTEL means a hotel, motel or similar commercial establishment that:

1. Offers accommodation to the public for any form of consideration and provides patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, slides, or other photographic reproductions that are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas;" and has a sign visible from the public right of way that advertises the availability of this adult type of photographic reproductions; or

2. Offers a sleeping room for rent for a period of time that is less than ten (10) hours; or

3. Allows a tenant or occupant of a sleeping room to sub-rent the room for a period of time that is less than twenty-four (24) hours.

G. ADULT MOTION PICTURE THEATER means a commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, slides, or similar photographic reproductions are regularly, commonly, habitually, or consistently shown that are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas."

H. ADULT THEATER means a theater, concert hall, auditorium, or similar commercial establishment that regularly, commonly, habitually, or consistently features persons who appear, in person, in a state of nudity and/or semi-nudity, and/or live performances that are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities."

I. ESTABLISHMENT means and includes any of the following:

1. The opening or commencement of any Sexually Oriented Business as a new business;

2. The conversion of an existing business, whether or not a Sexually Oriented Business, to any Sexually Oriented Business;

3. The additions of any Sexually Oriented Business to any other existing Sexually Oriented Business; or

4. The relocation of any Sexually Oriented Business; or

5. A Sexually Oriented Business or premises on which the Sexually Oriented Business is located.

J. LICENSED DAY-CARE CENTER means a facility licensed by the State of New Hampshire, whether situated within the Town of North Hampton or not, that provides care, training, education, custody, treatment or supervision for more than twelve (12) children under fourteen (14) years of age, where such children are not related by blood, marriage or adoption to the owner or operator of the facility, for less than twenty-four (24) hours a day, regardless of whether or not the facility is operated for a profit or charges for the services it offers.

K. NUDE MODEL STUDIO means any place where a person who appears in a state of nudity or displays "specified anatomical areas" for the purpose of being observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons for consideration.

L. NUDITY or a STATE OF NUDITY means the appearance of a human bare buttock, anus, anal cleft or cleavage, pubic area, male genitals, female genitals, or vulva, with less than a fully opaque covering; or a female breast with less than a fully opaque covering of any part of the areola; or human male genitals in a discernibly turgid state even if completely and opaquely covered.

M. PREMISES means the portion of real property upon which the Sexually Oriented Business is located, and all appurtenances thereto and buildings thereon, including, but not limited to, the Sexually Oriented Business, the grounds, private walkways, and parking lots and/or parking garages adjacent thereto.

N. SEMI-NUDE OR SEMI-NUDITY means the appearance of the female breast below a horizontal line across the top of the areola at its highest point. This definition shall include the entire lower portion of the human female breast, but shall not include any portion of the cleavage of the human female breast exhibited by a dress, blouse, skirt, leotard, bathing suit, or other wearing apparel provided the areola is not exposed in whole or in part.

O. SEXUAL ENCOUNTER CENTER means a business or commercial enterprise that, as one of its principal business purposes, offers for any form of consideration:

1. Physical contact in the form of wrestling or tumbling between persons of the opposite sex; or

2. Activities between persons of the opposite sex and/or persons of the same sex when one or more of the persons is in a state of nudity or semi-nudity. A principal business purpose exists if the services offered are intended to generate business income.

P. SPECIFIED ANATOMICAL AREAS means:

1. The human male genitals in a discernibly turgid state even if fully and opaquely covered;

2. 2) Less than completely and opaquely covered human genitals, pubic region, buttocks, or a female breast below a point immediately above the top of the areola.

Q. SPECIFIED SEXUAL ACTIVITIES means and includes any of the following:

1. The fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breasts, whether covered or uncovered;

2. Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, or sodomy;

3. Masturbation, actual or simulated; or

4. Excretory functions as part of or in connection with any of the activities set forth in 1 through 3 above.

416.3 Location Restrictions

Sexually Oriented Businesses shall be permitted in the I-B/R Zone (See official Town of North Hampton Zoning Map).

Sexually Oriented Businesses are subject to all of the ordinances, regulations, requirements, and restrictions which pertain to the North Hampton I-B/R Zone, in addition to those set forth in this Ordinance.

A. The Sexually Oriented Business may not be operated within:

1. 500 feet of the property line of a church, synagogue, mosque, temple or building which is used primarily for religious worship and related religious activities;

2. 500 feet of the property line of a public or private educational facility including, but not limited to, child day care facilities, nursery schools, preschools, kindergartens, elementary schools, private schools, intermediate schools, junior high schools, middle schools, high schools, vocational schools, secondary schools, continuation schools, special education school, junior colleges, and universities; school includes the school ground, but does not include the facilities used primarily for another purpose and only incidentally as a school;

3. 1,500 feet of the property line of a public park or recreational area which has been designated for park or recreational activities including, but not limited to, a park, playground, nature trails, swimming pool, reservoir, athletic field, basketball or tennis courts, skating rink, pedestrian/bicycle paths, or other similar public recreation land which is under the control, operation, or management of the Town or any of its Departments, Boards or Commissions;

4. 1,850 feet of the property lines of the Town “Municipal Complex” (Town Offices, Town Hall, Town Library, and Fire and Police Stations) located on Atlantic Avenue;

5. 300 feet of the property line of a lot used for residential purposes within the I-B/R zone, or zoned for residential use outside the I-B/R zone and devoted to a residential use as defined in the zoning code; or

6. 300 feet of any posted school bus stop;

7. 1,500 feet of the property line of another Sexually Oriented Business.

8. 300 feet of a town border.

9. 500 feet of the property line of any child-oriented business on a list of such businesses available for pubic inspection in the Planning and Zoning Office.

a. The Legislative Body shall adopt the list of child-oriented businesses at least quadrennially.

b. Town Staff Members in the Planning and Zoning Office shall prepare a map of the Town locating all child-oriented businesses that appear on the list and depicting all areas in which Sexually Oriented Businesses are prohibited under this Section 416.3A.9. This map shall be available to the public in the Planning and Zoning Office.

c. The Planning Board shall review the list of child-oriented businesses at least annually; determine whether changes in local child-oriented business establishments warrant revision of the list, and as appropriate recommend that the Legislative Body adopt a revised list at Town Meeting.

d. At least quadrennially, the Planning Board shall prepare and place on the Town Warrant a list of child-oriented businesses for adoption by the Legislative Body. Should the Legislative Body fail to adopt the proposed list, the then current map of areas in which Sexually Oriented Businesses are prohibited shall remain in effect until the Legislative Body at a subsequent Town Meeting adopts a new list.

e. Examples of types of child-oriented businesses that may be placed on the list and map include, but are not limited to:

i. clothing and shoe stores for minors,

ii. dance, gymnastics or martial arts studios that offer classes for minors;

iii. arts or crafts studios that offer classes for minors,

iv. learning centers (e.g., Sylvan Learning Center) that provide educational services for minors,

v. day-care centers for minors,

vi. facilities specifically for minors’ activities or functions (e.g., Chuck E. Cheese’s, game arcades),

vii. retail stores that sell products that focus on minors as customers (e.g., toy stores or hobby shops). (3/11/2008)

Sample List of Child-oriented Businesses (as of 15 November 2007):

Child Orientated Businesses in North Hampton Address Map & Lot

Kids N Toe 112 Lafayette Road 013-026

MastersCenters/Karate, martial Arts, Yoga 106 Lafayette Rd 013-026

Learning Express Lafayette Crossing 007-053

Wicked Fun Art Fern Crossing 007-115

Brain Waves Learning Center 18 Lafayette Road 003-098-001

Atlantic Karate Training Center 18 Lafayette Road 003-098-001

Neal’s N Gauging Trains 14 Lafayette Road 003-096

Imprint’s Day School 14 Lafayette Road 003-096

Junior Gym 14 Lafayette Road 003-096

Karate – Mike Worobel Martial Arts 14 Lafayette Road 003-096

Stevens Miniature Golf 178 Lafayette Road 017-084-001

Luff Miniature Golf & Driving Range 22 North Road 017-108

B. Sexually Oriented Business may not be operated in the same building, structure, or portion thereof, containing another Sexually Oriented Business.

C. For the purpose of this Ordinance, measurement shall be made in a straight line, without regard to intervening structures or objects, from the nearest portion of the building or structure used as a part of the premises where a Sexually Oriented Business is conducted, to the nearest property line of the premises of a church, synagogue, regular place of worship, or public or private elementary or secondary school, or to the nearest boundary of an affected public park, residential district, or licensed day care center or other protected area described in this Section.

D. For purposes of 416.3.A of this Section, the distance between any two Sexually Oriented Business uses shall be measured in a straight line, without regard to intervening structures or objects, from the closest exterior wall of the structure in which each business is located.

E. Site Plan Approval: Site Plan Approval, including change of use approval, by the North Hampton Planning Board shall be a prerequisite for the establishment of a Sexually Oriented Business or expansion or change from one or more types of sexually oriented business to another. The Planning Board may impose reasonable restrictions pursuant to RSA 674:43, including but not limited to buffers, outdoor lighting, signs, parking, ingress and egress, pedestrian movement, landscaping, building aesthetics, as well as measures to ensure that displays of merchandise conform to NH RSA 571-B.

F. Public Nuisance Per Se: Violation of the use provisions of this Ordinance is declared to be a public nuisance per se, which shall be abated by the Town of North Hampton by way of civil abatement procedures.

G. Limiting Clause: Nothing in this Ordinance is intended to authorize, legalize or permit the establishment operation or maintenance of any business, building or use which violates any Town of North Hampton Ordinance or statute of the State of New Hampshire regarding public nuisances, sexual conduct, lewdness, or obscene or harmful matter or the exhibition or public display thereof.

416.4 Exterior Portions of Sexually Oriented Businesses

A. It shall be unlawful for an owner or operator of a Sexually Oriented Business to allow the merchandise or activities of the establishment to be visible from a point outside the establishment.

B. It shall be unlawful for the owner or operator of a Sexually Oriented business to allow the exterior portion of the Sexually Oriented Business to have flashing lights, or any words, lettering, photographs, silhouettes, drawings, or pictorial representations of any manner except to the extent permitted by the provisions of this Ordinance, or other provisions of the North Hampton Zoning Ordinance.

C. It shall be unlawful for the owner or operator of a Sexually Oriented Business to allow exterior portions of the establishment to be painted any color other than a single achromatic color. This provision shall not apply to a Sexually Oriented Business if the following conditions are met:

1. The establishment is a part of a commercial multi-unit center; and

2. The exterior portions of each individual unit in the commercial multi-unit center, including the exterior portions of the business, are painted the same color as one another or are painted in such a way so as to be a component of the overall architectural style or pattern of the commercial multi-unit center.

D. Nothing in this article shall be construed to require the painting of an otherwise unpainted exterior portion of a Sexually Oriented Business.

416.5 Signage

A. Signage shall comply in all respects with all ordinances, codes or regulations governing signs, except that notwithstanding any other Town of North Hampton Ordinance, code, or regulation to the contrary, it shall be unlawful for the operator of any Sexually Oriented Business or any other person to erect, construct, or maintain any sign for the Sexually Oriented Business other than the one (1) primary sign and one (1) secondary sign, as provided herein.

B. No sign, whether primary or secondary, shall contain photographs, silhouettes, drawings, images or pictorial representations in any manner depicting or making linguistic reference to nudity, specified anatomical areas, specified sexual activity, or any device or paraphernalia designed for use in connection with specified sexual activity and may contain only the name of the enterprise.

416.6 Separability

If any section, subsection, sentence, clause, phrase or any portion of this Ordinance shall be deemed to be unconstitutional or otherwise invalid, the validity of the remaining sections, subsections, and clauses shall not be affected thereby.

416.7 Effective Date

This Ordinance shall be enforced from and after passage by the 2002 Town Meeting.

Section 417 Conservation Subdivision Design

A. AUTHORITY

This ordinance is adopted pursuant to RSA 674:21.II which states that an innovative land use control ordinance may provide for administration of the ordinance, including the granting of conditional or special use permits, by the planning board.

All subdivisions governed by this ordinance shall require the issuance of a Conditional Use Permit by the Planning Board. The conditions that must be satisfied in order for the permit to be issued are all of the individual provisions of this ordinance. Requests for waivers from individual provisions of this ordinance must be written and the Planning Board must vote on each waiver request at a properly noticed public hearing.

Any person aggrieved by a Planning Board decision on a Conditional Use Permit may appeal that decision to the Superior Court, as provided for in RSA 677:15. A Planning Board decision on the issuance of a Conditional Use Permit cannot be appealed to the Zoning Board of Adjustment (RSA 676:5 III).

B. PURPOSE AND OBJECTIVES

The purpose of this regulation is to permit the implementation of innovative land use controls that preserve North Hampton’s rural character and environmentally sensitive elements and that allow Conservation Subdivision design. The purpose of this Article is to:

1) Sustain the scenic quality and visual character of the town;

2) Promote the conservation, protection and sound management of the natural resource base; provide flexibility, creativity and efficiency in the location and design of residential developments, roads, facilities and infrastructure;

3) Encourage the permanent preservation of open space, agricultural and forested land, other natural resources including water bodies and wetlands, and historical and archeological resources;

4) Reduce sprawl by requiring a more efficient form of development that consumes less open land and conforms better than a conventional or grid subdivision to existing topography and natural features;

5) Enhance the quality of life by increasing open space and the public’s access to land for walking and aesthetic enjoyment;

6) Promote a natural system of storm water management to minimize erosion and encourage aquifer recharge;

7) Implement the first General Principle of “A Vision for North Hampton” in the Master Plan of the Town of North Hampton: “As the state and region develop in the future, North Hampton should maintain its rural New England seacoast character and heritage.”

C. APPLICABILITY

This article represents an alternative development option for residential subdivisions. An applicant may choose to follow the provisions of this article instead of submitting an application for residential subdivision development that would be governed by Section 406, Yard and Lot Requirements, for the Town of North Hampton Zoning Ordinance.

This Article may be utilized in all zoning districts in the Town of North Hampton, including the I/BR District, but this Article only applies to residential subdivisions. It does not apply to applications for site plan review for commercial, industrial, or retail development.

D. SUBDIVISION APPROVAL REQUIRED

1) A Conservation Subdivision shall require Planning Board approval. If an applicant chooses to utilize this optional residential subdivision development ordinance, then the application for approval shall comply with the Planning Board’s subdivision regulations and procedures and the following requirements:

2) Preliminary Consultation. The Planning Board shall require a preliminary Conceptual Consultation. At or prior to this meeting, the applicant shall submit a Sketch Plan. This should be done before any engineering needed for preliminary or final plans is begun. During the preliminary consultation, the Board and the applicant may discuss proposals in conceptual form only and in general terms such as desirability of types of development and proposals under the Master Plan and basic requirements for the submission of a subdivision application.

3) Design Review. The Planning Board shall require a Design Review. At or prior to this meeting, the applicant shall submit a site analysis showing the surrounding area and the physical features and character of the site as specified by step one of the four-step design process in Paragraph J below. The design review may include more specific design and engineering details than the Preliminary Consultation and should include the four-step design process described in Paragraph J below. Design review requires notice to abutters and other parties as identified in RSA 676:4 I(d). The Preliminary Consultation and the Design Review shall be separate and apart from formal consideration of the plan, and the time limits for the Board to act on a plan shall not apply until the formal application is submitted.

4) Density. The applicant shall submit a Yield Plan or Density Calculation, which shall be evaluated by and acceptable to the Planning Board.

5) Maximum Density. “Maximum Density” means the total number of dwelling units permitted on the Parent Lot after subdivision. Maximum Density in a subdivision under this ordinance shall not exceed the density for a conventional subdivision permitted in the underlying zoning district. The Planning Board may approve a Conservation Subdivision Design with the number of house lots allowed pursuant to the determination of Maximum Density, provided that the number of resulting house lots can be established on the Parent Lot. Allowable density shall never exceed permitted density in the underlying zoning district.

E. CRITERIA

1) In evaluating the acceptability of proposed Conservation Open Space area(s), the Planning Board shall consider the extent to which the location and design of the area achieves these objectives:

2) Master Plan. The proposed development will be consistent with, and comply with, the general purpose, principles, goals, objectives, standards and provisions of the North Hampton Master Plan.

3) Accessibility of Open Space. The suitability of all Conservation Open Space shall be determined by the size, shape, topography and location for the proposed purpose, and shall be accessible to all intended users. Undivided Conservation Open Space shall be directly accessible to the largest practicable number of lots within the conservation subdivision.

4) Ecosystem Function and Habitat Integrity. Subdivisions shall be designed around both the Primary and Secondary Conservation Areas to conserve large enough contiguous blocks of land to retain ecosystem function and habitat integrity.

5) Minimize Alteration of Natural Features. The individual lots, buildings, streets and parking areas shall be designed and situated to minimize alteration of the natural, cultural and/or historic site features, and shall take those features into account in the placement of all structures.

6) Narrow open-space strips shall not be permitted unless the incorporation of the open-space strips provides a logical and practical link to, or expansion of, either existing or planned adjacent preserved open space, water bodies, watercourses, or trails, or serves to provide protection for natural resources.

7) Avoid Fragmentation. Efforts shall be made to minimize fragmentation of habitats and to provide corridors for wildlife movement among habitats.

8) Interconnected Open Space. Preserved Open Spaces shall be interconnected wherever possible to provide a continuous network of open-space lands within and adjoining the development. This includes connecting with preserved open space adjacent to the property.

9) Common Open Space shall be free of all structures except those permitted by the Planning Board as appropriate to the objectives of this ordinance and the welfare of the inhabitants of the subdivision.

F. FLEXIBILITY

1) Although this ordinance is designed to encourage flexibility and creativity consistent with the Conservation Subdivision Design concept, the following minimum standards shall apply. The minimum frontage required shall be 100 feet. The minimum lot width shall be 60 feet. No two single-family dwellings may be closer than 30 feet apart. Side setbacks shall be a minimum of 15 feet, and rear setbacks shall be a minimum of 10 feet. Front setback shall be a minimum of 30 feet. The subdivision shall meet all other dimensional criteria of the zoning ordinance and subdivision regulations except as specified in this Article.

2) No lot shall be permitted that will not provide adequate water supply or support a septic system, including a recharge area, except in a Conservation Subdivision for which a community water and/or septic system has been approved and approved by all agencies and boards with jurisdiction.

3) Upon written request by the applicant, the Planning Board may grant a waiver of one or more of the provisions of this Article as it deems appropriate, providing the Planning Board first shall determine the following:

a. The waiver is related to unique physical conditions peculiar to the proposed subdivision:

b. Granting the waiver will not be contrary to the purposes and objectives of this Article; and

c. Granting the waive will not adversely affect the public good.

G. CONSERVATION OPEN SPACE REQUIREMENTS

1) A minimum of 50% of the Buildable Area of the Parent Lot shall be included as Conservation Open Space.

2) Conservation Open Space land shall not be further subdivided or developed.

3) Except for easements for utilities, Conservation Open Space land shall not be used other than for Low Impact Recreation, conservation or agricultural purposes.

4) Notwithstanding the preceding paragraph, other uses or structures may be permitted by the Planning Board if it finds the uses in accord with this Article, its Purpose and Objectives.

H. OWNERSHIP OF CONSERVATION OPEN SPACE AREAS

Permanent provisions for the use, ownership, and maintenance of the

Conservation Open Space shall be required by the Planning Board as a condition of approval in accordance with the Subdivision Regulations.

I. PROTECTION OF CONSERVATION OPEN SPACE AREAS

1) All Conservation Open Space and included facilities shall be permanently protected by covenants, conservation easements, and/or deed restrictions running with the land. All such instruments shall be reviewed by Town Counsel and reviewed and approved by the Planning Board before any conveyance of individual lots to land owner(s). The Town shall hold an Executory Interest in any such easements.

2) Pursuant to RSA 674:21-a, the open space conservation area designation required by this ordinance shall be deemed to create a conservation restriction as defined in RSA 477:45.I which shall run with the land, and shall be enforceable by the municipality, or by the owner of any property which would be specially damaged by the violation of such restriction, regardless of whether any deed or other instrument conveying such restriction has been executed or recorded. An applicant’s statement of intent to restrict development, submitted with or contained in an application that is subsequently approved shall be deemed a condition of the approval. The requirement for this statement is in addition to the requirements stated above in this ordinance for a recorded easement and deed.

J. FOUR-STEP DESIGN PROCESS

The applicant shall follow the four step design process, described below, when submitting the design for the subdivision. This four-step process shall be initiated at the design review stage and continued through the formal submission and review of an application with a full plan set.

The four-step design process includes the following elements:

1) Step One: Identify Natural Resource Areas and methods to protect these areas.

a. Identify natural resource areas including wetlands, floodplains, steep slopes greater than 15 percent, surface water areas and groundwater resources including aquifers and wells, and existing conservation lands owned by the town or by a state or local conservation organization or a private entity.

b. Reference the Conservation and Stewardship Plan 2007 and subsequent amendments as it pertains to the parcel being developed and abutting parcels.

c. Identify methods such as erosion and sediment control measures, riparian buffers, and protection of trees during the construction process to protect these resources from the impacts of development.

d. Where possible, utilize on-site infiltration of storm water to minimize runoff to abutting properties.

2) Step Two: Locate the House Sites. Locate potential building areas that take into account areas identified in step one and information on topography and soils.

3) Step Three: Design Street Layout and Trails or Sidewalks.

a. Locate proposed streets and proposed trails or sidewalks in the development.

b. Incorporate wildlife -suitable culverts such as square or box culverts with a natural surface bottom to minimally disrupt wildlife habitat and passage.

c. Locate trails to connect with existing trail systems and provide sidewalks when necessary to connect with existing sidewalks and ensure pedestrian safety.

4) Step Four: Draw Lot Lines. Lot lines shall delineate boundaries of individual lots and shall be reasonably configured to provide clarity of ownership and ample space for the location of wells, septic systems, and other utilities as well as a building envelope for a single family home and a driveway. Driveway locations shall be shown on all plans.

K. DEFINITIONS

1) Adjusted Tract Acreage: The area of a parcel of land that remains after the Primary Conservation Areas have been subtracted. Note that it may contain Unbuildable Land – that is, land, for example, that was not buildable in the Parent Lot and that was not included in Conservation Open Space Areas.

2) Buildable Area or Buildable Land: The land area remaining from the Adjusted Tract Acreage when all Unbuildable Land is subtracted. It is the acreage on which density shall be based for both conventional and Conservation Subdivisions.

3) Common Open Space: Land within or related to a Conservation Subdivision development that is not individually owned, but may be fractionally owned by individual members of the development, and that is designed and intended for the common use or enjoyment of residents of the development or the public. Common Open Space is distinct from and does not include Conservation Open Space.

4) Conceptual Consultation: Non-binding discussions between a project developer and the Planning Board as provided in RSA 676:4 II. Conceptual consultation allows Board members to voice their concerns and suggestions about a proposed project without the necessity of providing formal public notice and is not subject to the normal time limitations on Planning Board review and approval of subdivision applications.

5) Conservation Open Space: Land in a Conservation Subdivision development site that is permanently set aside for public or private uses and shall never be developed. All lands within Conservation Open Space are required to be protected by both a permanent conservation easement and deed restrictions that prohibit further subdivision and development and that set other standards safeguarding the site’s special resources from changes that are not consistent with the permanent conservation purposes of this Conservation Subdivision ordinance. Primary Conservation Areas are not included in the term “Conservation Open Space.”

Conservation Open Space in a Conservation Subdivision shall equal at least 50% of the Buildable Area or Buildable Land of the Parent Lot being subdivided under this Article.

6) Conventional Subdivision Plan: Residential subdivision in which the Parent Lot is divided into house lots and streets, with the only open space typically being undevelopable wetlands, steep slopes, floodplains, and stormwater management areas.

7) Density or Maximum Density: The maximum number of house lots into which a parcel may realistically be subdivided under restrictions in the underlying zoning district. For purposes of calculating Maximum Density under a Conventional Subdivision Plan, applicant shall prepare, and the Planning Board shall decide whether to accept results of, either (a) a Yield Plan or (b) a Maximum Density Calculation.

8) Design Review: As provided in RSA 676:4 II, non-binding discussions beyond conceptual and general discussions that involve more specific design and engineering details than Conceptual Consultation. Design Review may take the form of a visit to the site. The applicant, holders of conservation, preservation, or agricultural preservation restrictions, abutters, the public, every engineer, architect, land surveyor or soil scientist whose professional seal appears on any plat submitted to the planning board shall be notified by certified mail, mailed at least 10 days prior to Design Review.

9) Homeowners Association: A private nonprofit association that is established by the developer to manage and support activities of the Conservation Subdivision. Membership in the association shall be mandatory for property owners in the Conservation Subdivision. Individual owners share common interests in open space and/or facilities and are responsible for preserving, managing and maintaining the common property, Common Open Space, and for enforcing certain covenants and restrictions. Articles of Association or Incorporation or any amendments thereto shall be subject to review by Town Counsel and review and approval by the Planning Board. As a condition of approval, the Town of North Hampton shall be granted an Executory Interest in all conservation easements burdening Conservation Open Space in Conservation Subdivisions approved under this ordinance.

10) Low-Impact Recreation: For the purposes of this regulation, this shall include but is not limited to activities such as hiking or birding. It shall not include the creation of formal recreation fields or structures intended for year-round use. For example, ice-skating on a natural pond is permitted, but a year-round ice-skating rink is not.

11) Major Subdivision: A parcel that is subdivided into four or more lots.

12) Maximum Density Calculation: The following mathematical method of determining the maximum number of house lots that could realistically be created on a Parent Lot:

13) Deduct from the Adjusted Tract Acreage all Unbuildable Land.

14) Reduce the resulting acreage by 10% to allow for land required for new streets.

15) Round to the nearest whole number (0.5 rounds to 1).

16) Divide this figure by the minimum lot size allowed in the underlying zoning district.

17) Dividend of “d” above equals the Maximum Density of the Parent Lot for the purposes of Conservation Subdivision.

18) Parent Lot: Any lot of record that existed prior to March 11, 2008, the date on which this ordinance went into effect.

19) Preserved Open Space: Open space protected by conservation easement.

20) Primary Conservation Areas: Land that may not be built on or developed pursuant to Federal, State or local law, which generally includes sensitive areas whose locations are predetermined by the boundaries of wetlands, lands that are generally inundated (under ponds, lakes, creeks, etc.); land within the 100-year floodplain; land that is excessively steep (that is, slopes exceeding 15%); or soils subject to slumping.

21) Protected Natural Resource Areas: Shall be consistent with the policies contained in the Open Space, Recreation, and Environmental Resources elements of North Hampton’s Master Plan, and shall include areas identified by North Hampton’s Conservation Audit and Stewardship Plan, such as, but not limited to: prominent ridgelines, important streams, mature woodlands, aquifer recharge areas, areas with highly permeable (‘excessively drained’) soil, significant wildlife habitat areas, important upland forest, meadows, pastures, farm fields, archaeological or cultural assets, water quality protection areas, and sections of an ecologically connected matrix of natural areas significant for wildlife habitat.

22) Sketch Plan: A lightly drawn conceptual sketch provided by the applicant at the earliest possible time, well before formally engineered plans are drawn up.

23) Secondary Conservation Areas: A broad category of open space determined by the Planning Board that may include mature woodlands, prime farmlands, sites of historic, archaeological or cultural interest, or connections to greenways or trails. In delineating Secondary Conservation Areas, priorities shall involve determining more special, unique, irreplaceable, environmentally valuable, historic, or scenic characteristics of the site.

24) Stream Corridors: Areas of land alongside streams designated for public or private access.

25) Tract: An area, parcel, site, piece of land, or property, which is the subject of a subdivision or development proposal and application.

26) Unbuildable Land: Any land area, in addition to a Primary Conservation Area, that is unsuitable for building such as, but not limited to, wetlands, excessively steep slopes (that is, slopes exceeding 15%), rock outcroppings, pre-existing septic fields, pre-existing rights-of-way and utility easements, land under pre-existing permanent easement that prohibits future development, and footprints of common recreational facilities.

27) Yield Plan: A plan submitted by the applicant showing a feasible Conventional Subdivision Plan conforming to all requirements of the specific underlying zoning district in which the property is located. Such plans shall be conceptual in nature and are not intended to require significant engineering costs– that is, engineering costs that are customary for preparing a formal application for subdivision review by the Planning Board. They shall consist of conventional lot and street layouts, shall conform to the Town’s regulations governing lot dimensions, buildable land, street design and, if appropriate, parking. The yield plan shall contain information about soil types as well as steep slopes that would limit development. The purpose of the Yield Plan is to determine the maximum number of house lots that could realistically be created on a tract.

ARTICLE XXI

EXISTING ORDINANCES

Nothing contained in this ordinance shall be construed as repealing or modifying any other ordinance or regulation of this Town, except such as may be specifically repealed or modified by this ordinance, but shall be in addition thereto. Nor shall anything in this ordinance be construed as repealing or modifying any private restrictions placed upon property by covenant, deed, or other private agreement, or any restrictive covenants running with the land to which the Town is a party, but shall be in addition thereto. Whenever provisions of this ordinance differ from those prescribed by any statute, other ordinance or other regulation or restriction, that provision which imposes the greater restriction or the higher standard shall govern.

417.13 PENALTY

Every person, firm or corporation violating any of the provisions of this ordinance shall be subject to all penalties and remedies available under applicable law, including but not limited to RSA 676:17 as same may be amended from time to time.

417.14 SAVING CLAUSE

If any Article, section, sub-section, sentence, clause or phrase of these regulations is for any reason held to be unconstitutional or invalid, such decision shall not affect the remaining portions of these regulations.

Section 418 Inclusionary Housing Ordinance

418.1 Purpose.

The Town of North Hampton has a legal and moral responsibility to provide its “fair share” of “workforce housing” as defined under RSA 674:58-61. The purposes of this Article are as follows:

To provide, over time, the town’s “fair share” of “workforce housing,” as determined on the basis of the Rockingham Planning Commission’s “Regional Housing Needs Assessment” and the Rockingham Planning Commission’s “Regional Fair Share Analysis,” both published from time to time, and data about the cost of housing in town relative to income standards defined under RSA 674:58-61;

A. To encourage and provide “realistic and reasonable opportunities” for the development of “workforce housing” as defined in RSA 674:58-61;

B. To ensure the continued affordability of workforce-housing dwelling units for home ownership and rental by low to moderate income households that are developed under provisions of this Article;

C. To meet goals related to housing set forth in the town’s Master Plan; and

D. To comply with the requirements of Chapter 299, Laws of 2008, an act establishing a mechanism for expediting relief from municipal actions which deny, impede, or delay qualified proposals for workforce housing (RSA 674:58-61).

In the course of implementing this Article, the Town of North Hampton has considered the region’s affordable housing needs as described in the Rockingham Planning Commission’s Housing Needs Assessment and the Rockingham Planning Commission’s Regional Fair Share Analysis.

418.2 Authority.

A. This Article is an innovative land use control provision adopted under the authority of RSA 674:21, including the conditional use permit provision of RSA 674:21, II; and is intended as an “Inclusionary Zoning” provision as defined in RSA 674:21(I)(k) and 674:21(IV)(a), as well as RSA 672:1, III-e, effective July 2009, which states:

All citizens of the state benefit from a balanced supply of housing which is affordable to persons and families of low and moderate income. Establishment of housing which is decent, safe, sanitary and affordable to low and moderate income persons and families is in the best interests of each community and the state of New Hampshire, and serves a vital public need. Opportunity for development of such housing shall not be prohibited or unreasonably discouraged by use of municipal planning and zoning powers or by unreasonable interpretation of such powers.

B. The Planning Board may adopt regulations, in addition to or instead of existing Site Plan Review and Subdivision Regulations, needed to implement this Article, including but not limited to regulations that assure that applications for affordable workforce housing do in fact provide such housing and that ensure that such housing approved under this article remains affordable.

418.3 Applicability.

A. Provided that the proposed development meets reasonable environmental standards and conditions for use of the land – including but not limited to standards and conditions for septic systems, wells for potable water, and storm water management -- development in accordance with the provisions of this Article is permitted as a conditional use in the following districts and only in these districts:

1. Industrial-Business/Residential District (“I-B/R”)

2. R-1 High Density Residential District

Taken together, these districts comprise a majority of the land area of North Hampton that is zoned to permit residential use.

B. Permitted Uses:

1. I-B/R District: Single-family, duplexes, multi-family and manufactured housing or a mix of housing types within the same development, or a mix of commercial and multi-family housing are permitted in an application under this Article. In this respect, provisions of this article take precedence over conflicting provisions of the underlying district in which the development is approved.

2. R-1 High Density Residential District: Single-family housing (including manufactured housing), duplexes, or a mix of these housing types within the same development are permitted in an application under this Article. In this respect, provisions of this article take precedence over conflicting provisions of the underlying district in which the development is approved.

C. Appeal. Any person aggrieved by a Planning Board decision that constitutes a denial of a Conditional Use Permit due to noncompliance with one or more of the provisions of this ordinance may appeal that decision to the Superior Court, as provided for in RSA 677:15. A Planning Board decision on the issuance of a Conditional Use Permit cannot be appealed to the Zoning Board of Adjustment (RSA 676:5 III).

418.4 Procedural Requirements/ Applicant

A. Notice of Intent to Build Workforce Housing. Any person who applies to the Planning Board for approval of a development intended to qualify as workforce housing under this Article shall file a written statement of such intent as part of the application.

B. Waiver. Failure to file such a statement shall constitute a waiver of the applicant’s rights under RSA 674:61 to use the accelerated appeal mechanism and to challenge the cost of conditions of approval, but shall not preclude an appeal under other applicable laws.

C. Appeal. In any appeal where the applicant has failed to file the statement required by this section, the applicant shall not be entitled to a judgment by a court on appeal that allows construction of the proposed development, or otherwise permits the proposed workforce housing development to proceed despite its nonconformance with the municipality’s ordinances or regulations.

418.5 Planning Board Procedural Requirements

A. Notice of conditions. If the Planning Board approves an application to develop workforce housing subject to conditions or restrictions, within 144 hours (seven days) of that decision it shall notify the applicant in writing of such conditions and restrictions and give the applicant an opportunity to establish the cost of complying with those conditions and restrictions and the effect of compliance on the economic viability of the proposed development. The Board’s notice to the applicant of the conditions and restrictions shall constitute a conditional approval solely for the purpose of complying with the requirements of RSA 676:4 I (i). It shall not constitute a final decision for any other purpose, including the commencement of any applicable appeal period.

B. Submission of evidence to establish cost of complying with conditions. Upon receiving notice of conditions and restrictions as described above, the applicant may submit evidence to establish the cost of complying with the conditions and restrictions and the effect on economic viability within 60 days. Upon receipt of such evidence, the Board shall allow the applicant to review the evidence at the Board’s next meeting for which 10 days notice can be given, and shall give written notice of the meeting to the applicant at least 10 days in advance. At such meeting, the Board may also receive and consider evidence from other sources. The Board may affirm, alter, or rescind any or all of the conditions or restrictions of approval after such meeting.

C. Final decision. The Board shall not issue its final decision on the application before such meeting, unless the applicant fails to submit the required evidence within the period designated by the Board, in which case it may issue its final decision any time after the expiration of the period. If an applicant notifies the Board in writing at any time that the applicant accepts the conditions and restrictions of approval, the Board may issue its final decision without further action under this paragraph.

D. Appeals. Any person who has filed the written notice and whose application to develop workforce housing is denied or is approved with conditions or restrictions which have a substantial adverse effect on the viability of the proposed workforce housing development may appeal the municipal action to the superior court under RSA 677:4 or RSA 677:15 seeking permission to develop the proposed workforce housing.

418.6 Definitions

A. Fair share: “Fair share” means the percentage of dwelling units of specified types under RSA 674:58-61 that are required for the Town of North Hampton to demonstrate that the Town is providing the number of units of each type as indicated by the Rockingham Planning Commission’s Regional Fair Share Analysis.

B. Affordable: “Affordable” means housing with combined rental and utility costs or combined mortgage loan debt service, property taxes, and required insurance that do not exceed 30 percent of a household’s gross annual income.

C. Multi-family housing: “Multi-family housing” for the purposes of this Article, means a building or structure containing five (5) or more dwelling units with at least two (2) bedrooms in 50 percent of the units, with no more than 20 percent of those units having restrictions against children and with each unit designed for occupancy by an individual household.

D. Reasonable and realistic opportunities for the development of workforce housing: Opportunities to develop economically viable workforce housing within the framework of the Town’s ordinances and regulations adopted pursuant to this Article and consistent with RSA 672:1, III-e.

E. Workforce housing/owner occupied: Housing that is intended for sale and is affordable by a household with an income of no more than 100 percent of the median income for a four (4)-person household for the Portsmouth-Rochester HUD Metropolitan Fair Market Rent Area (“HMFA”) or county in which the housing is located as published annually by the United States Department of Housing and Urban Development. Such dwelling units shall have at least two (2) bedrooms in 50 percent of the units, with no more than 20 percent of those units having restrictions against children and with each unit designed for occupancy by an individual household.

F. Workforce housing/renter occupied: Rental housing that is affordable by a household with an income of no more than 60 percent of the median income for a three (3)-person household for the Portsmouth-Rochester HMFA as published annually by the United States Department of Housing and Urban Development. Housing developments that exclude minor children from more than 20 percent of the units, or in which more than 50 percent of the dwelling units have fewer than two bedrooms, shall not constitute workforce housing for the purposes of this Article.

G. Area Median Income (AMI): The median income of the greater region, either the HUD Metropolitan or Non-Metropolitan Fair Market Rent Area to which the Town of North Hampton belongs, as is established and updated annually by the United States Department of Housing and Urban Development. Income considers both wage income and assets.

H. Market Rate Housing: Any units within a development, whether the unit is to be owner or renter occupied, that are intended to be available for sale or occupancy at the prevailing market value in the area for comparable real estate transactions – as determined, if necessary, by a certified residential real estate appraiser.

418.7 Density

A. A site plan or subdivision plan that guarantees a percentage of workforce housing units for each type of workforce housing unit proposed that is equal to or greater than the Town’s “fair share” of workforce housing, expressed as a percentage of total dwelling units in Town, will be granted relief from the minimum lot size, frontage, front-yard, side-yard and rear-yard setback requirements in the underlying district.

B. When applying the Town’s “fair-share” percentage to the total number of units proposed in an application under this Article results in a number that is not a whole number, the required number of workforce housing units shall be rounded up to the next whole number.

C. Relief from minimum lot size, frontage, front-yard, side-yard and rear-yard setback requirements in the underlying district will be granted as follows:

1. Minimum lot size for single-family dwellings, including manufactured housing units, under this Article shall be one-third (1/3) acre of contiguous upland as long as soil conditions permit the siting of requisite septic systems and wells within the decreased lot size

2. Minimum lot size for duplexes under this Article shall be one-half (1/2) acre of contiguous upland as long as soil conditions permit the siting of requisite septic systems and wells within the decreased lot size.

3. Minimum lot size for qualifying multi-family housing (cf. Section V.C above) – including both rental units and units under condominium ownership -- under this Article shall be one (1) acre of contiguous upland for the first dwelling unit and an additional one-quarter (1/4) acre of contiguous upland for each additional unit so long as soil conditions permit the siting of requisite septic systems and wells within the proposed lot size. Thus, the minimum lot size for a qualifying multi-family housing proposal under this Article is two (2) acres.

4. Minimum lot size for qualifying multi-family housing (cf. Section V.C above) in mixed-use developments in the Industrial-Business Residential District –- including both rental units and units under condominium ownership -- under this Article shall have minimum lot sizes as follows:

a. If the multi-family housing units are in one or more discrete buildings or attached to other buildings on the site and at ground level, in addition to the lot-size requirements for those other uses of the site, the minimum lot area required for such housing units shall be one (1) acre of contiguous upland for the first dwelling unit and an additional one-quarter (1/4) acre of contiguous upland for each additional unit so long as soil conditions permit the siting of requisite septic systems and wells within the parcel on which the development is proposed. Thus, the minimum lot area requirement on the proposed site for a qualifying mixed-use, multi-family housing proposal of this type under this Article is two (2) acres in addition to lot-size requirements for other uses of the lot.

b. If the multi-family housing units are on the upper floor or floors of buildings used for other purposes on the site, in addition to the lot-size requirements for those other uses of the site, the minimum lot area for such housing units shall be one-half (1/2) acre of contiguous upland for the first dwelling unit and an additional one-quarter (1/4) acre of contiguous upland for each additional unit so long as soil conditions permit the siting of requisite septic systems and wells within the parcel on which the development is proposed. Thus, the minimum previously undeveloped lot area on the proposed site for a qualifying mixed-use, multi-family housing proposal of this type under this Article is one and one-half (1 1/2) acres in addition to lot-size requirements for other uses of the lot.

5. Minimum frontage for lots for all types of workforce housing units shall be 100 feet.

6. Minimum front-yard, side-yard, and rear-yard setback requirements for any structure approved under this Article shall be 15 feet.

418.8 General Requirements of Workforce Housing Units

A. Architectural compatibility of all units. The dwellings qualifying as workforce housing shall be compatible in architectural style and exterior appearance with the market-rate dwellings of similar type, (i.e., workforce and market-rate multifamily units, workforce and market-rate single family homes) in the proposed development. The workforce units should be interspersed throughout the overall development and not concentrated in a separate area of the development. Workforce housing units shall be mixed with, and not clustered together or segregated in any way from market-rate units.

B. Phasing. The phasing plan for the development shall provide for the development of workforce housing units concurrently with the market-rate units, and occupancy permits for no more than 80 percent of all units shall be issued until all workforce housing units are certified for occupancy.

C. Use of units. No workforce housing units of any type, owner-occupied or rental, that are approved under this Article shall be leased or sublet to anyone other than the qualified owner or renter. All such units are intended for occupation as their primary residence by individuals or families whose incomes qualify them to purchase or rent these units and who have been properly qualified according to the provisions of this Article, Sections IX, A-B, below.

D. Expansion or Modification of Units. Expansion or modification of workforce housing units approved under this Article is permissible. However, two conditions shall apply in all cases:

1. 1.Such expansion or modification shall not exempt the owner from continuing to meet applicable affordability standards; and

2. 2.Such expansion or modification shall meet all Inclusionary Housing Ordinance restrictions current at the time it is proposed.

418.9 Affordability.

A. Affordability Monitoring Agent. As a condition of approval, the applicant shall negotiate and submit written evidence that an agreement has been executed with a qualified third party, acceptable to the Planning Board, as Monitoring Agent for the development.

1. The Monitoring Agent shall review and approve all documentation required to ensure that affordability provisions of this Article are fully enforced and maintained initially and over the duration of the required period of affordability. 2. Said Agent shall not be changed without prior approval of the Planning Board.

3. Should said Agent cease to provide such services for any reason without due prior notice, the applicant, his/her successor or designee shall promptly notify the Planning Board and propose a successor Monitoring Agent for approval of the Board.

4. Said Agent shall submit annually a written report to the applicant and Planning Board that characterizes all transactions that have been reviewed by the Agent and states the sales prices or lease prices of all units subject to the Agent’s purview.

5. Said Agent shall submit annually written certification that, during the reporting period, all units under his or her purview have continuously met affordability standards under this Article.

B. Certification of Income Levels. To ensure that only eligible households purchase or rent and occupy the designated workforce housing units in any development approved under this Article, the purchaser or renter of an affordable unit shall submit to the monitoring agent copies of his or her federal income tax returns for the three years immediately prior to occupancy and written certification that verifies that his or her annual income level, combined with household assets, does not exceed the maximum level as established by this ordinance.

1. The tax returns and written certification of income and assets shall be submitted to the monitoring agent engaged by the developer of the housing units prior to the execution of any lease for any workforce-housing rental unit or execution of a purchase and sale agreement for any workforce-housing owner-occupied unit.

2. A copy of the tax returns and written certification of income and assets shall be submitted to the monitoring agent, not less than 30 days prior to the transfer of title of an owner-occupied unit or not less than 14 days prior to occupancy by the lessee of a rental unit.

C. Assurance of Continued Affordability (Owner-occupied Units). Approval of applications to develop owner-occupied workforce-housing units offered for sale shall require that a lien, granted to the Town of North Hampton, be placed on each workforce-housing unit.

1. The initial value of the lien shall be equal to the difference between the fair market value of the unit, as determined by a certified residential real estate appraiser, and its reduced affordable sale price under this Section 418, which is indexed according to the qualifying income standards.

2. The Town’s lien shall be increased over its term at a compound rate equal to the Consumer Price Index (CPI) for Shelter in the Boston metropolitan area.

3. Future maximum resale values shall be limited to the then current affordability standards for workforce housing.

4. In the event that the owner of any owner-occupied workforce-housing unit does not comply with provisions of Section 418.9.C.1-3 of this Section 418, the Town at its sole discretion may exercise its lien on the unit.

5. The combination of maintenance of the Town’s lien and adherence to this Section 418’s standards of affordability for workforce housing shall remain in force until such time as two criteria are satisfied, as of the filing date of any application for lien release:

a. “Fair-share” criterion. The Town has fully met its requirement for providing its “fair share” of workforce housing, and

b. “First-in-first-out” criterion. The unit in question is the first among units of its type that were approved as workforce-housing units under this Section 418, or the owner of all units that were approved earlier than the unit in question have:

i. Waived their right to mark their units to market prices or

ii. Not applied for lien release.

6. No lien release under Section 418.9.C.5 shall be granted until an owner has made an application to the Planning Board requesting a lien release and the Planning Board determines in its sole discretion that criteria (a) and (b) of paragraph Section 418.9.C.5 have been fully satisfied.

D. Assurance of Continued Affordability (Workforce-housing Rental Units).

1. Any increases in rent for workforce-housing rental units shall be limited to an amount that does not increase the rent to a level that exceeds the then current affordability limit under this Section 418.

2. Approval of applications to develop workforce-housing rental units shall require that a lien, granted to the Town of North Hampton, be placed on each building that includes such units.

a. The initial value of the lien shall be equal to the present value over a period of 20 years of the difference between the fair-market-value rental of the units and their reduced affordable rental under this Section 418.

b. The Town’s lien shall be increased over its term at a compound rate equal to the annual rate of change in the difference between fair-market-value rental and affordable rental of the units.

c. In the event that the owner of any workforce-housing rental unit does not comply with provisions of Section 418.9.D.1 of this Section 418, the Town at its sole discretion may exercise its lien on the building in which this unit was approved.

3. This Section 418’s standards of affordability for workforce-housing rental units shall remain in force until such time as two criteria are satisfied, as of the filing date of any application for lien release:

a. “Fair-share” criterion. The Town has fully met its requirement for providing its “fair share” of workforce housing, and

i. Waived their right to mark their units to market prices or

ii. Not applied for lien release.

4. No lien release under Section 418.9.D.3 shall be granted until an owner has made an application to the Planning Board requesting a lien release and the Planning Board determines in its sole discretion that criteria (a) and (b) of paragraph Section 418.9.D.3 have been fully satisfied.

5. As provided under Section 418.9.A.5 above, the Monitoring Agent shall certify at least annually that this Section 418.9.D is being enforced for all units under the Agent’s purview.

6. Transfer of ownership. Conveyance of ownership of any rental units approved under this Section 418 shall require prior written approval of the Planning Board to ensure that any new owner understands the terms of this Section 418 and agrees to adhere to them. Such approval shall not be unreasonably withheld. A statement of this provision shall be included as a restriction on all deeds for rental units approved under this Section 418.

7. Documentation of restrictions. Deed restrictions, restrictive covenants, and contractual arrangements related to workforce-housing units approved under this Section 418 shall be noted on all plans filed with the Town’s Planning Board and shall be registered at the Rockingham County Registry of Deeds.

418.10 Administration, Compliance, and Monitoring

A. The Planning Board shall be responsible for administration, compliance and ensuring that monitoring requirements are met under this Section 418.

B. Certificate of Occupancy. No certificate of occupancy shall be issued for a workforce-housing unit approved under this Section 418 without written confirmation of the income eligibility of the tenant or buyer of the workforce-housing unit by the monitoring agent and confirmation of the rent or price of the workforce-housing unit as documented by an executed lease or purchase and sale agreement and verified in writing by the monitoring agent.

C. Ongoing responsibility for monitoring the compliance with resale and rental restrictions on affordable units shall be the responsibility of the monitoring agent, as defined in Section VIII.A above.

D. Annual report. The owner of a project containing affordable units for rent shall prepare an annual report certifying that the gross rents of affordable units and the household income of tenants of affordable units have been maintained in accordance with this Section 418. Such reports shall be submitted to the monitoring agent and shall list the contract rent and occupant household incomes of all affordable housing units for the appropriate reporting period.

E. Relationship to other ordinances and regulations. Except as specifically provided herein, no portion of this ordinance shall nullify provisions of the Zoning Ordinance -- including, but not limited to Zoning Ordinance Section 414: Water Resources and Aquifer Protection -- or of any other town ordinances which relate to environmental protection, water supply, sanitary disposal, traffic safety, or fire and life safety protection.

1. Where applicants for affordable housing propose a development of single family homes or mixed single family and multi-family homes, all provisions of the subdivision and site plan regulations shall apply, except as specifically waived by the Planning Board.

2. Where applicants for affordable housing propose a development of multi-family units, the site plan regulations shall apply except as specifically waived by the Planning Board.

418.11 Conflict

If any provision of this ordinance is in conflict with the provisions of other ordinances, except as specifically provided herein, the more restrictive provision shall apply. With respect to provisions relating to lot size, setbacks, or density the provisions of this ordinance shall apply. *3/10/2009

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