Zoning Ordinance Revised 2006

ARTICLE II<= /b>

DEFINITIONS

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307-5   &= nbsp; Word Usage and Interpretation

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For the purposes of this Ordinance, certain words, terms or phrases shall bear the meaning given herein unless the context clearly indicates otherwise; and:

&nb= sp;     A.   words in the present tense in= clude the future;

&nb= sp;     B.   the singular includes the plu= ral and the plural includes the singular;

      C.   terms and words not defined i= n this article but defined in the building code shall have the meanings given ther= ein; and

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      D.   terms and words not defined i= n this article or in the building code shall have the meanings understood in common usage and as defined in standard American dictionaries.

307-6      Definitions=

The foll= owing words have the following meanings for the purposes of this Ordinance.<= /o:p>

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      1.   Aquifer: r= efers to those areas shaded in blue on the United States Geological Survey Map entitled "Saturated Thickness, Transmissivity and Materials of Stratified-Drift Aquifers in the Nashua region, South Central New Hampshire" from the study Hydrogeology of Stratified Drift-Aquifers= and Water Quality in the Nashua Regional Planning Commission Area, South Centra= l New Hampshire (1987) prepared by Kenneth W. Toppin, United States Geological Survey-Water Resources Investigations Report 86-4358, a copy of which is available for inspection at the Pelham Town Hall. [Added by ballot ATM March, 1991]

      2.   Building: = any combination of materials, whether portable or fixed, having a roof, which form a struct= ure for the shelter of persons, animals or property.

      3.   Building, Accessory: a detached building, the use of whi= ch is customarily incidental and subordinate to that of the principal building, and which is located on the same lot as that occupied by the principal building.

      4.   Building, Area: the aggregate of the maximum horizontal cross-section area of all buildings on a lot exclusive of cornices, eaves, gutters, chimneys, unenclo= sed porches, bay windows, balconies and terraces, expressed as a percentage of = the total lot area.

      5.   Building, Attached:&nbs= p; a building having any portion of one (1) or more walls in common with adjoining buildings.

      6.   Building, Detached:&nbs= p; a building not sharing any walls or portions of any walls with adjoi= ning buildings.

      7.   Building, Height: the vertical distance from the grade to the highest elevation of the roof of the highest story. [Added 6-20-73 by ballot by an STM, A= rt. 1]

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      8.   Building, Principal:&nb= sp; a building in which is conducted the principal use of the lot on whi= ch it is located.

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      9.   Dwelling Unit: one (1) or more rooms arranged for living= and sleeping purposes with cooking and sanitary facilities for the use of one (= 1) or more individuals living as a single housekeeping unit.=

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      10. Frontage: the length of the lot bordering on= the public right-of-way and serves as the access to the lot.<= /p>
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      11. High-Intensity Soil Survey (HISS): a= soils map of a parcel of land being considered for development on a perimeter sur= vey, with a scale of one (1) inch equals fifty (50) feet, where soils are identi= fied and mapped in accordance with the high-intensity soils mapping standards as adopted by the Hillsborough County Conservation District.=

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      12. Home Occupation: an occupa= tion conducted entirely within the dwelling unit or accessory structure of the resident property owner. It is clearly a secondary use of the property which does not adversely affect the residential character of the neighborhood.= It is in compliance with the criteria established for home occupations.

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      13. Home Produce and Products: includes everything of an agriculture nature grown, produced, conditioned or otherwise carried on the property of the resident, also such articles as are manufactured or altered by members of t= he household of the bona fide resident of any property. [Added 1-5-60= by ballot by an STM, Art 1]

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      14. Impact Fee: Under RSA 674:21= V. a fee or assessment imposed upon a development, including subdivision of land, building construction or other land use activity, in order to help meet fut= ure needs that will be impacted by the development. Impact Fees are recommended= by the CIP, approved by the Planning Board and established by the Board of Selectmen. [Added 3-14-06 ATM by b= allot, Art. 2] The full Impact Fee enabling Ordinance is a stand alone document available from the Planning Department.

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      15. Junk: any old discarded metal, glass, pa= per, rubber, textiles, rubbish, trash or junked, dismantled, or wrecked motor vehicles or motor vehicle parts.

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      16. Junk Yard: an establishment or place of business which is used for stori= ng, buying or selling junk but not including approved solid waste disposal facilities or registered motor vehicle dealerships.

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      17. Junk Yard, Motor Vehicle: = any place of storage or deposit, whether in connection with another business or not, which has two (2) or more unregistered motor vehicles which are no lon= ger fit for legal use on public highways or any combination of motor vehicle pa= rts or materials, the sum of which is equal to or greater than two (2) or more motor vehicles.

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      18. Manufactured Housing: any structure transportable in one or more sections, which, in the traveling mode, is eig= ht (8) body feet or more in width and forty (40) body feet or more in length, = or when erected on site, is three-hundred and twenty (320) square feet or more, and which is built on a permanent chassis and designed to be used as a dwel= ling with or without a permanent foundation when connected to required utilities, which include plumbing, heating and electrical heating systems contained therein. Manufactured housing= does not include presite built housing as defined in subsection S below.

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      19. = ; Nonconforming Use: a building, structure or use of land lawfully existing at the = time of enactment of this chapter and which does not conform to the regulations = of this chapter.

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      20. Permanent Residents: a family s= hall be considered “permanent residents” when they have used any building continuously as a residence for a period of six (6) months or more= .&nb= sp; [Added 1/5= /60 by ballot by a STM, Art. 1]

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      21. Presite Built Housing: any structure designed primarily for residential occupancy which is wholly or on substantial part made, fabricated, formed or assembled in off-site manufacturing facilities in conformance with United States Department of Housing and Urban Development minimum property standards and local building codes, for installation, or assembly and installation, on the building site= . Presite built housing does not inc= lude manufactured housing as defined in subsection P above.

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22.   Right-of-Way: includes = all town, state and federal highways and the land on either side of the same as covered by statutes to determine the width of the “right-of-ways̶= 1;.

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23. Site Specific Soil Maps for New Hampshire and= Vermont, SSSNNE = Special Publication No.

    = 3, June 1997: the most c= urrent standards for site specific soil mapping in accordance with the standards of the National Cooperative Soil Survey and are consistent with the       requirement= s of RSA 485-A, and NH Code of Administrative Rules ENV-Ws 1000. [Added by ballot March 99]

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24. Use, Accessory: a use seco= ndary and subordinate to the principal use of a structure or lot.

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25. = ; Wetland: a wetland is an area that is inund= ated or saturated by surface or ground water at a frequency and duration suffici= ent to support, and that under normal conditions, does support a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include, but ar= e not limited to, swamps, marshes, bogs, and similar areas. Wetlands shall be delineated by either a certified soil scientist or a professional wetland s= cientist according to the Corps of Engineers Wetlands Delineation Manual, 1987, and = the         &= nbsp; Regional Field Indicators for Identifying Hydric Soils in New England, 1995. [Amended by ballot ATM March 1998]<= /o:p>

      26. Yard, Front: a space extend= ing for the full width of a lot between the extreme front line of a building and the nearest side of the right-of-way.

      27. Yard, Rear: the distance fr= om the extreme rear of any building to the nearest point on any rear lot line.

      28. Yard, Side: the distance fr= om the extreme side of any building to the nearest point on any side lot line.

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ARTICLE III=

GENERAL PROVISIONS=

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307-7   &= nbsp; Conformity Required

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No build= ing or land shall hereafter be used or occupied and no building or part thereof sh= all be erected, moved or altered unless in conformity with the regulations specified in this Ordinance for the district in which it is located.

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= 307-8   &= nbsp; Nonconforming Uses

Any nonconforming use may continue in its present use except that any nonconfor= ming use of land or buildings may not be:

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    = A.   Changed to another nonconform= ing use.

    = B.   Re-established after disconti= nuance for one (1) year, except to a conforming use.

    = C.   Extended.

    = D.   Rebuilt after damage exceeding fifty percent (50%) of its value.

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= 307-9   &= nbsp; Number of buildings for dwellings per lot. [Added 3-= 14-61 by ballot by the ATM, Art. 15]

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There sh= all be constructed on each lot not more than one (1) building for dwelling purpose= s.

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307-10   = Off-street parking and driveways. [Added= 6-20-73 by ball= ot by an STM, Art. 4; amended 12-5-73 by ballot by an STM, Art. 5: = 3-12-85 by ball= ot by the ATM, Art. 5]

      A.   One- and two- family dwellings shall have two (2) off-street parking spaces for each dwelling unit, plus sufficient off-street parking for visitors and service vehicles.=

      B.   All other land uses, other th= an land used for one- and two-family dwellings, shall provide for adequate pav= ed off-street parking to meet the particularized need of the specific land use. It shall be the duty of = the Pelham Planing Board, in the exercise of its nonresidential site review authority granted by RSA 674:43 and 674:44, to adopt site plan review regul= ations setting forth specific driveway, loading area and parking space requirements for all land uses other than one- and two-family dwellings. These regulations may provide for conditional, contingent, standby, future and phased parking area constructi= on.

      C.   Driveway permits shall be obt= ained from the Planning Board or its designated agent for all new or relocation driveways that enter onto Class V or Class VI streets.

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307-11 Ruins to be removed [Added 1-5-60 by ballot= by an STM, Art.1]

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No owner= or occupant of buildings in any district shall permit a fire or other ruins to= be left but shall remove the same within one (1) year.

307-12 Dimensional Requirements=

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The following dimensional requirements apply to all buildings related or accessory to the uses identified in Table 1, unless otherwise indicated, except that:

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      A.   All buildings for uses not indicated in Table 1, below, that are located within the residential distri= ct shall conform to the minimum requirements for single-family dwellings;=

      B.   All buildings for uses not indicated in Table 1, below, that are located within a business district sh= all conform to the minimum requirements for commercial uses;<= /p>

      C.   All buildings for uses not indicated in Table 1, below, that are located within an industrial district shall conform to the minimum requirements for industrial uses, and

      D.   All buildings for uses not indicated in Table 1, below, that are located within in any other district shall conform to the minimum requirements for single-family dwellings unless otherwise indicated.    = ;

      E.   Garages, decks, and sheds and= other accessory uses to single and two-family dwellings shall be setback a minimu= m of thirty (30) feet to the front yard and fifteen (15) feet to the side and re= ar yards. Sheds used for garden = tools and yard equipment whose external dimensions total one hundred (100) square feet or less in area and are not more than eight (8) feet in height, shall = be exempt from this regulation. = This section shall not apply to home occupations under the residential zone. Setbacks for home occupations shall adhere to Section 307-12 of the Zoning Ordinance.

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<= span style=3D'font-size:12.0pt;mso-bidi-font-size:10.0pt;font-family:Arial;mso-b= idi-font-family: "Times New Roman"'>TABLE 1 - Table of Dimensional Requirements [Amended 3-29-06 to include Senior and Elderly housing requirements and setbacks for properties abutting cemeteries per NH RSAs]

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Minimum Lo= t Size

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Building Setbacks

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(sq. ft.)

Frontage

Front

Side

Rear

Single= -Family Dwelling

43,560=

200'

30'

15'***= *

15'***= *

Two-Fa= mily Dwelling

87,120=

200'

30'

15'***= *

15'***= *

Multi-= Family Dwelling

130,68= 0*

200'

40'**<= o:p>

30'**<= o:p>

30'**<= o:p>

Senior= & Elderly Developments

217,80= 0***

200= 217;

30R= 17;

30R= 17;

30R= 17;

Commer= cial Uses

60,000=

200'

40'**<= o:p>

30'**<= o:p>

30'**<= o:p>

Indust= rial Uses

87,120=

200'

40'**<= o:p>

30'**<= o:p>

30'**<= o:p>

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*    = ;        Multi-family dwellings shall have an additional 10,000 sq. ft. of lot area for each bedr= oom in excess of ten.

**   &nbs= p;      There shall be between the nearest right-of-way and the extreme front of all buildings, other than single-or two-family dwellings, a distance equal to n= ot less than three (3) times the height of the building, but not less than for= ty (40) feet for all buildings other than single- or two-family dwellings, the= re shall be provided side yard and rear yard setbacks of not less than two (2) times the height of the building, but not less than thirty (30) feet.<= /o:p>

***   &nb= sp;    Senior & Elderly Housing developments must have at least five (5) acres of contiguous, non-wetland area.

****       NH R= SA 289:3 stipulates that setbacks from structures/excavation to cemetery boundaries shall be a minimum of 25 feet because Pelham’s zoning does= not specify setbacks to cemeteries.

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307-13   = Computing Minimum Lot Sizes.

[Added 3-4-75 by ballot by the ATM, Art. 4; amended 3/95 ATM; Amended March 8, 2005 ATM]

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The inte= nt is to provide for an area that adequately accommodates the building site and a= ll required utilities such as water supply and sewage disposal for on-site sep= tic tanks and leach fields; this shall include both a primary and an alternate leach field location.

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The foll= owing land shall not be counted in computing minimum lot size:

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1. Land areas having wetland soil sym= bols and classifications, using the High Intensity Soil Survey soil classificati= on system. [Amended 3-4-75 ATM]

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2. Land areas that would be flooded b= y a one hundred year flood, the scope of said one year flood    to be determined by the= United States Department of Housing and Urban Development and the Federal Insurance Administration. [Amended 3-4-75 AT= M]

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3. Land = areas in the Recreation, Agricultural and Conservation District cannot be used in computing minimum lot sizes. [Amen= ded 3-76 ATM, Section 307-19 C 4, Additional requirements for RCA Districts]

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4. Slope= s 25% or greater. [Amended 3-8-05 ATM]

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Land area within a WCD setback may be co= unted toward the minimum lot area. [Amen= ded 3-8-05 ATM]

When com= puting minimum lot sizes, of the total required land area for lot sizing, a minimu= m of 35,000 square feet of naturally occurring usable land area must be contiguo= us. [Amended 3-8-05 ATM]

No lots = which received final Planning Board subdivision approval prior to January 1, 1975, shall be deemed undersized non-conforming lots solely by reason of enactmen= t of this Subsection.

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307-14      Frontage [Amended March 9,= 2004 ATM]

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All lots, except those for the use of industrial buildings, shall have at least two hundred (200) feet of contiguous frontage on a public right-of-way. Lots for the use of industrial bui= ldings may have at least two hundred (200) feet of frontage on a clearly defined, fifty-foot-wide privately owned right-of-way in lieu of frontage on a public right-of-way. Whenever a lot = for the use of an industrial building has its frontage on a privately owned right-of-way, all setback lines will be measured from the edge of the priva= tely owned right-of way.

ARTICLE IV<= /b>

ESTABLISHM= ENT OF DISTRICTS

307-15    Districts Designated

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For the purposes of this Ordinance, the Town of Pelham is divided into the following districts as shown and defined on the Official Zoning Map.

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      = A.   Ge= neral Districts

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&nb= sp;     Full District Name    =             &nb= sp;            =                &= nbsp;           &nbs= p;            &= nbsp;        Short District Name

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&nb= sp;     Residential District............................= ............................................................... R

&nb= sp;     Business District No. One....................= ............................................................. B-1

&nb= sp;     Business District No. Two....................= ............................................................. B-2

&nb= sp;     Business District No. Three..................= ............................................................. B-3

&nb= sp;     Business District No. Four...................= ............................................................. B-4

&nb= sp;     Industrial District No. One....................= ............................................................. I-1

&nb= sp;     Industrial District No. Two....................= ............................................................. I-2

&nb= sp;     Industrial District No. Three..................= ............................................................. I-3

&nb= sp;     Rural..........................................= ...................................................................... Ru

&nb= sp;     Recreation-Conservation-Agricultural Districts...........................= ......................... RCA

    = B.   Ov= erlay Districts

    = Full District Name    =             &nb= sp;            =             &nb= sp;            =             &nb= sp;            Short District Name

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      Aquifer Conservation District...............= ............................................................. ACD

      Wetlands Conservation District...............= .......................................................... WCD

      Floodplain Conservation District...............= ........................................................ FCD

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= 307-16   = Districts Defined

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      A.   Residential --- (R): The R district is established to p= rovide for the development of single and two-family (duplex) residences and custom= ary accessory uses and structures and complimentary nonresidential uses within a rural/residential environment. The district is intended to provide a diversity of housing types, community facilities, recreational uses and other related uses while protecting the town's rural character and natural resource base.

      B.   Business --- (B-1, B-2, B-3 & B-4): The B distric= ts are established to provide opportunities for the development of general retail = and wholesale commercial uses, services, office uses, apartments and customary accessory uses and structures in a manner compatible with the rural /residential character of the town.

      C.   Industrial --- (I-1, I-2 &= amp; I-3): The I districts are established to provide for light industrial development, warehousing, limited business and commercial uses and customary accessory uses and structures. The district is intended to be nonresidential in character.

      D.   Rural --- (Ru): The Ru district is designed to pro= vide for and encompass a wide diversity of land uses. All uses permitted in the other districts are permitted in the Ru district.

      E.   Recreation-Conservation-Ag= ricultural (RCA 1-7): RCA districts are intended to protect important natural resources such as prime wetlands from potentially adverse impacts related to incompatible development and to protect and provide opportunities for the continuation of traditional rural land uses related to agriculture, recreat= ion and conservation.

    =

      F.   Aquifer Conservation Distr= ict (ACD): The ACD is an overlay district intended to protect Pelham's groundwater resources from pollutants generated by inappropriate land uses = in order to protect the town's existing and future water supply.

      G.   Wetlands - (WCD): The Wetlands Conservation district= is an overlay district which is established to protect surface and groundwater resources, wildlife habitats and to preserve natural drainage patterns and flood water storage areas. The district strictly limits land uses and construction activities which are otherwise permitted in the underlying districts.

      H.   Floodplain Conservation Di= strict (FCD): The FCD is an overlay district intended to minimize the dangers = of flooding to life and property by strictly limiting and controlling developm= ent within designated floodplain areas.

= 307-17   = Zoning District Boundaries

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Where appropriate and unless otherwise indicated, zoning district boundaries show= n on the zoning map are the center lines of streets, railroads and power line rights-of-way, the middle of the channel of waterways or other water bodies= , or the Town Line. Any boundary w= ithin ten (10) feet of a property line is considered to coincide with such proper= ty line. Where no distance is st= ated on the Zoning map, the distance is be determined by the scale on the Map. In any instance where there is dou= bt as to the location of a zoning district, the Zoning Board of Adjustment (ZBA) shall determine the location of such boundary consistent with the intent of this Ordinance and the Zoning Map.

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ARTICLE V

PERMITTED USES

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307-18   = Principal Permitted Uses

[Amended by ballot ATM March 1999; Amended by ballot ATM 3-14-06]

Only the following principal uses are permitted.&nb= sp;

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<= span style=3D'font-size:12.0pt;mso-bidi-font-size:10.0pt;font-family:Arial;mso-b= idi-font-family: "Times New Roman"'>TABLE 2

Uses

R

B

I

Ru

RCA

Single-family dwellings

P

P

P

Two-family dwellings

P

P

P

Multi-family dwellings

P

Accessory Dwelling Units

S

S

S

Elderly Housing

P

P

P

Agricultural Uses

P

P

P

P

P

Home Occupations

S

S

S

Fraternal organizations & membership clubs

S*

P

P

P

Churches and other places of worship

S

P

P

P

Public or private primary, secondary, business or trade schools, colleges, preschools and daycare centers

S

P

P

P

Hospitals and clinics

S

P

P

P

Country clubs, hunting, fishing swimming, tennis or golf clubs.=

S

P

P

P

P

Convalescent or nursing homes

S

P

S

P

Health, fitness or athletic membership club

P

P

P

General retail or wholesale trade

P

P

P

Food & Beverage service establishments

P

P

P

Hotels, motels, inns, rooming houses or tourist cabins

P

P

P

Establishments selling new boats, trailers, aircraft, and related products

P

P

P

Establishments selling new or used (retail) automobiles

P*

Business & professional offices

P

P

P

Theaters & cinemas

P

P

P

Banquet & function halls

P

P

P

Commercial recreation such as bowling alleys, video arcades, or miniature golf<= /o:p>

P

P

P

Light industry & manufacturing

P

Warehousing

P

Private Utility Structures; i.e. windmills, watermills, free-standing solar collectors, etc. that generate power for use on same site [Added 3-14-06 by ballot at ATM, Ar= t. 3]

P**

P**

P**

P**

P**

Junkyards and solid waste disposal facilities

S

P   =3D=     Permitted Use

P* =3D    Permitted Use as define= d and delineated in Section 307-19D, and reflected in the Town Zoning Map.

P**      =3D        &= nbsp;     Permitted with Planning Board Site Plan Approval, all applicable safety inspections as deemed appropriate by the Planning Board and proper licensing by applicable state and federal agencies [Added 3-14-06 ATM, Art. 3]

S   =3D=     Permitted by special exception only

S* =3D    as defined by RSA 72:23= -a, tax exempt veterans organizations by special exception in=

    =         the Residential District.

307-19   = Permitted Uses -- Special Conditions

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      A.   Accessory Uses & Struc= tures Accessory uses and structures, including garages, tool sheds, parking areas, recreational facilities and other uses that are customary, secondary and incidental to any permitted principal use are permitted in any district wit= hin which the principal use is permitted unless otherwise restricted.

      B.   Noxious, Hazardous or Offe= nsive Uses No use that is noxio= us, hazardous or offensive due to the emission or generation of measurable or discernible levels of noise, smoke, odor, vibration, dust or gas shall be permitted in any district.

      C.   Additional Requirements fo= r RCA Districts The following use restrictions apply only to the RCA districts.<= /span>

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1.   Open space as required by Subdivision Regulations is permitted, but no land area in these districts may be used to satisfy minim= um lot requirements.

2.   Streets, roads and other accessways and utility right-of-way easements, including power lines and pipelines if essential to= the productive use of land not in these districts are permitted, if so located = and constructed as to minimize the detrimental import of such uses upon these districts and if a special exception therefore is granted by the Board of Adjustment.

3.   No residences of any kind and no buildings or struct= ures not necessary to the above uses are permitted.

4.    &= nbsp; No loam,= sand, rock, clay, gravel, fill or other soil shall be removed from these district= s.

D.    Addition= al Requirements for New and Used (Retail) Auto Dealerships. New and used (retail) car dealersh= ips shall be permitted in Business Districts No. 3 and 4, and Business Districts No. 1 and 2 from the most southernly intersection of Pulpit Rock Road and R= oute 38 to the intersections of Atwood Road and Old Bridge Street North (intersections delineated on Town Zoning Map). No new or used (retail) car dealer= ship in the above cited permitted districts may be located closer than two-thous= and (2,000) linear feet of frontage between or adjacent to any other new or used car dealership. For the purpo= ses of this sub-section, “new or used (retail) auto dealership” means = that portion of a lot or structure devoted in whole or part to:



1.    &= nbsp; The sale= of two (2) or more used automobiles;

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2.    &= nbsp; The disp= lay of two (2) or more used automobiles for the purpose of sale;=

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3.    &= nbsp; All new = or used (retail) dealerships will be in conformance with all applicable local = and state regulations. [Added by ballot ATM March 1998]<= o:p>

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307-20   = Sexually Oriented Businesses

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It is the purpose of this Article to establish reasonable and uniform regulations to prevent the concentration of sexually oriented businesses within the Town of Pelham; and, it is the intent to promote the health, safety and general wel= fare of the citizens of the Town of Pelham, and it is the intent of this Article that the regulations be utilized to prevent problems of blight and deterioration which accompany and are brought about by the concentration of sexually oriented businesses; and, the provisions of this amendment have neither the purpose nor the effect of this Article to restrict or deny acce= ss 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 markets; and neither is it the intent nor effect of this article to condone or legitimize the distribution of obscene material.

= 307-21   = Definitions

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A sexual= ly oriented business is any place of business at which any of the following activities is conducted:

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A.&= nbsp; Adult Bookstore or Adult Video Store: A business that devotes more than 15% of the total display, shelf, r= ack, table, stand or floor area, utilized for the display and sale of the follow= ing:

1.   Books, magazines, periodicals, or other printed matt= er, or photographs, films, motion pictures, video cassettes, slides, tapes, records, CD-ROM’s or other forms of visual or audio representations w= hich meet the definition of "harmful to minors" and/or "sexual conduct" as set forth in RSA 571-B:1; or,

2.   Instruments, devices or paraphernalia which are desi= gned for use in connection with "sexual conduct" as defined in RSA 571-B:1, other than birth control devices.= An adult bookstore or adult video store does not include an establishment that sells books or periodicals as an incidental or accessory part of its principal stock and trade and does not devote more than 15% of = the total floor area of the establishment to the sale of books and periodicals.=

B.&= nbsp; Adult Motion Picture Theater: An establishment with a capacity of five or more persons, where for any form of consideration, films, motion pictures, video cassettes, slides or similar photographic reproductions are shown, and in which a substantial portion of= the total presentation time is devoted to the showing of material which meets t= he definition of "harmful to minors" and/or "sexual conduct&quo= t; as set forth in RSA 571-B: 1, for observation by patrons. For subsections C, D, E, F, and G,= a "substantial portion of the total presentation time shall mean the presentation of films or shows described above for viewing on more than sev= en days within any 56 consecutive day period.

C.&= nbsp; Adult Motion Picture Arcade: Any place to which the public is permitted or invited wherein coin or slug-oper= ated or electronically, electrically or mechanically controlled still or motion picture machines, projectors, or other image-producing devices are maintain= ed to show images to five or fewer persons per machine at any one time, in whi= ch a substantial portion of the total presentation time of the images so display= ed is devoted to the showing of material which means the definition of "harmful to minors" and/or "sexual conduct" as set fort= h in RSA 571-B:1.

&nb= sp;

D.&= nbsp; Adult Drive-In Theater: An open= lot or part thereof, with appurtenant facilities, devoted primarily to the presentation of motion pictures, films, theatrical productions and other fo= rms of visual productions, for any form of consideration to 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&q= uot; and/or "sexual conduct as set forth in RSA 571-B;1."

E.&= nbsp; Adult Cabaret: A nightclub, bar, restaurant, or similar establishment which during a substantial portion of = the total presentation time features live performances which meet the definitio= n of "harmful to minors" and/or "sexual conduct" as set fort= h in RSA 571-B:1, and/or feature films, motion pictures, video cassettes, slides= or other photographic reproductions, a substantial portion of the total presentation time of which is devoted to showing of materials which meets t= he definition of "harmful to minors" and/or "sexual conduct&quo= t; as set forth in RSA 571-B:1.

F.&= nbsp; Adult Motel: A motel or similar establishment offering public accommodations for any form of consideration which provides patrons with closed circuit television transmissions, films, motion pictures, video cassettes, slides or other photographic reproduction= s, a substantial portion of the total presentation time of which are distinguish= ed or characterized by an emphasis upon the depiction or description of materi= als which meet the definition of "harmful to minors" and/or "sex= ual conduct" as set forth in RSA 571-B:1.

G.&= nbsp; Adult Theater: A theater, conce= rt hall, auditorium or similar establishment either indoor or outdoor in natur= e, which, for any form of consideration, regularly features live performances,= a substantial portion of the total presentation time of which are distinguish= ed or characterized by an emphasis on activities which meet the definition of "harmful to minors" and/or "sexual conduct" as set fort= h in RSA 571-B: 1.

H.&= nbsp; Nude Model Studio: A place whe= re a person who appears in a state of nudity or displays male genitals in a stat= e of sexual arousal and/or the vulva or more intimate parts of the female genita= ls and is observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons who pay money or any form of considerat= ion or such display is characterized by an emphasis on activities which meets t= he definition of "harmful to minors" and/or "sexual conduct&quo= t; as set forth in RSA 571-B:1.

I.&= nbsp;   Sexual Encounter Center: A busin= ess or commercial enterprise that as one of its primary business purposes, offers = for any form of consideration: (A) physical contact in the form of wrestling or tumbling between persons of the opposite sex; or (B) activities between male and female persons and/or pers= ons of the same sex when one or more persons is in the state of nudity; or where the activities in (A) or (B) is characterized by an emphasis on activities which meets the definition of "harmful to minors" and/or "se= xual conduct" as set forth in RSA 571-B:1.

&nb= sp;

= 307-22   = Allowed Locations and Location Restrictions of Sexually Oriented Businesses<= /b>

&nb= sp;

Sexually Oriented Businesses, as defined above shall be permitted only in the busine= ss and industrial districts provided that all other regulations, requirements = and restrictions for the zone in which the sexually oriented business is to be located are met; and, no sexually oriented business shall be permitted with= in 1000 feet of another existing sexually oriented business or one for which a building permit has been applied for; and, no sexually oriented business sh= all be permitted within 750 feet of any church, place of worship, parish house, convent, public, parochial, or private school, kindergarten, State approved= day care center or public sports/recreation parks; and no sexually oriented business shall be permitted within 750 feet of the Town boundaries; and no sexually oriented businesses shall be permitted within 1000 feet of another existing sexually oriented business on the date of the passage of this amendment; and,    &nbs= p;      no sexually oriented business shall be permitted within a building, premise, structure, or other facility that contains a sexually oriented business as defined in paragraphs A through I above.

= &nb= sp;

= 307-23   = Measure of Distance

&nb= sp;

The dist= ance between any two sexually oriented businesses shall be measured in a straight line, without regard to intervening structures, from the closest exterior structural wall or temporary or permanent physical divider between of each business.

&nb= sp;

= 307-24   = Additional Reasonable Regulations

&nb= sp;

The Plan= ning Board is empowered hereunder to review and approve permit applications for sexually oriented businesses and impose reasonable restrictions for bufferi= ng, outdoor lighting, parking, adequate ingress and egress from the site off of= and onto public roads, pedestrian movement, and to provide for appropriate landscaping and building aesthetics in the "Site Plan Review Regulatio= ns of the Town of Pelham, New Hampshire," and to avoid site development layout which may result in negative environmental impacts.

&nb= sp;

= 307-25   = Severability

&nb= sp;

The inva= lidity of any section or provision of this Article shall not invalidate any other section of provision thereof.

ARTICLE VI=

AQUIFER CONSERVATION DISTRICT=

[Added 3-12-85 by ballot by the ATM, Art. 8]

&nb= sp;

&nb= sp;

307-26   = Conflicting Provisions

&nb= sp;

In cases= of conflict between permitted uses of this district and permitted uses defined elsewhere in this chapter (see definitions section), the more restrictive u= se shall apply.

&nb= sp;

= 307-27   = Permitted Uses

&nb= sp;

Only the following uses are permitted in the Aquifer Conservation Districts subject = to all other pertinent Zoning Ordinances of the Town of Pelham:

&nb= sp;

A.&= nbsp; Industrial or business uses in the Industrial District, which discharge no hazardous or toxic wastes on the site and which uses are nonpolluting.=

B.&= nbsp; Business uses in the Business District which discharge no hazardous or toxic wastes = on the site and which uses are nonpolluting.

C.&= nbsp; Residential uses as permitted in the Residential Districts.

D.&= nbsp; All uses permitted in the Rural District except junkyards, dumps, demolition disposal sites and sanitary landfills.

E.&= nbsp; All uses permitted in the Recreation-Conservation-Agricultural Districts, provi= ded that hazardous materials are used in a safe and recommended manner.

F.&= nbsp; Any activity designed for conservation of soil, water, plants and wildlife.

G.&= nbsp; Outdoor recreational activities except those which destroy the surfaces of hillside= s or other watershed areas.

H.&= nbsp; Operation and maintenance of existing bodies of water, wells, dams or other conservat= ion devices.

I.&= nbsp;   Forestry uses provided that the land is returned to its natural state in order to prevent loss of topsoil or erosion or alteration of the normal drainage patterns and flow.

= 307-28   = Prohibited Uses

&nb= sp;

Prohibit= ed uses in the Aquifer Conservation District include all other uses not permit= ted under this section. Prohibite= d uses specifically include:

&nb= sp;

A.   Outdoor storage of road salt = or other piercing chemicals and dumping of snow containing road salt or other piercing chemicals.

&nb= sp;

B.&= nbsp; Solid and liquid waste disposal sites, including but not limited to demolition si= tes and lagoons.

C.&= nbsp; Septage disposal sites and lagoons.

D.&= nbsp; Automotive service and repair shops, junkyards, automotive junkyards and automotive salvage operations, as well as any similar use which might potentially affe= ct water quality.

E.&= nbsp; On-site storage of hazardous waste or toxic materials except temporarily as necessa= ry in the ordinary course of business. A permit from the Pelham Planning Board is required for such tempora= ry storage.

F.&= nbsp; Subsurface storage of petroleum and other refined petroleum products except with suita= ble secondary barriers and automatic alarm systems.

G.&= nbsp; Industrial uses which discharge contact-type process waters on the site. Noncontact cooling water is permit= ted.

H.&= nbsp; Excavation of sand or gravel except as such use is conducted in accordance with an approved earth-removal permits being issued by the Pelham Planning Board.

I.&= nbsp;   Bulk storage of toxic material for resale or distribution.

J.&= nbsp; No individual, company, or entity shall cause to remove from the Town’s above ground water resources or below ground aquifers more than 1000 gallon= s of water per day, unless said water is for the purpose of redistributing that water to the landowners of Pelham. [Amended March 8, 2005 ATM]

= 307-29   = Waste Water Disposal

&nb= sp;

Sanitary wastewater discharge to septic and leaching systems shall conform to the regulations set forth in the Town of Pelham health regulations.

&nb= sp;

307-30   = Water Supply and Wells

&nb= sp;

Monitori= ng wells shall be established for all industrial and commercial uses utilizing= or storing hazardous or toxic materials. The number, construction and location of these wells shall be determ= ined by the Pelham Planning Board. The checking of wells shall take place on a monthly basis by the Board of Healt= h.

&nb= sp;

= 307-31   = Potential Contaminants

&nb= sp;

Use of pesticides, herbicides, fertilizers, manure and other potentially dangerous leachables shall be controlled in a manner determined by the Board of Health and in compliance with RSA 149 D: 222, and the New Hampshire Code of Administrative Rules. Storage= of these materials shall not be outdoors.

&nb= sp;

= 307-32   = District Boundaries

&nb= sp;

When the precise limits of the Aquifer Conservation District are disputed by an owne= r or an abutter affected by this section, the Planning Board, at the complainant= 's expense and authorization, may engage a professional geologist or hydrogeologist to determine the precise location of the Aquifer Conservation District boundaries on the properties affected. A report of the findings shall be submitted to the Pelham Planning Board and shall include but not be limited= to:

&nb= sp;

        &= nbsp;   A.         = A revised Soil Map of the area in question prepared by a soil scientist quali= fied in hydrologic studies along with a written report of the on-site inspection= and test-boring data.

&nb= sp;

        &= nbsp;   B.         = The Planning Board shall define the boundary of this district based on the evid= ence provided as set forth above. = The Planning Board shall reserve the right to withhold action on any plan pendi= ng the results of an on-site inspection by the Board or its appointed agent and shall act to approve or disapprove the plan within ninety (90) days of submission or such further time as deemed necessary, but not to exceed an a= dditional ninety (90) days.

&nb= sp;

= 307-33   = Planning Board Review

&nb= sp;

All subdivision proposals and proposed nonresidential site development within t= he Aquifer Conservation District shall be reviewed by the Pelham Planning Board and shall conform to the provisions of this chapter, Chapter 248, Site Plan Review; and Chapter 260, Subdivision of Land of the Code of the Town of Pel= ham and further shall assure that:

&nb= sp;

A.   All such proposals are consis= tent with the need to protect the groundwater of the Town of Pelham and adjacent communities.

&nb= sp;

B.   All sanitary sewer systems are designed to minimize or eliminate leakage or discharges from the system into the groundwater.

&nb= sp;

C.   On-site waste disposal system= s are located so as to avoid or minimize groundwater contamination.

&nb= sp;

D.   Written approval by the Pelham Planning Board or Board of Health and the State of <= st1:State w:st=3D"on">New Hampshire Water Supply and Polluti= on Control Commission has been obtained and granted for septic design.

&nb= sp;

= 307-34   = Enforcement

&nb= sp;

The Town Building Inspector and the Board of Health shall be responsible for the enforcement of this section. = The Building Inspector is authorized to issue cease-and-desist orders wherever = he becomes aware of violations of this section.

&nb= sp;

= 307-35   = Nonconformity

&nb= sp;

Nonconfo= rming uses which exist at the time of the adoption of this section may continue unless that use is found to pose a direct hazard to the aquifer creating an imminent danger to the public health, safety and welfare. An imminent danger shall exist if = any foreign substances (oils, salts, chemicals, hazardous waste, toxic water, e= tc.) are being introduced into the aquifer.&nbs= p; In such cases, the Building Inspector shall issue an immediate cease-and-desist order to stop the offending activity. The offending use must be brought = into conformance with this section in a timely fashion as determined by the Boar= d of Health.

= 307-36   = Guidelines for Enforcement

&nb= sp;

The Boar= d of Selectmen, the Board of Health, the Planning Board, the Board of Adjustment= and the Building Inspector, when enforcing and administering this section, shal= l be guided by the following: The = Town of Pelham believes that an adequate water supply is indispensable to the health, welfare and safety of its citizens now and in future years. Adequate supply is seen as essentia= l to the maintenance of the ecological balance of the natural environment of the town. In order to protect this delicate environment which is subject to an ever increasing demand for new = and competing uses, the town declares and determines that such water resources, whether occurring above or below ground, constitutes a precious, finite and invaluable public resource. T= hese resources must be protected, conserved and managed in the interest of prese= nt and future generations. The i= ntent of this section is to provide for the protection of the water resources from contamination.

ARTICLE VII=

WETLANDS CONSERVATION DISTRIC= T

307-37   = Purpose and Intent

&nb= sp;

The purp= ose of this Ordinance is to protect the public health, safety and general welfare = by controlling and guiding the use of land areas which have been found to be subjected to high water tables for extended periods of time. It is intended that this Ordinance shall:

&nb= sp;

A.&= nbsp; Prevent the development of structures and land uses on naturally occurring or compensatory wetlands which will contribute to pollution of surface and gro= und water by sewage or toxic substances.

B.&= nbsp; Prevent the destruction of or significant changes to, natural or compensatory wetla= nds which provide flood protection.

C.&= nbsp; Protect unique and unusual natural areas.

D.&= nbsp; Protect wildlife habitats and maintain ecological balances.

E.&= nbsp; Protect potential water supplies and existing aquifers (water bearing stratum) and aquifer recharge areas.

F.&= nbsp; Prevent expenditure of municipal funds for the purpose of providing and/or maintain= ing essential services and utilities which might be required as a result of mis= use or abuse of wetlands.

G.&= nbsp; Encourage those low-intensity uses that can be harmoniously, appropriately and safely located in wetlands.

&nb= sp;

The Wetl= ands Conservation District is an overlay district which is hereby determined to = be wetland areas of 2,000 square feet or more in size, or of any size if contiguous to surface waters such as lakes, ponds and streams, subjected to high water tables for extended periods of time, and all areas within fifty = (50) feet of the edge of any wetlands, perennial stream or surface water body. [Amended March 1994 by ATM]

    =             &nb= sp;            =             &nb= sp;            =             &nb= sp;        =

307-38   Wetlands Incorrectly Delineated

&nb= sp;

Where it= is alleged that an area has been incorrectly delineated as a wetland, or that = an area not so designated meets the criteria for wetlands designation, the soil scientist shall determine whether the area has been correctly delineated.

&nb= sp;

The Conservation Commission shall make their judgment under this section only u= pon the determination by a qualified soil scientist(s) and/or plant scientist(s) suitable research, that the information contained on the Wetlands Map is incorrect. This evidence shal= l be acceptable only when presented in written form by said scientist(s) to the Conservation Commission. Any necessary soil testing procedures shall be conducted at the expense of the landowner or developer.

&nb= sp;

Once an = area has been determined to be a wetland under this section that area shall beco= me part of the Wetland Conservation District.

307-39   Permitted Uses

&nb= sp;

Permitte= d uses are those specific uses which will not require the erection or construction= of any structures or buildings, will not result in a major alteration of the natural surface configuration by the addition of fill or by dredging and us= es that otherwise are permitted by this zoning ordinance.

&nb= sp;

Permitte= d uses are specifically restricted to the following:

&nb= sp;

A.&= nbsp; forestry-tree farming, using best management practices in order to protect streams from damage and to prevent sedimentation, excluding access roads across wetlands= and streams;

B.&= nbsp; the cultivation and harvesting of crops according to recognized soil conservati= on practices;

C.&= nbsp; wildlife refuges;

D.&= nbsp; parks and recreation uses consistent with the purpose and intent of this ordinanc= e;

E.&= nbsp; conservation areas and nature trails;

F.&= nbsp; open spaces as permitted or required by the subdivision regulations or the zoning ordinance.

&nb= sp;

307-40   Special Permit

&nb= sp;

A.&= nbsp; Special permit may be granted by the Planning Board, after proper public notice and public hearing, for undertaking the following uses in the Wetlands Conserva= tion District when the application has been referred to the Conservation Commiss= ion, Licensed N.H. Soil Scientist/Wetland Scientist who shall act as a consultan= t to the Planning Board in its review of this application, and to the Health Off= icer for review and comment at least twenty (20) days prior to the hearing. [Amended March 8, 2005 ATM]

&nb= sp;

1.    &= nbsp; Streets,= roads and other access ways, wells, and utility right-of-way easements, including= power lines and pipe lines, if essential to the productive use of land not so zon= ed and if so located and constructed as to minimize any detrimental impact of = such uses upon the wetland. <= /o:p>

2.    &= nbsp; Water im= poundments for fire protection or drainage.

&nb= sp;

B.&= nbsp; Special permit for uses within the Wetlands Conservation District may be granted provided that the following conditions are met, the burden of proof for whi= ch shall be upon the applicant who shall furnish such engineering and hydrolog= ical data as is reasonably necessary;

1.   that the proposed use, construction and/or alteration shall be constructed in such a way that does not unduly restrict the flow of water.

2.   that written comment is provided from the Conservati= on Commission, and if deemed necessary by the Conservation Commission, written comment from the Hillsborough County Soil Conservation Service and/or the N= ew Hampshire Wetlands Board. [Amended= March 9, 2004 ATM]

&nb= sp;

&nb= sp;

307-41   Special Provisions [Amended ATM 1991; amended ATM 1999; amended March 8, 2005 ATM]<= o:p>

A.&= nbsp; Residential and commercial septic leachfields must be setback from Wetland Conservation District areas the following distances:

        &= nbsp;           &nbs= p;            &= nbsp;

1.    &= nbsp; Poorly D= rained Soils - 25 feet

2.    &= nbsp; Very Poo= rly Drained Soils - 50 feet

3.    &= nbsp; Ponds, s= treams and year-round brooks - 75 feet

B.&= nbsp; No building or structure may be located within a Wetland Conservation District area.

C.&= nbsp; No individual, company, or entity shall cause to remove from the Town’s above ground water resources or below ground aquifers more than 1000 gallon= s of water per day, unless said water is for the purpose of redistributing that water to the landowners of Pelham. [Amended March 8, 2005 ATM] <= /span>

307-42 Relation to Other Districts

Where the Wetlands Conservation District is superimposed over another zoning district, the more restrictive regulations shall apply.

307-43 Separability

If any section, provision, portion, clause or phrase of = this ordinance shall be held to be invalid or unconstitutional by any court or competent authority, such holding shall not affect, impair or invalidate any other section, provision, clause or phrase of this ordinance.

307-44 Conflict with other Regulations

Where any provision of this ordinance is in conflict with State law or other local ordinance, the more stringent provision shall appl= y.

&nb= sp;

ARTICLE VIII

FLOODPLAIN DEVELOPMENT ORDINA= NCE

&nb= sp;

307-45   = Purpose

This Ordinance, adopted pursuant to the authority of RSA 674:16, shall be known = as the Town of Pelham Floodplain Development Ordinance. The regulations in the Town of Pelham Zoning Ordinance shall be considered part of the Zoning Ordinance for the purposes of administration and appeals under state law. If any provision of this Ordinance differs or appears to conflict with any provision of the Zoning Ordinance or other ordinance or regulation, the provision imposing the greater restricti= on or more stringent standard shall be controlling.

&nb= sp;

The foll= owing regulations in this Ordinance shall apply to all lands designated as special flood hazard areas by the Federal Emergency Management Agency (FEMA) in its Flood Insurance Rate maps dated March 14, 1980, which are declared to be a part of this Ordinance and= are hereby incorporated by reference.

= 307-46   = Definitions

&nb= sp;

The foll= owing definitions shall apply only to this Floodplain Development Ordinance, and = shall not be affected by the provisions of any other ordinance of the Town of Pelham.=

&nb= sp;

A.&= nbsp; Area of Special Flood Hazard: = is the land in the floodplain within the Town of Pelham subject to a one percent or greater possibility of flooding in any given year. The area is designated = as Zone A on the FHBM and is designated on the FIRM as Zone A.

B.&= nbsp; Base Flood: the flood having a= one percent possibility of being equaled or exceeded in any given year.

C.&= nbsp; Basement: any area of a building having its = floor subgrade on all sides.

D.&= nbsp; Building: see "structure".

E.&= nbsp; Development: any man-made change to improved or unimproved real estate, including but not limited to buildings or other structures, mining, dredging, filling, grading, paving, excavation, or dril= ling operation.

F.&= nbsp; FEMA: the Federal Emergency Management A= gency.

G.&= nbsp; Flood or Flooding: a general= and temporary condition of partial or complete inundation of normally dry land areas from:

&nb= sp;

      1.      the overflo= w of inland or tidal waters or

            =

      2.      the unusual= and rapid accumulation or runoff of surface waters from any source.<= /span>

H<= span style=3D'font-family:Arial;mso-bidi-font-family:"Times New Roman"'>H. Flood Insurance Rate Map (FIRM)<= /u>: an official map incorporated with = this Ordinance, on which FEMA has delineated both the special flood hazard areas= and the risk premium zones applicable to the Town of Pelham.

I.&= nbsp;   Floodplain or Flood-prone area: a= ny land areas susceptible to being inundated by water from any source (see definition of "Flooding").

J.&= nbsp; Flood proofing: any combination= of structural and on-structural additions, changes, or adjustments to structur= es which reduce or eliminate flood damage to real estate or improved real property, water and sanitation facilities, structures and their contents.

K.&= nbsp; Floodway: see "Regulatory Floodway"= ;.

L.&= nbsp; Functionally dependent use: a use whic= h cannot perform its intended purpose unless it is located or carried out in close proximity to water. The term includes only docking and port facilities that are necessary for the loading/unloading of cargo or passengers, and ship building/repair faciliti= es but does not include long term storage or related manufacturing facilities.

M.&= nbsp; Highest adjacent grade: the highe= st natural elevation of the ground surface prior to construction next to the proposed walls of a structure.

N.&= nbsp; Historic Structure: any structure = that is:

1.    &= nbsp; Listed individually in the National Register of Historic Places (a listing maintai= ned by the Department of the Interior) or primarily determined by the Secretary= of the Interior as meeting the requirements for individual listing on the Nati= onal Register;

&nb= sp;

2.    &= nbsp; Certifie= d or primarily determined by the Secretary of the Interior as contributing to the historical significance of a registered historic district or a district primarily determined by the Secretary to qualify as a registered historic d= istrict;

&nb= sp;

3.    &= nbsp; Individu= ally listed on a state inventory of historic places in states with historic preservation programs which have been approved by the Secretary of the Interior; or

&nb= sp;

4.    &= nbsp; Individu= ally listed on a local inventory of historic places in communities with historic preservation programs that have been certified either:

a.   By an approved state program as determined by the Secretary of the Interior, or

            =             &nb= sp;            =

b.   Directly by the Secretary of the Interior in states without approved programs.

O.&= nbsp; Lowest Floor: the lowest floor o= f the lowest enclosed area (including basement).= An unfinished or flood resistant enclosure, usable solely for parkin= g of vehicles, building access or storage in an area other than a basement area = is not considered a building's lowest floor; provided, that such an enclosure = is not built so as to render the structure in violation of the applicable non-elevation design requirements of this Ordinance.

P.&= nbsp; Manufactured Home: a structure, transportable in one or more sections, which is built on a permanent chassis and is designed for use with or without a permanent foundation when connect= ed to the required utilities. For floodplain management purposes the term "Manufactured home" inclu= des park trailers, travel trailers, and other similar vehicles placed on site f= or greater than 180 days.

Q.&= nbsp; Mean sea level: the National Geodetic Vertical Datum (NGVD) of 1929 or other datum, to which base flood elevations shown on a community's Flood Insurance Rate Map are referenced.<= o:p>

R.&= nbsp; 100-year Flood: see "Base Flood".

S.&= nbsp; Recreational Vehicle: a vehicle which = is

1.   &n= bsp;   built on a single chassis;

&nb= sp;

2.   &n= bsp;   400 square feet or less when measured at the largest horizontal protection;

&nb= sp;

3.   &n= bsp;   designed to be self propelled or permanently towable by a light duty truck; and

&nb= sp;

4.   &n= bsp;   designed primarily not for use as a permanent dwelling b= ut as temporary living quarters for recreational, camping, travel or seasonal = use.

T.&= nbsp; Regulatory floodway: the channel of a river or other watercourse and the adjacent land areas that must be reserve= d in order to discharge the base flood without increasing the water surface elevation. These areas are designated as floodways on the Flood Boundary and Floodway Map.

U.&= nbsp; Special flood hazard area: an area having flood, mudslide, and/or flood-related erosion hazards, and shown on = an FHBM or FIRM as Zone A, AO, A1-30, AE, A99, AH, VO, V1-30, VE, V, M, or E. = (See "Area of Special Flood Hazard".)

V.&= nbsp; Structure: for floodplain management purposes= , a walled and roofed building, including a gas or liquid storage tank, that is principally above ground, as well as a manufactured home.=

W.&= nbsp; Start of Construction: includes substantial improvements, and means the date the building permit was issued, provided the actual start of construction, repair, reconstruction, placemen= t or other improvement was within 180 days of the permit date. The actual start means either the = first placement of permanent construction of a structure on site, such as the pou= ring of slab or footings, the installation of piles, the construction of columns= , or any work beyond the stage of excavation; or the placement of manufactured h= ome on a foundation. Permanent construction does not include land preparation, such as clearing, grading and/or walkways; nor does it include excavation for a basement, footings, piers, or foundations or the erection of temporary forms; nor does it inclu= de the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or part of the main structure.

X.&= nbsp; Substantial damage: damage of any ori= gin sustained by a structure whereby the cost of restoring the structure to it&= #8217;s before damaged condition would equal or exceed 50 percent of the market val= ue of the structure before the damage occurred.

Y.&= nbsp; Substantial Improvement: any combinat= ion of repairs, reconstruction, alteration, or improvements to a structure in which the cumulative cost equals or exceeds fifty percent of the market value of = the structure. The market value o= f the structure should equal:

1.   the appraised value prior to the start of initial re= pair or improvement, or



2.   in the case of damage, the value of the structure pr= ior to the damage occurring.

&nb= sp;     For the purposes of this definition, "substantial improvement": is considered to occur when the first alteration of any wall, ceiling, floor, = or other structural part of the building commences, whether or not that altera= tion affects the external dimensions of the structure. This term includes structures whic= h have incurred substantial damage, regardless of actual repair work performed. The term does not, however, includ= e any project for improvement of a structure required to comply with existing hea= lth, sanitary, or safety code specifications which are solely necessary to assure safe living conditions or any alteration of a "historic structure"= ;, provided that the alteration will not preclude the structure's continued designation as a "historic structure".

Z.&= nbsp; Water surface elevation: the he= ight, in relation to the National Geodetic Vertical Datum (NGVD) of 1929, (or oth= er datum, where specified) of floods of various magnitudes and frequencies in = the floodplains.

307-47 Administration

A.&= nbsp; The Building Inspector shall review all building permit applications for new construction or substantial improvements to determine whether proposed buil= ding sites will be reasonably safe from flooding. If a proposed building site is loc= ated in a special flood hazard area, all new construction or substantial improvements shall:

&nb= sp;            =

1.    &= nbsp; be desig= ned (or modified) adequately anchored to prevent floatation, collapse, or later= al movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy;

&nb= sp;

2.    &= nbsp; be const= ructed with materials resistant to flood damage;

&nb= sp;

3.    &= nbsp; be const= ructed by methods and practices that minimize flood damages;

&nb= sp;

4.    &= nbsp; be const= ructed with electrical, heating, ventilation, plumbing, and air conditioning equipment, and other service facilities that are designed and/or located so= as to prevent water from entering or accumulating within the components during conditions of flooding.

B.&= nbsp; Where new or replacement water and sewer systems (including on-site systems) are proposed in a special flood hazard area the applicant shall provide the Building Inspector with assurance that these systems will be designed to minimize or eliminate the infiltration of flood waters into the systems and discharges from the systems into flood waters, and on-site waste disposal systems will be located to avoid impairment to them or contamination from t= hem during periods of flooding.

C.&= nbsp; For all new or substantially improved structures located in special flood hazard areas, the applicant shall furnish the following information to the Building Inspector:

1.    &= nbsp; the as-b= uilt elevation (in relation to NGVD) of the lowest floor (including basement) and include whether or not such structures contain a basement.

&nb= sp;

2.    &= nbsp; If the structure has been flood proofed, the as-built elevation (in relation to NG= VD) to which the structure was flood proofed.

&nb= sp;

3.    &= nbsp; Any certification of flood proofing.

&nb= sp;

The Buil= ding Inspector shall maintain for public inspection, and shall furnish such information upon request.

&nb= sp;

D.&= nbsp; The Building Inspector shall not grant a building permit until the applicant certifies that all necessary permits have been received from those governme= nt agencies from which approval is required by federal or state law, including Section 404 of the Federal Water Pollution Control Act Amendments of 1972, = 33 U.S.C. 1334.

E.&= nbsp; In riverine situations, prior to the alteration or relocation of a watercourse= the applicant for such authorization shall notify the Wetlands Board of the New Hampshire Department of Environmental Services and submit copies of such notification to the Building Inspector, in addition to the copies required = by the RSA 483-a:1-b. Further, t= he applicant shall be required to submit copies of said notification to those adjacent communities as determined by the Building Inspector, including not= ice of all scheduled hearings before the Wetlands Board and local wetland heari= ngs.

&nb= sp;     The applicant shall submit to the Building Inspector, certification provided by= a registered professional engineer, assuring that the flood carrying capacity= of an altered or relocated watercourse can and will be maintained.<= /span>

&nb= sp;     The Building Inspector shall obtain, review, and reasonably utilize any floodway data available from Federal, State, or other sources as criteria for requir= ing that all development in located Zone A meet the following floodway requirem= ent:

&nb= sp;

"No encroachments, including fill, new construction, substantial improvements, and other development are allowed within the floo= dway that would result in any increase in flood levels within the community duri= ng the base flood discharge."

&nb= sp;

F.&= nbsp; In unnumbered A zones the Building Inspector shall obtain, review, and reasona= bly utilize any 100 year flood elevation data available from any federal, state= or other source including data submitted for development proposals submitted to the community (i.e., subdivisions, site approvals).

&nb= sp;     The Building Inspector's 100 year flood elevation determination will be used as criteria for requiring in Zone A that:

1.    &= nbsp; all new construction or substantial improvement of residential structures have the lowest floor (including basement) elevated to or above the 100 year flood elevation;

&nb= sp;

2.    &= nbsp; that all= new construction or substantial improvements of non-residential structures have= the lowest floor (including basement) elevated to or above the 100 year flood l= evel; or together with attendant utility and sanitary facilities, shall: (a) be f= lood proofed so that below the 100 year flood elevation the structure is waterti= ght with walls substantially impermeable to the passage or water; (b) have structural components cap= able of resisting hydrostatic and hydrodynamic loads and the effects of buoyancy; and (c) be certified by a registered professional engineer or architect that the design and methods of construction are in accordance with accepted standards of practice for meet= ing the provisions of this section;

3.   all manufactured homes to be placed or substantially improved within special flood hazard areas shall be elevated on a permanent foundation such that the lowest floor of the manufactured home is at or abo= ve the 100 year flood elevation; and be securely anchored to resist floatation, collapse, or lateral movement. Methods of anchoring may include, but are not limited to, use of over-the-top or frame ties to ground anchors. This requirement is in addition to= applicable state and local anchoring requirements for resisting wind forces;

4.   for all new construction and substantial improvement= s, fully enclosed areas below the lowest floor that are subject to flooding are permitted provided they meet the following requirements: (a) the enclosed area is unfinishe= d or flood resistant, usable solely for the parking of vehicles, building access= or storage; (b) the area is not a basement; (c) shall be designed to automatic= ally equalize hydrostatic flood forces on exterior walls by allowing for the ent= ry and exit of floodwater. Desig= ns for meeting this requirement must either be certified by a regis= tered professional engineer or architect or must meet or exceed the following min= imum criteria: A minimum of two op= enings having a        total net area of not less than one square inch for every square foot of enclosed area subject to flooding shal= l be provided. The bottom of all openings shall be no higher t= han one foot above grade. Opening= s may be equipped with screens, louvers, <= /span>        &= nbsp; other coverings or devices provided= that they permit the automatic entry and exit of floodwater;

5.   Recreational vehicles placed on sites within Zones A1-30, AH, and AE shall either (a) be on the site for fewer than 180 consecutive days; (b) be fully licensed and ready for highway use, or (c) m= eet all standards of Section 60.3 (b) (1) of the National Flood Insurance Progr= am Regulations and the elevation and anchoring requirements for "manufact= ured homes" in paragraph (c) (6) of Section 60.3.

307-48 Variances and Appeals

A.&= nbsp; Any order, requirement, decision or determination of the Building Inspector made under this Ordinance may be appealed to the Zoning Board of Adjustment as s= et forth in RSA 676:5.

B.&= nbsp; If the applicant, upon appeal, requests a variance as authorized by RSA 674:33, I9b), the applicant shall have the burden of showing in addition to the usu= al variance standards under state law:

1.   that the variance will not result in increased flood heights, additional threats to public safety, or extraordinary public expen= se;

2.   that if the requested variance is for activity withi= n a designated regulatory floodway, no increase in flood levels during the base flood discharge will result;

3.   that the variance is necessary, considering the flood hazard, to afford relief.

C.&= nbsp; The Zoning Board of Adjustment shall notify the applicant in writing that:

1.   the issuance of a variance to construct below the ba= se flood level will result in as high as $25 for $100 of insurance coverage; a= nd

2.   such construction below the base flood level increas= es risks to life and property. S= uch notification shall be maintained with a record of all variance actions.

D.&= nbsp; The community shall maintain a record of all variance action, including their justification for their issuance, and report such variances issued in its annual or biannual report submitted to FEMA's Federal Insurance Administrat= or.

ARTICLE IX

SENIOR & ELDERLY HOUSING<= /span>

[Added 3-11-80 by ballot by the ATM, Art. 3; amended 3-8-05 ATM; amended 3-14-06 ATM]

&nb= sp;

307-49   Purpose & Intent =

&nb= sp;

It is the intent of this Article to recognize the need for granting provisions whereby appropriate housing alternatives may be provided for: active adults age 55 = and over; elderly persons living independently; and, frail elderly persons.

&nb= sp;

To provi= de affordable alternative housing for the senior and elderly population in the form of multiple attached or detached units.

The following uses shall be permitted under this article: A variety of housing types exclusively addressing the needs of senior citizens, including, but n= ot limited to: active adult homes and facilities; independent living facilitie= s; CCRC’s; ALF’s; congregate care facilities; nursing homes; and, skilled nursing facilities. <= o:p>

Senior, elderly, and adult community complexes, as herein defined, shall be a permitted use in any zoning district, except = for Industrial Districts and Recreation-Conservation-Agriculture Districts where such use shall not be permitted.

307-50   Definitions=

As used in this Article, the following terms shall have = the meanings indicated:

A.&= nbsp; Elderly Housing Complex: One (1) = or more dwelling units intended exclusively for occupancy by elderly persons or couples (elderly as defined= in accordance with applicable federal regulations and housing types E through = N in this section), wherein each dwelling unit shall contain not less than seven hundred (700) square feet of living space and each complex shall be located = on a single parcel or lot of land.

Eld= erly, Handicapped or Disabled Person: A person who is at least 62 y= ears old. The term elderly (s= enior citizen) also means persons with the following handicap or disabilitie= s:

1.   Handicapped - inability to engage in any substantially gainful activity by reason of any medically determinable phys= ical or mental impairment which:

&nb= sp;

a.   has lasted or can be expected to last for a continuo= us period of not less than 12 months; or which can expected to result in death= ;

            =

b.   substantially impedes the ability to live independen= tly; and

            =             &nb= sp;

c.   is of such nature that such ability can be improved = by more suitable housing conditions.

        &= nbsp;           &nbs= p;            &= nbsp;           &nbs= p;

In the case of a blind person who is at least 55 years o= ld (within the meaning of "blindness" as determined in Section 223 of the Social Security Act), and who is unable because of the blindness to eng= age in substantially gainful activity requiring skills or abilities comparable = to those of any gainful activity in which he/she has previously engaged with s= ome regularity over a substantial period of time.

&nb= sp;

2.   Disabled:&nb= sp; in the case of developmental disability, a person with a severe, chr= onic disability which:

&nb= sp;

a.   is attributable to a mental or physical impairment;<= o:p>

            =

b.   is manifested before the person attains age 22;=

            =

c.   is likely to continue indefinitely;

d.   results in substantial functional limitations in thr= ee or more of the following areas of major life activity:

&nb= sp;

i.    self care,

ii.    receptive and expressive language,<= /span>

iii.   learning,

iv.   mobility,

v.   self-direction,

vi.   capacity for independent living,
vii. economic self sufficiency; and

viii. reflects= the person's need for a combination and sequence of special, interdisciplinary = or generic care or treatment, or for other services which are of lifelong or extended duration and are individually planned and coordinated.<= /span>

<= span style=3D'font-family:Arial;mso-bidi-font-family:"Times New Roman";color:red= '>

Sen= iors: Pe= rsons age 55 and older.

&nb= sp;

Eld= erly: P= ersons age 62 and older, as defined in federal regulations.

Sen= iors Housing: A variety of housing types designed specifically to meet the varied needs of persons 55 and older. Such housing may include acti= ve adult facilities & independent living facilities. Such housing shall meet the F= air Housing Act (FHAct) definition of “housing for older personsR= 21; and houses at least one person who is 55 or older in at least 80% of t= he occupied units and adheres to a policy that demonstrates intent to hou= se persons who are 55 or older.

Eld= erly Housing: Any of a variety of housing types or housing units intended exclusively for use and occupancy by persons aged 62 years and older. Such housing may include, active adult facilities; independent living facilities; continuing care retirement communities (CCRC); assi= sted living facilities (ALF); congregate care facilities; nursing homes; an= d, skilled nursing facilities (SNF).

Eld= erly Housing Project: One (1) or more buildings situated on contiguous parcel(s) of land and containing elderly housing dwelling units. =

Act= ive Adult Community: A community or living facility designed specifica= lly for the interests of persons age 55 and older, which typically contains recreational amenities and support services for older adults who are healthy, active, and capable of completely independent living.

Ind= ependent Living Facilities: Housing which groups seniors for the purpose of social interaction and mutual support in a common interest community. Group facilities may be provided on premises for recreation and social interaction, but only limited support services are typically provided. Typically these are multi-family residential structures.

Con= tinuing Care Retirement Community (CCRC): A variety of housing options= to meet the spectrum of needs and interests ranging from active adults through assisted living. These often include on-premises skilled nursi= ng facilities. CCRC’s where a primary feature is the provision of “lifetime” supportive services at each stage of a senior’s later life.

Ass= isted Living Facility (ALF): Housing for frail elderly persons, typically age = 75 to 85, who require limited supportive services for their daily living activities. ALF’s typically require residents to be mobile and capable of performing most routine tasks.

Con= gregate Care Facility: A congregate care facility is a group living faci= lity for seniors who may or may not require assistance with daily living. Congregate care facilities tend to be limited in size and scope of services, often providing more intensive services than can be provided= in an ALF, but requiring residents to have at least partial mobility and reasonably good health.

Nur= sing Home: A group living facility in which semi-skilled, rehabilitative nursing services are provided for patients who have impaired mobility or health problems of a limited duration. Nursing homes may or may not cater exclusively to senior patients, and may provide rehabilatory services = for patients of all ages.

Ski= lled Nursing Facility (SNF): A group living facility providing extended nursing care exclusively to senior patients. SNF’s are specifically defined under federal regulations and are regulated through the New Hampshire Department of Health under criteria established for a Certificate of Need.

Han= dicapped Accessible: Meeting the design requirements of the “Barrier-Free Design Code for the State of New Hampshire” and/or the U= niform Federal Accessibility Standards (UFAS).

Net= Area: Contiguous useable land excluding wetlands and land with slopes greater than 25%.

Max= imum Project Density: The total number of bedrooms that the subject site can support, based upon the development capability of the subject site= and calculated in accordance with the provisions of this Section.

307-51   = Requirements for complex

&nb= sp;

Each eld= erly housing complex shall meet the following requirements:

&nb= sp;

A.   It will be located on a singl= e, undivided parcel or lot of land.

&nb= sp;

B.   No one (1) complex may contai= n in excess of forty (40) dwelling u= nits.

&nb= sp;

C.   Each dwelling unit within the complex shall contain at least seven hundred (700) square feet of living space.

&nb= sp;

D.   Each dwelling unit shall have= no more than two bedrooms, and shall be specifically designed for occupancy by= the elderly providing for such things as emergency lighting, exits, fire safety equipment, and adequate structural design features to permit handicapped accessibility such as handicap ramps, etc.

E.   Residential facilities design= ed for exclusive occupancy by senior citizens, as a minimum, must meet federal regulations for such facilities.

&nb= sp;

F.&= nbsp; Occupancy of each unit shall be restricted to persons fifty-five (55) years and older, with the following exceptions:

1.      = A spouse= under the age of fifty-five (55) married to a resident aged fifty-five(55) or old= er.

2.      = An adult= over the age of twenty-one (21), if their presence is required to provide medical care to a resident aged fifty-five (55) or older or to the resident’s spouse.

3.      = Employee= s of the elderly housing project (and family members living in the same unit) who are under fifty-five (55) years of age, provided the employees perform subs= tantial duties related to the management or maintenance of the project’s facilities.

4.      = Seniors Housing with the age restriction set forth as that term is defined above in Section 307-50.E.

307-52    Site Requirements<= /span>

&nb= sp;

An elder= ly housing complex may only be located on a lot or parcel which meets the following requirements:

&nb= sp;

A.&= nbsp; The lot or parcel shall contain not less than five (5) contiguous non wetland a= cres and have at least 200’ of frontage on a public road.

<= span style=3D'font-family:Arial;mso-bidi-font-family:"Times New Roman"'>B.    No part of the five (5) conti= guous acres shall contain wetlands, slopes exceeding twenty-five percent (25%) or any utility easements.

C.= All structure set backs will= be thirty feet (30 ft.) front and thirty feet (30 ft.) sides and rear.

307-53   = Plan Approval [Amended 3-14-06 by b= allot ATM, Art. 4]

A.&= nbsp; Each proposed elderly housing complex must receive site plan approval from the Pelham Planning Board in accordance with its Subdivision Regulations. [Amended 3-14-06 ATM]<= /span>

B.&= nbsp; The Planning Board shall review all applications for housing developments for t= he elderly according to the above procedures and approve or deny such applicat= ions and require such covenants or legal restrictions they deem necessary to ins= ure the intent of the ordinance.

C.&= nbsp; Each plan for an elderly housing complex must: [Amended 3-14-06 ATM]

1. Respect the integrity of adjacent single-family neighborho= ods and, to the extent feasible, minimize any conflicts with the character of t= he existing neighborhood.

2. <= /span>The design and site layout of the development shall maximize the privacy

of the dwelling units, preserve the natural character of land where feasible, prov= ide for the appropriate separation of parking and living areas as determined by= the specific use, and consider such factors as orientation, energy usage, view, etc.

    =             &nb= sp;    3.        &= nbsp;   The development shall be landscaped so as to enhance its compatibility with the Town with emphasis given to the use of existing natural features where possible. <= /p>

4.&= nbsp; The Planning Board may require sufficient landscaped or naturally vegetated buf= fers for adjacent uses. Buffers shall be maintained to provide continued screening. =

5.= Performance Bond and other legal data shall be submitted as required= by the Planning Board to insure the completion of streets, buffers, and amenit= ies in accordance with the accepted plans and the subdivision regulations of the Town of Pelham as adopted or hereafter amended.

307-53-1= Evaluation Criteria

In considering plans submitted under this ordinance, the Planning Board shall take into consideration the public health, safety and general welfare and the comfort and convenience of the public in general and the residents of the immediate neighborhood in particular and shall make any appropriate conditions and safeguards in harmony with the general purpose a= nd intent of this ordinance and particularly in regard to achieving:

=

A.   &n= bsp; Maximum safety of traffic access and egress, with minimum impact on the capacity of existing roads and sufficient parking areas to provide for adequate off-street parking.&n= bsp;

B.   &n= bsp; The reasonable screening of all parking lots, service ar= eas, and multi-family housing developments from the view of adjacent residential properties and streets. =

C.   &n= bsp; Installation of public improvements and amenities, at the expense of the applicant, to assist in the establishment of a sound urban environment. Such improvements may include, but shall not be limited to, granite curbing, sidewalks and street trees, extension of utilities and, wh= en deemed necessary, improvements to existing roadways and/or drainage systems= in order to adequately serve the proposed project.

D.   &n= bsp; Conforma= nce of the building and all related signs and structures to the properties of the aesthetic character of the area, as determined by consideration of architecture, building size and type, scale of lot coverage, and consistenc= y of uses in the immediate area. <= o:p>

307-53-2   Development Standards. <= /o:p>

A.   &n= bsp; Senior facilities must be served by municipal water and sewer, by private systems suitable for community use, or by individual sept= ic systems and wells approved by the Planning Board and the state of New Hampshire.

B.   &n= bsp; Facilities designed as dwelling units within the district may have a maximum of two bedrooms.

C.   &n= bsp; Open space shall consist of no less than 30% of the lot = area and shall be protected by covenants, recorded with the plans, and deed restrictions. Open space shall include all land areas without building structures, impervious surfaces, and slopes greater than twenty-five (25%).&nbs= p; No more than ten percent (10%) of the open space can be hydric soil types or wetlands. At least 10% of the open space shall be beneficial to the residents of the complex for walking trails or other passive recreational uses.

&nb= sp;

1.   &n= bsp;   Entrances. Building entrances must comply with all curre= nt accessibility regulations, however the use of ramps and lifts is discourage= d. Building should be designed with entrances that are barrier free for the intended residential or commercial uses.&n= bsp;

2.   &n= bsp;   No building shall contain more than six (6) dwelling uni= ts, except that the Planning Board may permit more then six (6) units per build= ing when, in the Board’s sole discretion, such increase provides specific, substantial benefits consistent with the purpose and intent of this Ordinance; =

3.   &n= bsp;   Where there will be more than one (1) building on a lot, buildings shall have a minimum horizontal separation of thirty (30) feet. T= he Planning Board may require a greater separation where topography, or other unique characteristics of the site or the development will affect the use of emergency equipment between buildings;&nbs= p;

4.   &n= bsp;   All units within a building shall have at-grade access;<= span style=3D'mso-spacerun:yes'>

5.   &n= bsp;   No unit shall contain more than two (2) bedrooms;

6.   &n= bsp;   Units may occupy two (2) floors, provided that at least = one bedroom and one full bathroom must be situated on the floor containing the principal access and main living area for the unit.

7.   &n= bsp;   Parking for visitors and guests will be provided as requ= ired by the Pelham Planning Board.

307-53-3   Additional Criteria for Appro= val

It is intended under this Section t= hat the Applicant comply with applicable state/federal law which imposes similar requirements. To the extent that a state/federal regulatory agency concludes that the Applicant has not fully complied with this Section, the Applicant = must comply with such state and federal requirements.

In addition, The Town of Pelham currently has a Senior Center which will n= eed to be expanded as more elderly and senior citizen facilities are built. Each dwelling unit build under this ordinance will be responsible to pay an impact fees specifically for the expansion, renovations and equipment needs of the Pelham Senior Center and other Se= nior capital projects including transportation vehicles that may be purchased to support and service the se= nior population. This impact fee m= ay be adjusted annually by the Pelham Planning Board<= /st1:PersonName> based on known projects scheduled in the Town’s CIP Plan. The fee shall be set from time to = time, following a public hearing, on an impact fee schedule adopted by the Board.= =

Any site on which an elderly housing project is proposed shall be reviewed with respect to the proposed construc= tion and design of the elderly housing project containing the usual amenities and living aids found in housing designed for use by the elderly.

All Elderly and Senior facilities a= re required to be inspected by the Town’s Building Inspector, Health Officer, and Life Safety Officer for specific criteria required by them in providing a safe environment for seniors and elderly. It is recommended that applicants meet with these individuals early in the building process to understand the codes and requirements they will need to meet including the = topography and other characteristics of the site which must be suitable for the type of development being proposed to ensure that conflicts with the character of a= djacent neighborhoods will be minimal.

The design and layout of the development shall emphasize the rural character of the town, maximize the privacy of the dwelling units, preserve the natural character of land, and consider such factors as orientation, energy usage, views, etc. =

307-53-4   Other Provisions

A. Interpretation: To the exten= t that the specific requirements of this Senior/Elderly Housing Ordinance are inconsistent with any other requirements contained in the Zoning Ordinance,= the requirements imposed herein shall govern and control an Elderly Housing proposal. To the extent that specific requirements imposed herein are incon= sistent with or in conflict with the requirements of the State of New Hampshire or the requirements of t= he Federal Government with respect to the operation or construction of an elde= rly housing project, such State or Federal requirements shall supersede the requirements of this Ordinance.

B. Legal Documents Required: The Planning Board shall require such covenants or legal restrictions that it d= eems necessary to insure the intent of this ordinance. The Planning Board may, as appropriate, require review and approval of any such documents by legal cou= nsel to insure that the form and substance of such documents is sufficient to achieve and preserve the requirements of this Ordinance. The provision and review of any documents required hereunder shall be at the Applicant’s expense.

C. Assurances of Senior Residency: The Applicant shall provide deed restrictions, use limitations, covenants, or some other legally enforceable instrument, which shall permanently restrict occupancy of the housing facilities to persons who meet all applicable restrictions regarding age. T= he language of the restrictions and/or limitation must be specific and must correlate with current federal and state requirements for housing for older persons under the Federal Fair Housing Act. Said assurances shall include provisions for:

1.   &n= bsp;   The publication of, and adherence to, policies and procedures which demonstrate an intent by the owner(s) or manager(s) to pro= vide housing for persons fifty-five (55) years of age or older; and

2.   &n= bsp;   Annual verification of compliance with the age restricti= ons by reliable surveys and affidavits. Notice of the results of the annual verification process is to be provided to the Code Enforcement Officer.

D. Performance Guarantees Required<= /u>: The Planning Board shall require that a performance bond and/or such other legal assurances be submitted as are required to insure the completion of streets, buffers, amenities, or common area improvements, in accordance with the approved plans and the Subdivision Regulations of the Town of Pelham. [Amended 3-14-06 by ballot ATM, Art. = 4]

307-54     Septic System

The septic system for any elderly housing complex shall comply with the minimum requirements imposed by the New Hampshire Water Sup= ply and Pollution Control Commission for the size of the complex proposed. No portion of the leach field shal= l be less than seventy-five (75) fee= t from the well or wells which are to service the complex or any wells on adjoining properties.

307-55     Interpretation

To the extent the specific requirements in this Article = are inconsistent or in conflict with any other requirements contained in this chapter, the requirements imposed herein shall govern and control an elderly housing complex. <= /span>

<= /b>

ARTICLE X

PERSONAL WIRELESS SERVICES ORDINANCE

[Added by ballot March 99]

&nb= sp;

307-56 Purpose and Intent

This Ord= inance is enacted in order to permit the siting of personal wireless service facilities in the Town of Pelh= am consistent with the following:

A.     Avoid and mitigate adverse impacts such facilities may create, including, but not lim= ited to the following impacts: visual, environmental, historical, flight corrido= rs, health, safety and prosperity.

&nb= sp;

B.     Promote co-location for facilities when such co-location minimizes the adverse impa= cts described in I (A) above through an assessment of technology, current locational options, future available locations, innovative siting technique= s, and siting possibilities beyond the political jurisdiction of the Town.

&nb= sp;

C.     Permit t= he siting of facilities on new ground mounted structures only where all other reasonable siting opportunities have been exhausted, and encourage the siti= ng of facilities, whether on new structures or existing, in a way that minimiz= es the adverse impacts of the facilities.

&nb= sp;

D.    Require = that facilities be constructed and maintained safely.

&nb= sp;

E.     Provide = for the removal of abandoned facilities, including a mechanism for the Town to = remove these abandoned facilities at the facility owner’s expense to protect= the citizens from imminent harm and danger.

307-57 Definitions

A.     Alternat= ive Siting: Innovative siting techniques that shall include the location of antennas wh= ich are roof-mounted, side mounted or structure mounted, including but not limi= ted to man-made trees, clock towers, bell steeples, light poles, and similar alternative-design mounting structures that camouflage or conceal the prese= nce of antennas.

&nb= sp;

B.     Antenna:= Shall m= ean any exterior apparatus designed for telephonic, radio, television, personal communication services (PCS), pager network, or any other communications through the sending and/or receiving of electromagnetic waves of any bandwi= dth.

&nb= sp;

C.     Antenna = Array: A colle= ction of antennas attached to a structure or mount to send and receive radio sign= als for a single carrier.

&nb= sp;

D.    Carrier:= A compa= ny that provides personal wireless services.

&nb= sp;

E.     Environm= ental Assessment (EA): An EA is a document required by the Federal Communicatio= ns Commission (FCC) and the National Environmental Policy Act (NEPA) when a personal wireless service is placed in certain designated areas.=

&nb= sp;

F.     Equipment Shelter: An enclosed structure, cabinet, she= d, vault, or box near the base of the personal wireless service facility within which are housed equipment for those facilities such as battery and electri= cal equipment.

&nb= sp;

G.    FAA: An acronym that shall mean the Fed= eral Aviation Administration.

&nb= sp;

H.     Fall Zon= e: The are= a on the ground within a prescribed radius from the base of a personal wireless facility. The fall zone is th= e area within which there is a potential hazard from falling debris (such as ice) = or collapsing material.

&nb= sp;

I.       = FCC: An Acro= nym that shall mean the Federal Communications Commission.

&nb= sp;

J.      Guyed To= wer: A monop= ole or lattice tower that is secured to the ground or other surface by diagonal ca= bles for lateral support.

&nb= sp;

K.     Height:<= /span> Shall m= ean, when referring to a tower or other structure, the distance measured from gr= ound level to the highest point on the tower or other structure, even if said highest point is an antenna.

&nb= sp;

L.      Lattice Tower:= A type = of structure that is self supporting with multiple legs and a cross bracing of structural steel.

&nb= sp;

M.    Mast: A thin = pole that resembles a street light standard or telephone pole.=

&nb= sp;

N.     Monopole= : A thicke= r type of structure than a mast that is self supporting with a single shaft of woo= d, steel or concrete that is designed for the placement of antennas and arrays along the shaft.

&nb= sp;

O.    Mount: The str= ucture or surface upon which antennas are mounted, including the following four ty= pes of mount:

&nb= sp;

1.      roof mou= nted or mounted on the roof of a building;

&nb= sp;

2.      side mou= nted or mounted on the side of a building;

&nb= sp;

3.      ground m= ounted or mounted on the ground;

&nb= sp;

4.      structure mounted or mounted on a structure other than a building.<= /p>
&nb= sp;

P.     Personal Wireless Service Facilities: Shall mean any facility which provi= des commercial mobile wireless services, unlicensed wireless services and common carrier wireless exchange access services, as described by Section 332 of t= he Telecommunications Act of 1996.

&nb= sp;

Q.    Planning= Board or Board: Shall mean the Town of Pelham Planni= ng Board.

&nb= sp;

R.     Preexist= ing Towers and Antennas: Shall mean any tower or antenna lawfully constructed or permitted prior to the adoption of this ordinance. Shall also mean any tower or anten= na lawfully constructed in accordance with this ordinance.

&nb= sp;

S.     Radio Frequency (RF) Engineer: An engineer specializing in electrical or microwave engineering, especially the study of radio frequencies.
&nb= sp;

T.      Tower: Shall m= ean any structure that is designed and constructed primarily for the purpose of supporting one or more antennas, including self-supporting lattice towers, guyed towers, or monopole towers.

307-58 Siting Standards

A.   General

1.   Siting Priority

        &= nbsp;   An applicant seeking approval for personal wireless service facility shall com= ply with the      &nbs= p;              &= nbsp;   following:

&nb= sp;

a.      Preferen= ce will be given to the siting of personal wireless service facilities on exis= ting personal wireless service facilities including preexisting towers and anten= nas, where such co-location can exist while preserving the character and integri= ty of the existing structure and without other adverse impacts.

&nb= sp;

b.     To the e= xtent that there are no existing personal wireless facilities which meet the requirements of the applicant, preference will be given to locating facilit= ies on existing structures of other kinds, such as a water tower or church stee= ple, where such co-location preserve the character and integrity of the existing structure, and does not create other adverse impacts.

&nb= sp;

c.      To the e= xtent that location of the personal wireless service facility is not possible und= er Paragraphs a and b, siting will be governed by a conditional use permit und= er this ordinance in certain designated commercial or industrial areas.

&nb= sp;

2.   Burden of Proof on Applicant Regarding Siting Priority    = ;            &n= bsp;            = ;            &n= bsp;

&nb= sp;

The burd= en of proof that there are no existing structures upon which a carrier may locate= its personal wireless facility and/or transmit or receive radio signals shall include, at a minimum:

a.      the appl= icant shall submit a list of all owner contacts made with regard to the availabil= ity of potential wireless service facility.&nb= sp; If the Planning Board or Town staff finds additional existing buildi= ngs and structures that may be satisfactory, the applicant shall contact the property owners;

&nb= sp;

b.     the appl= icant shall provide copies of all letters of inquiry made to owners of existing structures and letters of rejection. If letters of rejection are not provided, at a minimum, unanswered “return receipt requested” forms from the US Post Office shall = be provided for each owner of existing structures that was contacted;=

&nb= sp;

c.      if an applicant claims that a structure is not structurally capable of supporting= a personal wireless service facility, this claim must be certified by a registered professional engineer licensed in the State of New Hampshire. The certification shall, at a mini= mum, explain the structural issues and demonstrate that the structure cannot be modified or replaced to support the personal wireless facility at a reasona= ble cost.

B.   Use Regulations

&nb= sp;

&nb= sp;           A personal wireless service facility shall require a building permit in all c= ases and may be      &n= bsp;            = ;              &= nbsp;   permitted as follows:

1.      Existing Personal Wireless Service Structures: A personal wireless service facility may locate, subject to the issu= ance of a building permit that includes review by the Director of Planning, on a= ny existing personal wireless service structure, including any guyed tower, lattice tower, mast tower or monopole tower in existence prior to the adopt= ion of this ordinance so long as co-location complies with any approved site plan. All the performance sta= ndards stated in this ordinance shall be met.&nbs= p; This provision shall apply only so long as the height of the existing tower structure is not increased, a security barrier already exists, and the area of the security barrier is not increased. All other sitings shall require si= te plan review and approval by the Planning Board.

&nb= sp;

2.      Existing Structures: A personal wirele= ss service facility may locate, subject to the provisions of this ordinance and site plan review, on an existing structure other than on an existing person= al wireless service or tower structure.

&nb= sp;

3.      Telecomm= unications Overlay Zone: A personal wire= less service facility may locate within the telecommunications overlay zone, sub= ject to a conditional use permit granted by the Planning Board and site plan rev= iew by the Planning Board. The telecommunications overlay zone consists of the following:

&nb= sp;

a.      Industri= al Zones 1, 2, and 3.

&nb= sp;

b.     Business= Zones 1, 2, 3, and 4.

C.   Dimensional Requirements=

&nb= sp;

These requirements and limitations shall preempt all other dimensional limitation= s as required by the Zoning Ordinance and shall apply only to personal wireless service facilities.

1.   Height

&nb= sp;

a.      Height, Maximum

&nb= sp;

b.     Existing Structures

        &= nbsp;

        &= nbsp;           &nbs= p;   New personal wireless service facilities located on any of the following existi= ng         &= nbsp;             &= nbsp;   structures shall be exempt from the height restrictions of the zoning ordinance         &= nbsp;           &nbs= p;      provided that there is no more than a 20 foot increase in height of the existing         &= nbsp;           &nbs= p;         structure as a result of the installation of= a personal wireless service facility so = ;            &n= bsp;            = ;     long as the overall height of the personal wireless facility will not exceed 199 feet;       &= nbsp;           &nbs= p;             &= nbsp;   water towers, electric transmission and distribution towers, utility poles, and <= span style=3D'mso-tab-count:3'>        &= nbsp;           &nbs= p;            &= nbsp; similar existing utility structures, guyed, lattice towers, monopoles, flagpoles, <= span style=3D'mso-tab-count:3'>        &= nbsp;           &nbs= p;           steep= les or chimneys. This increase in height shall only be permitted once for &nb= sp;           &= nbsp;           &nbs= p;   each structure.

        &= nbsp;           &nbs= p;

c.      Height f= or Ground Mounted Facilities

&nb= sp;

Ground m= ounted personal wireless service facilities shall not project higher than 199 feet= in height, unless the facility was greater than 199 feet in height prior to the adoption of this article.

&nb= sp;

2.   Setbacks

      =

All pers= onal wireless service facilities and equipment shelters shall adhere to a front, rear and side setback of 175 feet.=

&nb= sp;

3.      Fall Zon= e

In order= to ensure public safety, the minimum distance from the ground mount of a perso= nal wireless service facility to any property line, road, habitable dwelling, business         = or institutional use or public recreational area shall be 100% of the height of the facility, including any antennas or other appurtenances. This setback is considered the “Fall

ZoneR= 21;. The Planning Board may change the fall zone upon a showing that the technic= al quality and nature of the facility requires a different fall zone as is otherwise required by this section.

307-59   Performance Standards=

A.   Visual Impact and Lighting.

&nb= sp;

Visual i= mpacts are measured on the basis of: change in community scale, as exhibited in relative height, mass or proportion of the personal wireless service facility within its proposed su= rroundings; new visible elements proposed on a contrasting background; different colors= and textures proposed against a contrasting background; and use of materials th= at are foreign to the existing built environment.

&nb= sp;

Preserva= tion of the existing developed and natural environments within Pelham are enhancements to the Town. Enhancements are measured on the basis of: conservation of opportuni= ties to maintain community scale, amount and type of landscaping and/or natural vegetation; preservation of view corridors, vistas and view sheds; and continuation of existing colors, textures and materials.<= /p>
&nb= sp;

Visibili= ty focuses on eliminating or mitigating the visual impact, and maximizing enhancement of the existing environment.

        &= nbsp;

The requirements in this subsection (A), shall govern the location of all facilities, and the installation of all antennas.

&nb= sp;

The requirements are as follows:

&nb= sp;

1.      Towers s= hall be located on sites where the grade/slope and tree cover of the site and surrounding land can be used to decrease any adverse visual impacts.

&nb= sp;

2.      Tower or ground mounts shall either maintain a galvanized steel finish, subject to a= ny applicable standards of the FAA, or be painted a neutral color, so as to re= duce visual obtrusiveness.

&nb= sp;

3.      The desi= gn of the buildings and related structures shall, to the maximum extent possible,= use materials, colors, textures, screening, and landscaping that will blend the tower facilities with the natu= ral setting and built environment. These buildings and facilities shall also be subject to all other Si= te Plan Review Regulation requirements.

&nb= sp;

4.      If an an= tenna is installed on a structure other than a tower, the antenna and supporting electrical and mechanical equipment must be of neutral color that is identi= cal 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.=

&nb= sp;

5.      Faciliti= es shall not be artificially lighted, unless required by the FAA or other applicable authority. If ligh= ting is required, the Planning Board may review the available lighting alternati= ves and approve the design that would cause the least disturbance to the surrou= nding views.

&nb= sp;

6.      Faciliti= es shall not contain any permanent or temporary signs, writing, symbols, or any graphic representation of any kind.

&nb= sp;

B.   Federal Requirements

&nb= sp;           All facilities 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 facilities = and antennas.             If such standards and regulations are changed, the owners of the facilities governed by this     &n= bsp;          ordinance shall bring such facilities into compliance with such revised standards and=         &= nbsp;           &nbs= p;         regulations within six (6) months of the effective date of such standards and regulations,         &= nbsp;           &nbs= p;         unless a more stringent compliance schedule is mandated by the controlling federal agency.             =             F= ailure to bring facilities into compliance with such revised standards and regulat= ions shall       &= nbsp;         &= nbsp;   constitute grounds for the removal, in accordance with § VIII, of the facilities, at = the owner’s      = ;            &n= bsp; expense through the execution of the posted security required by § VI.

C.   Building Codes-Safety Standar= ds

&nb= sp;           To ensure the structural integrity of facilities and antennas, the owner of a facility shall certify    &n= bsp;            = ; that it is constructed and maintained in compliance with standards contained in applicable      &n= bsp;            = ;     local building codes and the applicable standards for personal wireless service facilities that     &nb= sp;        are published by the Electronic Industries Association, as amended from time to time. The             =            owner of the facility shall initially provide proof of structural integrity by re= port of a structural    &nbs= p;            &= nbsp;      engineer licensed in New Hampshire and thereafter shall provide certifying reports to the town         &= nbsp;          every five years. All facilities sh= all be designed and operated in an manner that minimizes the             =             r= isk of igniting a fire or intensifying one that otherwise occurs. If, upon inspection the Town     = ;             &= nbsp;   concludes that a facility fails to comply with such codes and standards and constitut= es a        &= nbsp;           &nbs= p;           &= nbsp;   danger to persons or property, then upon notice being provided to the owner of the facility, the      = ;         owner shall have 30 days to bring such facility into compliance with such standar= ds. If the            &nbs= p;   owner fails to bring such facility into compliance within 30 days, such action sh= all constitute      &n= bsp;        grounds for the removal, in accordance with Section 307-62, of the facility, at the owners             = ;            &n= bsp;     expense through the execution of the posted security required by Section 307-61.

D.   Additional Requirements<= /o:p>

These requirements shall supersede any and all other applicable standards found elsewhere in Pelham Ordinances or Regulations that are less strict.

1.      Landscap= ing

&nb= sp;

a.      Towers or ground mounted facilities shall be landscaped with a buffer of plant materi= als that effectively screens the view of the equipment shelter from adjacent residential property and public roads.&nbs= p; The standard buffer shall consist of landscaped strip at least 10 fe= et wide outside the perimeter of the tower compound. Natural vegetation is preferred.

&nb= sp;

b.     In locat= ions where the visual impact of the tower would be minimal, the landscaping requirement may be reduced or waived entirely.

&nb= sp;

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

307-60 Conditional Use Permits<= span style=3D'font-family:Arial;mso-bidi-font-family:"Times New Roman"'>

A.   General

&nb= sp;           Unle= ss otherwise provided, all applications under this ordinance shall apply to the Planning      &nbs= p; Board for Site Plan Review, in accordance with&n= bsp; the requirements as provided herein and as             = provided for in the Site Plan Review Regulations.&n= bsp; Applicants for conditional use permits under             =          this ordinance shall also be required to submit the information provided for in = this Section.

B.   Issuance of Conditional Use P= ermits

&nb= sp;           In granting the Conditional Use Permit, the Planning Board may impose conditio= ns to the       =             &nb= sp;             &= nbsp;   extent the Board concludes such conditions are necessary to minimize any adverse effect of      &nb= sp;            the proposed siting on adjoining properties, and to preserve the intent of this ordinance.

1.   Procedure on application.

&nb= sp;

The Plan= ning Board shall act upon the application in accordance with the procedural requ= irements of the Site Plan Review Regulations and RSA 676:4.

&nb= sp;

2.   Decisions

      Possible decisions rendered by the Planning Board, include Approval, Approval with C= onditions, or Denial. All decisions shal= l be rendered in writing, and a Denial shall be in writing and based upon substantial evidence contained in the written record.

&nb= sp;

3.   Elements of Conditional Permi= t: The applicant has the burden of addressing the following:

a.      The heig= ht of proposed tower or other structure is necessary to provide personal wireless services;

&nb= sp;

b.     The effe= ct of the proximity of the facility to residential development or zones;

&nb= sp;

c.      Nature o= f uses on adjacent and nearby properties;

&nb= sp;

d.     Surround= ing topography;

&nb= sp;

e.      Surround= ing tree coverage and foliage;

&nb= sp;

f.       Design o= f the facility, with particular reference to design characteristics that have the effect of reducing or eliminating visual obtrusiveness;
&nb= sp;

g.     Proposed ingress and egress to the site;

&nb= sp;

h.      Availabi= lity of suitable existing sites and other structures as discussed herein;

&nb= sp;

i.       = Visual i= mpacts on view sheds, ridge lines, and other impacts by means of personal wireless service facility location, tree and foliage clearing and placement of incidental structures; and;

&nb= sp;

j.       = Availabi= lity of alternative siting locations;

&nb= sp;

k.      All outs= ide storage related to the operation of the personal wireless service facility shall be screened from neighboring view, and shall not emit loud noises or obnoxious gases or fumes. Out= door storage unrelated to the operation of the personal wireless facility is prohibited.

&nb= sp;            =

C.   Information Required

Each app= licant requesting a Conditional Use Permit under this ordinance shall submit a sca= led plan in accordance with the Site Plan Review Regulations and further information= including; a scaled elevation view, topography, radio frequency coverage, facility hei= ght requirements, setbacks, drives, parking, fencing, landscaping, adjacent uses (up to 200’ away from the property line), and any other information deemed necessary by the Planning Board to assess compliance with this ordinance. Furthermore, the applicant shall submit the following       prior to any approval by the Board= :

        &= nbsp;

1.      The appl= icant shall submit written proof that the proposed use/facility complies with the= FCC regulations on radio frequency (RF) exposure guidelines.<= /p>
&nb= sp;

2.      The appl= icant shall submit written proof that an evaluation has taken place, as well as t= he 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.

&nb= sp;

3.      Each app= licant for a facility shall provide to the Planning Board an inventory of all exis= ting facilities that are within the jurisdiction of the Tow= n and those within five miles of the border thereof, including specific informati= on about the location, height, design of each facility, as well as economic and technological feasibility for co-location on the inventoried facilities.= The Planning Board may share such information with other applicants applying for approvals or conditional use permits under this ordinance or o= ther 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 s= ites are available or suitable.

&nb= sp;

If the applicant is proposing to build a new tower or other ground mounted structu= re, the applicant shall submit written evidence demonstrating that no existing structure can accommodate the applicant’s proposed facility. This evidence will consist of:

&nb= sp;

a.      Substant= ial 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.

&nb= sp;

b.     Substant= ial Evidence that existing structures, including towers are not of sufficient height to meet the applicant’s engineering requirements, and why.

&nb= sp;

c.      Substant= ial Evidence that the existing towers or structures do not have sufficient structural strength to support applicant’s proposed antenna and relat= ed equipment.

&nb= sp;

d.     Substant= ial Evidence that the 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.=

&nb= sp;

e.      Substant= ial Evidence that the fees, costs, or contractual provisions required by the ow= ner in order to share the existing tower or structure are unreasonable. Costs exceeding new tower developm= ent are presumed to be unreasonable.

&nb= sp;

f.       Substant= ial Evidence that the applicant can demonstrate other limiting factors that ren= der existing towers and structures unsuitable.

4.   The applicant proposing to build a tower or ground   mounted structure shall submit an agreement with the Town = that allows for the maximum allowance of co-location upon         the new structure to t= he extent such co-location can exist while minimizing adverse impacts noted in I(A). Such statement shall become a Cond= ition to any Approval. This stateme= nt shall, at a minimum, require the applicant to supply available co-location = for reasonable fees and costs to other telecommunication providers. Failure to provide suc= h an agreement is evidence of the applicant’s unwillingness to cooperate w= ith the orderly and well-planned development of Pelham, and is ground for a Denial.

5.   The applicant shall submit the engineering information detailing the size and coverage required for the fa= cility location. The Planning Board = may have any submitted information reviewed by a consultant for verification of= any claims made by applicant regarding technological limitations and feasibility for alternative locations, or any other matter required by the application. Cost for this re= view shall be borne by the applicant in accordance with 676:4, I(g).<= /span>

D.   Waivers to Section 307-60

&nb= sp;            =

1.   General

&nb= sp;

Where the Board finds that extraordinary hardships, practical difficulties, or unnecessary and unreasonable expense would result from strict compliance wi= th the terms of Section 307-60 or the purposes of these regulations may be ser= ved to a greater extent by an alternative proposal, it may approve waivers to t= hese regulations. The purpose of granting waivers under provisions of these regulations shall be to insure t= hat 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 f= ind that all of the following apply:

&nb= sp;

1.      The gran= ting of the waiver will not be detrimental to the public safety, health or welfa= re or injurious to other property and will promote the public interest.

&nb= sp;

2.      The waiv= er will not, in any manner, vary the provisions of the Pelham Zoning Ordinance, Pelham Master Plan, or Official Maps.

&nb= sp;

3.      Such wai= ver(s) will substantially secure the objectives, standards and requirements of the= se regulations.

&nb= sp;

4.      A partic= ular 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 no= t be limited to:

&nb= sp;

a.      Topograp= hy and other site features

&nb= sp;

b.     Availabi= lity of alternative site locations

&nb= sp;

c.      Geograph= ic location of property

&nb= sp;

d.     Size/mag= nitude of project being evaluated and availability of co-location.

&nb= sp;

2.   Conditions<= /p>

        &= nbsp;         In approving waivers, the Board may impose such conditions as it deems appropr= iate to       &nbs= p;            &= nbsp;          substantial= ly secure the objectives of the standards or requirements of these regulations= .

&nb= sp;

3.   Procedures<= /p>

      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.=

4.   Variations

        &= nbsp;

Any other variations from Article X, excluding Section 307-60, will require appropria= te action from the Board of Adjustment.

307-61 Bonding, Security and Insurance

Recogniz= ing the extremely hazardous situation presented by inadequately maintained or abandoned and unmonitored facilities, the Planning Board shall set the form= and amount of security that represents the cost for removal and disposal of abandoned facilities in the event that the facility is abandoned or inadequately maintained and the facility owner is incapable and unwilling to remove or maintain it. Furthe= rmore, the Planning Board shall require the submission of proof of adequate insura= nce covering accident or damage.

307-62 Removal of Abandoned Antennas and Facilities

Any ante= nna or facility that is not operated for a continuous period of 12 months shall be considered abandoned and hazardous to the public health and safety. The owner shall remove the abandon= ed structure within 90 days of receipt of a declaration of abandonment from the Town notifying the owner of such abandonment. A declaration of abandonment shall= only be issued following a public hearing, noticed per Town regulations, with no= tice to abutters and the last known owner/operator of the facility. If the abandoned facility is not r= emoved within 90 days the Town may execute the security and have the facility remo= ved. If there are two or more users of a single facility, this provision shall not become effective until all users cease using the facility.

307-63 Enforcement

&nb= sp;

Enforcem= ent of this section shall be in accordance with Chapter 676 of the New Hampshire Revised Statutes Annotated and Pelham Zoning Ordinance.

307-64 Saving Clause

If any provision of this ordinance is found to be unenforceable or unlawful by a c= ourt of competent jurisdiction, the ordinance shall be considered savable and su= ch a finding shall not be construed to invalidate the remainder of the ordinance= .

&nb= sp;

&nb= sp;

ARTICLE XI<= /b>

SIGNS

&nb= sp;

307-65 Scope and Intent

Only the following signs shall be permitted: town and state highway directional= and regulatory signs, historic signs and those signs used to advertise the profession or goods dealt in by the owner or occupant of property on which placed.

[Amended= by March, 1999 Town Meeting]

The Town of Pelham has determined that:

A.&= nbsp; There is a public responsibility to protect the safety and welfare of its citizen= s;

B.&= nbsp; There is a substantial interest in maintaining and enhancing the aesthetic appear= ance of all residential, commercial and industrial areas of Town; and=

C.&= nbsp; There is a substantial interest in enabling business and industry to advertise effectively.

307-66 Purpose

The intent of this Ordinance is to allow signs that:

A.&= nbsp; Give information and directions;

B.&= nbsp; Build the image of business and industry;

C.&= nbsp; Incorporate new technologies; and

D.&= nbsp; Compliment the character of the zoning district land use.

It is further intended that the sign ordinance will help= the Town in its efforts to protect the safety and welfare of the public.

307-67 Title

This division shall be known as the "Town of Pelham, N.H., Sign Ordinance"; and may be so cited.

307-68  &nbs= p; Sign Per= mit

Except as otherwise provided in this Ordinance, it shall= be unlawful for any person to erect, construct, enlarge, move or convert any s= ign in the Town of Pelham, or cause the same to be done, without first obtainin= g a sign permit for each such sign from the building official as required by th= is code. This prohibition shall = not be constructed to require any permit for a change of copy on any sign, nor for= the repainting, cleaning and other normal maintenance or repair of a sign of si= gn structure for which a permit has previously been issued, so long as the sig= n or sign structure is not modified in any way.

All sign applications shall include a color rendering of the proposed sign, a detailed description of materials of construction, illumination, moving components, electronic messages and method of attachment to structure. [Amended 3-14-06 by ballot ATM, Art. = 5]

307-69 Sign Definitions and Restrictions [Amended March 8, 2005 ATM; amended 3-14-06 AT= M]

The following definitions and restrictions shall apply throughout these regulations:

A.&= nbsp; Abandoned Sign: The cessation of us= e of a sign as indicated by the visible or otherwise apparent intention of an owne= r to discontinue the use of a sign and/or structural framework.

B.&= nbsp; Administration & Enforcement: The bu= ilding official is hereby authorized to review all sign applications and to enforce the provisions of this regulation.

C.&= nbsp; Area: The area, on the largest single fa= ce of a sign, within a perimeter which forms the image area of a sign. If the sign consists of more than = one module, the total area of all modules shall constitute the sign area. If a sign is lettered on both side= s back to back, only one side shall be counted as the total sign area.<= /span>

D.&= nbsp; Awning Sign: A removable shelter= of canvas, plastic, metal or some other material, extending over a doorway or window and providing shelter from rain or sun, with sign message incorporated. Awnings with gr= aphics will be considered a form of a wall sign.&= nbsp; A permit is required.

E.&= nbsp; Banner Sign: A temporary sign of lightweight matter (e.g. paper, plastic or fabric) hung either with or with= out frames. This will only be all= owed for a maximum of thirty (30) days, two (2) times during each calendar year. The banner may not exce= ed one hundred (100) square feet in area. Alternatively, a banner may be used as a temporary sign (see "temporary sign"). A permit is required.

F.&= nbsp; Billboards: Any sign visible from a public right-of-way identifying or advertising a business, person, activity, goods, product or services. This is considered a form of a ground sign (see "ground sign"). A permit is required. Off premises billboards are not permitted (see "off premises").

G.&= nbsp; Building or Face Wall: A wall area= of a building in one plane or elevation.

H.&= nbsp; Building Name Sign: A building nam= e sign shall identify the building and shall be a maximum of twelve (12) square fe= et in area. No permit is require= d.

I.&= nbsp;   Building Officials: The official appointed under by the Board of Selectmen to review and issue sign permits.= [Amended 3-14-06 by ballot ATM, Art. = 5]

J.&= nbsp; Changeable Copy Sign: A sign on whic= h message copy can be changed through the use of attachable letters and numb/numerals excluding electronic switching of lamps or illuminated tubes to form words = and numerals. It includes a sign = which has automatic switching, limited to time and temperature. This shall be considered a form of ground or wall sign (see "ground or wall sign"). A permit is required.

K.&= nbsp; Charitable: Charitable shall mean and include = the words philanthropic, social service, benevolent, patriotic, civil, educatio= nal, or fraternal, either actual or purported.&= nbsp; Charitable signs shall be subject to the following conditions: =

1.    &= nbsp; May be p= laced a maximum of 30 days preceding the event.

2.    &= nbsp; Shall be located so as not to obstruct a public right-of-way or create a hazard.

3.    &= nbsp; Must be removed within 7 days after the event.

4.    &= nbsp; Size lim= its shall be the same as real estate signs.

    =             &nb= sp;

    =         No permit is required.

L.&= nbsp; Construction or Project Sign: As used = in this regulation, shall mean any sign erected on a project site prior to or during a construction project, with the following restrictions:<= /span>

1.    &= nbsp; Maximum = area shall be 32 square feet, except on projects that exceed one acre in size, w= here the maximum area shall be 64 square feet.

2.    &= nbsp; Height a= nd setback shall be commensurate with the underlying district.

3.    &= nbsp; Must be removed within 15 days from the date on the certificate of occupancy permit= (if applicable), expiration, or loss of building permit, upon completion of wor= k, or upon installation of a permanent sign.

        &= nbsp;           &nbs= p;

No permit is required.

M.&= nbsp; Directional Sign: Signage which is necessary for on-site public safety and convenience. Directional signs may be located adjacent to driveways. Examples: "In&quo= t;, "Out", "Entrance", "Exit", and "Parking". No permi= t is required.

N.&= nbsp; Electrical Sign: Any sign containing electrical wiring.

O.&= nbsp; Electronic Changing Sign: Message ce= nter signs shall not exceed a maximum of fifty (50) percent of the allowed area = of a ground sign or wall sign. Gro= und sign face(s) shall be perpendicular to the right-of-way. A maximum of one (1) message cente= r per premises. A permit is require= d.

P.&= nbsp; Flag: National, state or corporate flags properly displayed shall be allowed in all districts with no sign permit required. Corporate signs sha= ll be limited to a maximum area. Th= e set back shall be the same as for ground signs. No permit is required.<= /span>

Q.&= nbsp; Flashing Sign: Any sign containing intermittent flashing light by means of an animation or an externally mount= ed intermittent light source, or chase lights. The colors blue, red, yellow and g= reen are not permitted.

R.&= nbsp; Frontage: The length of the property line of= any one premises along each public right-of-way it borders.

S.&= nbsp; Ground Sign: A sign erected on a free-standing frame, mast or pole and not attached to any building, subject= to the following conditions:

1.    &= nbsp; Maximum = sign area shall be fifty (50) square feet.

2.    &= nbsp; Minimum setback of the sign shall be fifteen (15) feet from a right-of-way or prope= rty line, with a maximum sign height of eighteen (18) feet. Signs for businesses located on a = State highway shall have no setback to the right-of-way but adhere to a fifteen (= 15) feet setback to the side property lines.

3.    &= nbsp; Minimum setback from an intersection shall be twenty-five (25) feet from the point = of the intersecting rights-of-way.

4.    &= nbsp; As an alternate for a corner premises, an allowed ground sign may be replaced by = two (2) ground signs, each meeting all of the following conditions:<= /span>

a.    &= nbsp; Each sign shall be designed to be viewed from a different right-of-way.

b.     = Maximum = sign area of each sign shall be twenty-five (25) square feet.<= /p>

c.    &= nbsp; Minimum setback of signs shall be twenty (20) feet from right-of-way with a maximum sign height of eighteen (18) feet; or the minimum setback of the signs may = be reduced to ten (10) feet from right-of-way with a maximum sign height of ten (10) feet. A permit is requir= ed.

&nb= sp;

T.&= nbsp; Height of Sign: The vertical dis= tance measured from the adjacent undisturbed grade of ground to the highest point= of the sign. Freestanding signs = shall not exceed eighteen (18) feet in height.&n= bsp; Any attached sign shall not project above or beyond the limits of the building on which it is viewed.

U.&= nbsp; Incidental Sign: A sign identifying = or advertising associated, goods, products, services, or facilities available = on the premises. Incidental signs include, without limitation, trading stamps, credit cards accepted, brand n= ames or price signs. The limit sha= ll be three at 1.5 square feet each. No permit is required.

= V.     = Maintain= : To permit a sign, sign structure o= r any part of each to continue; or to repair or refurbish a sign, sign structure = or any part of each. A sign shal= l be maintained in good repair for public safety and aesthetics.

&nb= sp;
W. Mobile Signs: Any sign mounted on wheels or a wh= eeled trailer primarily situated and decorated to display an advertising message. Signs will only be allowed for a m= aximum        &= nbsp;    of 30 days, 2 times per calendar year. Sign may not exceed 32 square feet in area. A =          permit is required.

X.&= nbsp; Nameplate and Historic Markers: A non-electrical sign identifying only the name and occupation or profession = of the occupancy of the premises on which the sign is located. If any premises includes more than= one occupant, nameplate means all names and occupations or professions as well = as the name of the building and directional information. The sign shall be a maximum of thr= ee (3) square feet in area. No permi= t is required.

Y.&= nbsp; Non-electrical Sign: Any sign that does = not contain electrical wiring or its own source of illumination, such as a wood sign, carved sign, routered sign, sandblasted sign, or painted sign, etc.

Z.&= nbsp; Off-Premises Sign: Any sign visible fr= om a public right-of-way identifying or advertising a business, person, activity, goods, products or services not located on the premises where the sign is located or maintained. Not permitted.

AA. On-Premises Sign: Any sign visible from a public right-of-way identifying or advertising a business, person, activity, goods, products or services located on the premises where the sign is installed or maintained. A permit is requi= red.

BB. Political Sign: A sign advertising a candidate for political office. These signs= are allowed in all districts, without the need for a sign permit. They may be established 30 days pr= ior to the event or election, and shall be removed within 10 days after the event = or election. Political signs sha= ll not be placed or affixed to premises without the consent of the owner. Only the property owner may affix = such signs to his home, buildings on the premises or trees on the premises. No permit is required.<= /span>

CC. Portable Sign: See temporary sign, infra.

&nb= sp;

DD. Premises: A lot or group of lots on which are situated a building or group of buildings designated as a unit, or on which= a building or a group of buildings are to be constructed.
&nb= sp;

EE. Real Estate Directional Sign= : Real estate signs advertising an o= pen house, and located off premises. Signs shall not be nailed to trees or telephone poles not owned by t= he Realtor. No permit is require= d.

&nb= sp;

FF.   Real Estate Sign: Any sign advertising exclusively t= he sale, rental or lease of the premises, or a portion thereof, upon which the sign is located. Such signs m= ust be removed within 15 days after the closing of the sale, rental or lease. Such signs are subject to the foll= owing restrictions:

1.    &= nbsp; Number a= nd type: one (1) non-electrical = ground or wall sign per premises, per street frontage.

2.    &= nbsp; Maximum = sign area (including Real Estate Rider Boards): eight (8) square feet for residential; thirty-two (32) square feet for multiple structures within residential developments such as apartment complexes; and sixty-four (64) square feet for business and industrial.

3.    &= nbsp; Height a= nd setback requirements commensurate with underlying zone.

4.    &= nbsp; On-site = real estate signs must be removed within 15 days after sale, rental or lease; and off-site signs (including balloons) advertising an open house, may be locat= ed for a duration not to exceed 15 days. No permit is required.

GG. Roof Sign: A sign erected upon, against or di= rectly above a roof, or on the top of or above the parapet of a building, subject = to the following restrictions:

1.    &= nbsp; Maximum = sign area measured in square feet shall be two (2) times the building frontage if there is no other sign type; one and one-half times the building frontage if there is a wall sign or projecting sign, or one-hundred fifty (150) square = feet, whichever is least.

2.    &= nbsp; Roof sig= ns shall be set back a minimum of three (3) feet from the projecting plane of = the building's exterior wall. It = is the intention of this provision to provide a clear passageway around or under t= he sign.

3.    &= nbsp; Maximum = number of roof signs shall be one (1).

4.    &= nbsp; Roof sig= ns shall not extend more than ten (10) feet above the roof.<= /p>

5.    &= nbsp; Sign con= tent shall refer to on-site business identification only. A permit is required.

HH. Rotating Sign: Any sign, or portion of a sign, wh= ich moves in any manner. It is considered a form or ground, wall or roof sign. A permit is required.

&nb= sp;

II.     Sign: Any sign, illuminated or non-illuminated, or presentation by words, letters, figures, designs or pictures, publicly displayed to give notice relative to a person, business, goods, products, a service, activity or a solicitation. "Sign" includes identification, advertising and informational signs, and also includes any permanently installed or situated merchandise (other than a structure). For the purpose of removal, "Sign" shall also include the sign structure. No permit is required for signs installed by government bodies and utility companies. A maximum of three (3) types of si= gns per premise are permitted, with no more than one (1) from each of the follo= wing categories: ground, wall, roof or projecting. Alterations that include repaintin= g, changing copy or replacement of the existing sign face will not require a permit, unless the replacement of the sign face is intended to change the n= ame of the business and/or owner, or if the complete sign structure is changing= to new signage.

&nb= sp;

JJ.   Sign Structure: Any structure which supports or is capable of supporting any sign, including decorative cover. A sign may be a single pole and ma= y or may not be an integral part of a building or structure.
&nb= sp;

KK. Subdivision Identification Sign<= /u>: A sign intended to identify the na= me of a residential subdivision located in a residential district. Subdivision signs shall be located= at the main entrance to the subdivision project (see real estate and construct= ion project signs). No permit is required.

&nb= sp;

LL.   Temporary Sign: any sign, except political, religi= ous, municipal or personal signs, which is not permanently installed or affixed = to any sign structure or building. Signs shall only be displayed for special events or on accepted civic, patriotic = or religious holidays. Each business shall be allowed one (1) sign not to exce= ed thirty-two (32) square feet. Temporary signs shall not be maintained longer than thirty (30) days in any ninety (90) day period whatsoever. Signs shall= not be attached to fences, trees, utility poles, rocks or other parts of a natu= ral landscape, nor be placed in a position that will obstruct or impair traffic= or in any manner to create a hazard or disturbance to the health, safety, and welfare of the general public. Such signs may not be flashing or illuminate= d; and must be set back at least ten feet from the edge of the right-of-way. [Amended March 8, 2005 ATM]

&nb= sp;

MM. Temporary Window Sign: Any sign which is not permanently installed or affixed to any window. No permit is required.

&nb= sp;

NN. Wall Sign: Any sign attached to, painted on or erected against any wall of a building or structure so that the exposed fac= e of the sign is on a plane parallel to the plane of the wall. "Wall Sign" shall includ= e any sign erected against, installed on or painted on a penthouse above the roof= of a building as long as the wall of the penthouse is on a plane parallel to t= he wall of the building a sign attached to, painted on or erected against a fa= lse wall or false roof that does not vary more than thirty degrees from the pla= ne of the adjoining elevation. W= all signs shall be subject to the following restrictions:

1.    &= nbsp; Maximum = sign area measured in square feet shall be two (2) times the building frontage if there is no other sign type; one and one-half (1 ½) times the buildi= ng frontage if there is a ground sign; one (1) times the building frontage if there is a wall sign; or fifty (50) square feet, whichever is least.

2.    &= nbsp; Business= Groups. Groups of three (3) or more busine= sses on a single lot, such as a plaza or shopping center, may observe the follow= ing: one (1) principle freestanding sign of twelve (12) square feet in area identifying the plaza or center name with no more than an additional twelve (12) square foot panel for each business for the purpose of identification. Total aggrega= ted sign area shall not exceed fifty (50) square feet.

307-70   General Regulations

= A.     = Except f= or indicators of time and temperature, no sign or part of any sign shall flash, rotate, move or make noise;

= B.     = Signs sh= all be illuminated internally or by external shielded light directed solely at the sign in such a manner as to prevent glare for motorists and pedestrians, and such that the light source and lenses shall not be visible from any residen= tial district.

307-71 Administration and Enforcement

The building official is hereby authorized to review all sign applications and issue permits and to enforce the provisions of this regulation. This ordinance sh= all supersede all other town ordinances and site review regulations, where inconsistent therewith, except as provided in the following paragraph. Any alteration (as defined in item= KK of the above section) of existing signs shall conform to the provisions of this ordinance.

In the event that any Federal, State, or Town agency imp= oses more stringent requirements than those found in this ordinance, the stricter standards shall in all cases apply.

307-72 Fees=

&nb= sp;

The following are permit fees as required under this ordinance:

&nb= sp;

    =         a.         = Mobile signs..........................................= .......... $10.00

    =

    =         b.         = Signs w/area under 50 SF..................= ............... $15.00

    =

    =         c.         = Signs w/area of 51 to 100 SF..............= .............. $25.00

    =

    =         d.         = Signs w/area of 101 to 300 SF.............= ............. $50.00

    =

    =         e.         = Signs w/area over 300 SF..................= ............... 100.00

&nb= sp;

Fees for multiple signs for a single premise shall be determined by total square footage.

ARTICLE XII

SPECIAL EXCEPTIONS

&nb= sp;

307-73 Gene= ral Requirements

&nb= sp;

Unless otherwise specified, the ZBA shall permit a use by special exception subject to the following conditions:

A.&= nbsp; the use requested is listed as being permitted by special exception in Table 1 = or elsewhere in this Ordinance, for the district in which the use is requested= ;

B.&= nbsp; the proposed use is consistent with the purpose and intent of the district with= in which it is proposed to be located;

C.&= nbsp; the proposed use meets all other applicable requirements under this Ordinance, = and

D.&= nbsp; the proposed use is compatible with character of the surrounding neighborhood or area.

307-74 Additional Requirements for Accessory Dwelling Units [Amended March 8, 2005 ATM]

A single-family home may contain not more than one acces= sory dwelling unit, attached to the principal dwelling, subject to the following conditions.

Purpose and Intent

&nb= sp;

In order= to provide for non-rental housing alternatives for immediate family members or family caregivers, a single family home may contain not more than the one accessory dwelling unit, while maintaining neighborhood aesthetics, quality, and intent, subject to the following conditions:

&nb= sp;

Definiti= ons

Common W= all: The wall that separates the living= space of the primary dwelling unit from the living space of the accessory dwellin= g.

A.      The acce= ssory dwelling unit shall be clearly secondary to the primary dwelling.

B.      Accessory dwelling units shall not contain more than one bedroom and shall not exceed= 750 square feet of living area, exclusive of entryways, or 75% of the footprint of the primary dwelling, whichever is less. [Amended March 8, 2005 ATM]

C.      Accessory dwelling units shall be considered as one and one half (11/2) bedrooms for = the purposes of septic system design and Planning Board Subdivision Regulations= and be allowed only where the waste disposal system is on file and has been approved by the New Hampshire Water Supply and Pollution Control Division (N.H.W.S.P.C.D.).

&nb= sp;

      In the case= of a previously existing N.H.W.S.P.C.C. approved system, the Code Enforcement Officer      sha= ll be required to certify that the existing system is in good working condition a= nd the applicant shall    also include a subsurface waste disposal system design approved by the N.H.W.S.P.C.C. that demonstrates that the lot can accommodate the combined flows of the primary dwelling and accessory unit to be installed in the eve= nt of a system failure.

      =

      If an appro= ved N.H.W.S.P.C.C. design is not on file, a system adequate for the proposed combined flows of the primary dwelling and accessory unit must be designed = and installed.

D.     The exte= rior of the dwelling shall be designed such that it has the characteristics and appearance of a single family residence.&n= bsp; No new entrance or exit to an accessory dwelling shall be constructed facing the front of the single family residence.

E.      An acces= sory dwelling shall be constructed either within or attached to a single family residence.

F.      Where the Accessory Dwelling unit is attached, the common wall between the accessory = unit and primary dwelling must have an area that is at least 75% common with both units.

G.     At least= one interior unlocked passage shall be provided in the common wall between the primary dwelling and the accessory dwelling.

H.      The driv= eway shall be designed so as to appear as a driveway of a single family residenc= e, and no new curb cut from the street shall be constructed. Adequate off-street parking shall = be provided to support the vehicles of the primary and accessory units.

I.      =    The structure and lot shall not be converted to a condominium or any other form of legal ownership distinct from the ownershi= p of the existing single family residence.

J.      = An acces= sory dwelling unit shall not be permitted anywhere except in a single family res= idence.

&nb= sp;

307-75 Other Uses in the Residential District

The following additional conditions apply to all other u= ses permitted by special exception in the Residential district.

A.&= nbsp; Not less than two-hundred (200) feet of frontage is provided on a major or minor thoroughfare or arterial or collector street or access to the site is provi= ded by a right-of-way of not less than fifty (50) feet in width directly from a major or minor thoroughfare or arterial or collector street.

&nb= sp;

B.&= nbsp; Primary ingress and egress is provided from a major or minor thoroughfare or arteri= al or collector street.

C.&= nbsp; No off-street parking shall be located within required setbacks or between any principal building and a public right-of-way unless all such buildings and parking areas are completely screened from view.

D.&= nbsp; The exterior of buildings and ground shall be maintained in a manner compatible with the rural/residential character of the district.

= E.     = Site Plan review and approval shall be obtained from the Planning Board.

307-76 Additional Requirements for Home Occupations

I. Purpose and Intent

1.    &= nbsp; It is th= e will of the people that a harmonious balance be established between the needs of= the individual who operates a home occupation and to the abutting residents.

2.    &= nbsp; Protect residential areas and property values.

3.    &= nbsp; Permit residents of the community a broad choice in the use of their property.

4.    &= nbsp; To estab= lish criteria for home occupations.

II.     Minor Ho= me Occupations [Amended March 8, 2005 ATM, Amended 3-14-06 ATM]

A Minor Home Occupation is an accessory use of a home or accessory structure for the purpose of conducting any non-agriculture busin= ess activity by a resident of that home that meets the following conditions. Ho= me Occupations expressly do not include the parking or storage of tractor trai= lers, auto body, auto repair or small engine repair or maintenance, or other uses which involve the visible storage on the property of automobiles or the par= ts thereof. [Amended March 8, 2005 ATM]

1.    &= nbsp; The occu= pation is clearly secondary and subordinate to the primary residential use.

2.    &= nbsp; A maximu= m of one on site non resident employee.

3.    &= nbsp; Any use = that may be objectionable, noxious or injurious by reason of the production or emission of odor, dust, smoke refuse matter, fumes, noise, vibration, heat = or excessive illumination is prohibed. In addition, the use, storage or dispos= al of hazardous materials, chemicals, by-products, medical waste or similar it= ems considered dangerous to health and safety shall not be permitted without fu= ll local and state regulatory approval. [Amended 3-14-06 by ballot ATM, Art. 6]

4.    &= nbsp; No incre= ase in traffic volumes beyond what is normally generated within the neighborhood.<= o:p>

5.    &= nbsp; One (1) = sign which advertises the minor home occupation is permitted. It shall not exceed 1.5 sq. ft. in area and shall not be directly illuminated. The sign must be= of a design and color appropriate for a residential setting. In the event a se= cond minor home occupation exists within the same dwelling, and where the additi= onal business meets all provisions of the section, an additional sign of identic= al size and design is permitted. No more than two (2) signs may be used for any combination of minor home occupations conducted within the boundaries of any individual lot. A sign permit is required for each sign. [Added 3-14-06 by ballot ATM, Art. 6]

6.    &= nbsp; A maximu= m of one registered vehicle related to the business may be kept in view. All other business related equipme= nt must be garaged.

7.    &= nbsp; Delivery= of goods and materials is limited to vehicles customarily associated with residential deliveries.

8.    &= nbsp; The sale= of three (3) or more vehicles per year shall be considered a home occupation a= nd shall not be permitted. [Amended M= arch 8, 2005 ATM]

Minor Home Occupations are permitted as an accessory use without the approval of any Town board or official in all Zoning Districts within which residential uses are permitted.

III. General Home Occupations

A general home occupation is an accessory use of a home = or accessory structure for the p= urpose of conducting any non-agricultural business activity by a resident of that = home that meets the following conditions and for which a Special Exception is required.

1.    &= nbsp; The occu= pation is clearly secondary and subordinate to the primary residential use and sha= ll not change the residential character of the neighborhood.=

2.    &= nbsp; It shall= not consume more than 49% (forty-nine percent) of the gross residential living space and shall not change the residential character of the property.<= /o:p>

3.    &= nbsp; A maximu= m of two on-site non resident employees.

4.    &= nbsp; Not perm= itted in a duplex or multi-family dwelling.

5.    &= nbsp; One sign= which advertises the business is permitted. It shall be unlighted and shall not exceed three square feet.

6.    &= nbsp; All outd= oor storage, display, and any other external indication of the business activity shall be screened from neighboring view.

7.    &= nbsp; Any use = that may be objectionable, noxious or injurious by reason of the production of emission of odor, dust, smoke, refuse matter, fumes, noise, vibration, heat= or excessive illumination is prohibited. In addition, the use, storage, or disposal of hazardous materials, chemicals, by-products, medical waste or similar items considered dangerous= to health and safety shall not be permitted without full local and state regulatory approval.

8.    &= nbsp; A maximu= m of two registered vehicles related to the business may be kept in view. All other business related equipme= nt must be garaged and screened from neighboring view.

9.    &= nbsp; Delivery= of goods and materials is limited to vehicles customarily associated with residential deliveries.

10. Customer parking shall be provided off-street and may not be located within the requ= ired front, side or rear setbacks of the property.

11. No retail sales other than those that are incidental to and customarily associated wi= th business use for which the permit was issued.

12. An acces= sory structure built or converted for home occupation purposes shall be a size, style and type that is compatible with the surrounding neighborhood and cap= able of reversion to uses that are customarily accessory to residential.

13. Where the proposed General Home Occupation shall result in an increase of the amount = of waste water to be discharged it shall be shown by the applicant that there = is subsurface waste water disposal system that has been approved by the New Hampshire Water Supply and Pollution Control Commission (NHWSPCC) or that a system adequate for the proposed use shall be installed as a condition of issuing a Special Exception.<= o:p>

14. The BOA = may impose any other reasonable conditions on the home occupation that are necessary to protect the residential character of the neighborhood.

15. Site plan review and approval shall be obtained from the Planning Board.

ARTICLE XIII

ENFORCEMENT AND MISCELLANEOUS

&nb= sp;

307-77 Severability

The invalidity, unconstitutionality or illegality of any article, section or provision of this Ordinance or of any zoning district or boundary shown on the zoning map, shall not have any affect on the validity, constitutionality or legality of any other article, section, provision, zon= ing district or district boundary.

307-78 Authorization to Administer Ordinance

It is the authority of the Board of Selectmen to adminis= ter and enforce this Ordinance.

307-79 Zoning Administrator

The Board of Selectmen shall designate a zoning administrator to administer and enforce this Ordinance under their general supervisory authority.

307-80 Review of Applications

It shall be the duty of the Zoning Administrator to revi= ew all applications for building permits to determine that the application conforms to the provisions of this Ordinance.

307-81 Violations and Penalties

Any person, firm or corporation violating any of the provisions of this Ordinance shall be deemed guilty of a misdemeanor and sh= all be punished by a fine for each day of the violation of not more than one-hundred dollars ($100). E= ach day that the violation is permitted to exist shall constitute a separate violation. Such fines shall b= e in addition to any other remedies for violation as provided for under state la= w.

307-82 Zoning Board of Adjustment - Administration

A.&= nbsp; The Zoning Board of Adjustment (ZBA) shall consist of five (5) regular members = and five (5) alternate members, who shall be appointed by the Board of Selectme= n as provided by the New Hampshire Revised Statues Annotated.<= /p>

B.&= nbsp; The ZBA shall adopt rules in accordance with the provisions of this chapter.

C.&= nbsp; Meetings of the ZBA shall be held at the call of the Chairman and at such other time= s as the ZBA may determine. Such Chairman, or in his absence the Acting Chairman, may administer oaths and compel the attendance of witnesses. The Board shall keep minutes of its proceedings, showing the vote indicating such fact, and shall keep records = of its examinations and other official actions, and shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the Board and shall be a public record.

307-83 Powers of the ZBA

The ZBA shall have the following powers:

A.&= nbsp; Appeals. The power to hear and decide appea= ls where it is alleged there is an error in any order, requirement, decision or determination made by an administrative official in the enforcement of this Zoning Chapter.

B.&= nbsp; Special exceptions. The power to hear= and decide requests for special exceptions as authorized by this Zoning Chapter= .

C.&= nbsp; Variances. The power to authorize upon appeal= in specific cases such variance from the terms of this Zoning Chapter as will = not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of the Zoning Chapter will result in = unnecessary hardship, and so that the spirit of the Zoning Chapter shall be observed and substantial justice done.

307-84 Application procedure

Applications appealing an administrative decision seekin= g a special exception or requesting a variance shall be in writing, shall be si= gned by the property owner applicant, shall be accompanied by such fees as the B= oard deems necessary to defray its costs in processing the application in question. The property plan s= hall contain such information as the Board determines to be necessary for it to reach a decision. In appropri= ate cases, the Board may require that the plan shall be prepared by a registered professional engineer or registered land surveyor. The application shall list the nam= e and current mailing address of each abutter to the property in question. An “abutter” is define= d as anyone who owns property immediately adjacent to or within two hundred (200) feet of any portion of the property in question.

A.&= nbsp; Appeals. Applications appealing an administ= rative decision shall specify the grounds for the appeal. The officer from whom the appeal is taken shall forthwith transmit to the Board of Adjustment all of the papers constituting the record upon which the action appealed from was taken.

B.&= nbsp; Special exceptions. Applications seek= ing a special exception shall quote the section of the Zoning Chapter authorizing= the special exception and shall state how the applicant meets the conditions th= at would entitle him to the special exception provided for by chapter.

C.&= nbsp; Variances. Applications seeking a variance sh= all quote in full the section of the Zoning Chapter from which a variance is sought. The applicant shall a= lso state in writing, to the best of his ability, why he is in need of a varian= ce.

&nb= sp;

307-85 Appeals

Any person aggrieved by a decision of the Zoning Administrator or other officer of the town charged with administering or interpreting this Ordinance may appeal to the Zoning Board of Adjustment. Such an appeal must be made within twenty (20) days from the date of the order or decision complained of in writing, addressed to the clerk of the Zoning Board of Adjustment.

307-86 Hearing Procedure

Hearings before the Board shall be conducted by the Chai= rman or, in his absence, the Acting Chairman who may administer oaths and compel= the attendance of witnesses. At a= ll hearings before the Board, the burden shall be upon the applicant to establ= ish that the administrative decision appealed from is erroneous; or to show tha= t he has met the conditions established for a special exception; or to show that= he has met the criteria for a variance. Abutters and residents of the town shall be permitted to speak on be= half of or against the appeal and to present evidence in support of their positi= on.

307-87 Decisions

The minutes of the Board shall show the vote of each mem= ber upon each question, or, if absent or failing to vote, the minutes shall indicate such fact.

A.&= nbsp; Appeals. If the Board votes to reverse or m= odify the decision of an administrative officer, the reason or reasons for the reversal or modification shall be set forth in the minutes. In exercising its authority in app= eal cases, the Board may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from, and make such order or decisions as ought to be made and, to that end, shall have all the powers of that officer from whom the appeal is taken.

B.&= nbsp; Special exceptions. If the Board vote= s to grant a special exception, it shall set forth in its minutes how the applic= ant has met all of the conditions for the special exception. if the Board votes to deny a speci= al exception, it shall set forth in its minutes which condition or conditions = for the special exception were not met by the applicant.

C.&= nbsp; Variances. If the Board votes to grant a vari= ance, it shall set forth in its minutes how the applicant has met each of the five (5) conditions which must be set forth in order to obtain a variance. if the Board votes to deny a varia= nce, it shall set forth in its minutes which condition or conditions, necessary = for a variance, the applicant failed to establish.

307-88 Variances [Amended March 8, 2005 ATM]

A.   In order for a variance to be legally granted, all of the following five (5) conditions must be present:<= span style=3D'mso-spacerun:yes'>

1.   The variance w= ill not be contrary to the public interest.&nb= sp;

2.   Special condit= ions exist such that literal enforcement of the ordinance results in unnecessary hardship.

&= nbsp;     A. Applicant seeking use variance – Si= mplex analysis

i.  &= nbsp;    The zoning restriction as applied interferes with a landowner’s reasonable use of the property, considering the unique setting of the property in its environment.

ii.  =      No fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property.

iii.  = ;    The variance would not injure the public or private rights of others.

      B. Applicant seeking area variance – Boccia analysis

i.  &= nbsp;    An area variance is needed to enable the applicant’s proposed use of the property given the special conditions of the property.

ii.  =      The benefit sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than a variance.

3.   The variance is consistent with the spirit of the ordinance.



4.   Substantial ju= stice is done.

5.   The value of surrounding properties will not be diminished.

B.&= nbsp; At the hearing on the application, the applicant shall present testimony and o= ther evidence to establish that all five (5) conditions for a variance have been met. The decision of the Board shall be based on evidence presented at the hearing, not on the allegations contained in the application. Abutters and residents shall be entitled to present testimony and ot= her evidence to establish that the applicant has or has not met all five (5) of= the above-listed conditions.

C.&= nbsp; The Zoning Chapter of the Code of the Town of Pelham is part of a Comprehensive Plan and is designed and intended to promote hea= lth, safety and general welfare of the community as delineated in Section 307-2 = of this Ordinance. In determining whether the granting of a variance would violate the spirit and intent of t= he chapter, the Board shall be guided by the general statements of intent cont= ained in Section 307-2 and by the following specific statements of intent.

&nb= sp;

1.   It is the intent of this chapter to preserve the rur= al charm and cultural heritage now attached to the Residential, Rural and Recreation-Conservation-Agriculture Districts of our town.

2.   It is the intent of this chapter to prevent the pollution of our air, brooks, streams, ponds and lakes.

3.   It is the intent of this chapter to permit in each district only those uses specifically authorized by this chapter for each district.

4.   It is the intent of this chapter to prevent overcrow= ding of housing and the creating of blighted areas.

5.   It is the intent of this chapter to support other co= des, regulations, rules and ordinances which have been adopted to carry out the = same or similar purposes as this chapter.

D.&= nbsp; Special exceptions and variances exercised within six (6) months of the date of the= ir granting shall remain in effect until such time as they have not been used = for at least one (1) year. Special exceptions and variances not exercised within six (6) months of the date of their granting shall expire by operation of variances not used for one (1) = year or longer shall expire by operation of law at the end of said one year peri= od.

ARTICLE XI= V

AMENDMENTS; PENALTIES; SEVERABILITY AND WHEN EFFECTIVE

307-89 Amendments [Amended 3/2/76 by ballot by the ATM, Art.9]

This chapter may be amended in the manner prescribed by = the New Hampshire Revised Statutes Annotated.&= nbsp;

307-90 Violations and Penalties [Amended March 8, 2005 ATM]

Any person, whether natural or corporate, violating any = of the provisions of this chapter, shall be fined not more than two hundred seventy five dollars ($275.00) for a first offense and five hundred dollars= ($500.00) for subsequent offences for each day that such violation is found to contin= ue after the conviction date or after the date upon which the violator receives written notice from the municipality that the violator is in violation, whichever is earlier.

307-91 Severability

The invalidity of any provision of this chapter shall not affect the validity of any other provisions.

307-92 When effective

This chapter shall take effect upon its passage.

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#255B-1=

date of print: 3/09/05<= /span>

amended: Section 307-50, 51, 52, 53, 307-88= .A, 307-74.B, 307-76.II, 307-90, 307-40.A.1, 307-69.LL, 307-13, 307-28, 307-41;=

*&= nbsp;*	Minimum Lo= t Size	*&= nbsp;* *&= nbsp;*	*&= nbsp;*	Building Setbacks	*&= nbsp;*
*&= nbsp;*	(sq. ft.)	Frontage	Front	Side	Rear
Single= -Family Dwelling	43,560=	200'	30'	15'**=	15'**=
Two-Fa= mily Dwelling	87,120=	200'	30'	15'**=	15'**=
Multi-= Family Dwelling	130,68= 0*	200'	40'**<= o:p>	30'**<= o:p>	30'**<= o:p>
Senior= & Elderly Developments	217,80= 0***	200= 217;	30R= 17;	30R= 17;	30R= 17;
Commer= cial Uses	60,000=	200'	40'**<= o:p>	30'**<= o:p>	30'**<= o:p>
Indust= rial Uses	87,120=	200'	40'**<= o:p>	30'**<= o:p>	30'**<= o:p>

Uses	R	B	I	Ru	RCA
Single-family dwellings	P	P		P
Two-family dwellings	P	P		P
Multi-family dwellings		P
Accessory Dwelling Units	S	S		S
Elderly Housing	P	P		P
Agricultural Uses	P	P	P	P	P
Home Occupations	S	S		S
Fraternal organizations & membership clubs	S*	P	P	P
Churches and other places of worship	S	P	P	P
Public or private primary, secondary, business or trade schools, colleges, preschools and daycare centers	S	P	P	P
Hospitals and clinics	S	P	P	P
Country clubs, hunting, fishing swimming, tennis or golf clubs.=	S	P	P	P	P
Convalescent or nursing homes	S	P	S	P
Health, fitness or athletic membership club		P	P	P
General retail or wholesale trade		P	P	P
Food & Beverage service establishments		P	P	P
Hotels, motels, inns, rooming houses or tourist cabins		P	P	P
Establishments selling new boats, trailers, aircraft, and related products		P	P	P
Establishments selling new or used (retail) automobiles		P*
Business & professional offices		P	P	P
Theaters & cinemas		P	P	P
Banquet & function halls		P	P	P
Commercial recreation such as bowling alleys, video arcades, or miniature golf<= /o:p>		P	P	P
Light industry & manufacturing			P
Warehousing			P
Private Utility Structures; i.e. windmills, watermills, free-standing solar collectors, etc. that generate power for use on same site [Added 3-14-06 by ballot at ATM, Ar= t. 3]	P**	P**	P**	P**	P**
Junkyards and solid waste disposal facilities				S