Town of Salem, NH Article VII Regulations

§ 490-701 Off-street parking and loading.

[Amended by the 1981 Town Meeting]

A. Intent. To provide for the free movement of ordinary public and private traffic in the streets at all times, to reduce congestion in the streets and to permit the rapid but safe passage of emergency vehicles of all sorts, to facilitate the maneuvering of public emergency equipment in the streets, to facilitate the removal of snow, and for all related purposes, it is declared to be the intent of this section that all structures and land uses be provided with adequate associated off-street vehicular parking space to meet the reasonable parking needs of persons making use of the premises.

B. Existing structures and uses; exceptions.

(1) The off-street parking requirements set forth in the Table of Off-Street Parking Requirements in Subsection E shall apply to all buildings and land uses except those:

(a) In existence at the effective date of adoption of this section.

(b) For which building permits were approved by the effective date of adoption of this section.

(c) Located in Commercial-Industrial Subdistrict A.

(2) After the adoption of this section:

(a) No expansion of a building or use may take place unless the requirements of this section are met with respect to such expansion.

(b) No change of use may take place unless the requirements of this section are met for such changed use.

C. Lot design and landscaping requirements.

[Amended by the 1990, 2004 and 2005 Town Meetings]

(1) Parking lot design, except for one- and two-family dwellings, shall be regulated by the following provisions:

(a) All parking areas and driveways shall be surfaced with a minimum of two inches of bituminous concrete or equivalent material acceptable to the Town Engineer. Parking spaces shall be clearly marked on the parking lot surface.

(b) All parking areas shall be graded and drained so as not to cause puddling or water accumulation within the parking area.

(c) Joint off-street parking facilities may be provided by two or more separate buildings or land uses on the same lot or on contiguous lots, but in such case the total spaces required shall be the sum of the spaces required for the individual buildings and land uses.

(d) Each required off-street space shall be at least nine feet in width and at least 20 feet in length. The minimum parking aisle width for ninety-degree parking shall be 24 feet, except for expansion of existing parking lots where a twenty-two-foot width is already provided.

[Amended by the 2006 Town Meeting]

(e) Handicap parking space requirements must comply with all applicable state and federal regulations.

(f) At least 75% of the required parking spaces for nonindustrial uses must be located within 400 feet (as measured by walking distance) from the nearest public entrance to the building they serve unless the Planning Board determines that all of the following criteria are met:

[Added by the 2008 Town Meeting]

[1] The applicant's particular situation justifies a modification to the requirement;

[2] The site and proposed use(s) are suitable for the proposed parking layout;

[3] There will be no adverse impact on neighboring properties;

[4] There will be no adverse impact on traffic or pedestrian safety; and

[5] The modification will be consistent with the spirit and intent of the parking regulations.

(2) Parking lot landscaping requirements. Parking lot landscaping shall be regulated by the following provisions:

(a) In off-street parking lots for 10 or more cars, but fewer than 50 cars, the area within five feet of the perimeter of such parking lot, except for the entrances to the lot and except where the lot is adjacent to the building that it serves, will be landscaped and adequately maintained with grass, shrubs, shade or ornamental trees or ground cover plantings.

(b) In off-street parking lots for 50 or more vehicles, the Planning Board shall require, within the perimeter of the parking lot, not less than one live shade or ornamental tree for each 2,000 square feet of parking area. Additionally, the area within 10 feet of the perimeter of such parking lot, except for the entrances to the lot and except where the lot is adjacent to the building that it serves, will be landscaped and adequately maintained with grass, shrubs, shade or ornamental trees, or ground cover plantings.

(c) The provisions of this section do not apply to multiple-story parking decks.

(d) In off-street parking lots for 100 or more vehicles, no pavement other than accessways shall be permitted within 20 feet of the front property line. This area shall be grassed or landscaped and may be included in the open space requirement.

D. Conditional use permits.

[Added by the 2008 Town Meeting]

(1) The Planning Board may grant a conditional use permit to modify the requirements of Subsection E in limited respects. provided that the Board finds that all of the following criteria are met:

(a) The modification complies with the purposes of the parking regulations noted in Subsection A.

(b) The applicant's particular situation justifies a modification to the requirements.

(c) The site is suitable for the proposed modification.

(d) There will be no adverse impact on neighboring properties.

(e) There will be no adverse impact on traffic or pedestrian safety.

(f) The aesthetic character of the site and the surrounding area will not be adversely affected.

(g) The modification will be consistent with the spirit and intent of this chapter and the Master Plan.

(2) An applicant is not entitled to a conditional use permit, and the Planning Board may, in its discretion, decline to grant it if the Board determines such permit is not justified or warranted.

(3) This provision is adopted as an innovative land use control pursuant to RSA 674:21, and the Planning Board is vested with sole authority to administer it and to grant the conditional use permits.

[Added by the 2010 Town Meeting]

E. Table of Minimum Off-Street Parking Requirements. Off-street parking requirements are shown in the following table:

	Table of Minimum Off-Street Parking Requirements
	Principal Use	Off-Street Parking Requirements
	Agricultural - road stand	7 per customer service employee
	Colleges, universities, trade schools and vocational institutions	1 per 2 seats and 1 per employee
	Covered skating rinks, bowling alleys and all other similar places of assembly, the capacity of which cannot be measured in terms of seats	1 per 150 square feet of gross floor area
	Group day-care centers and child care centers [Amended by the 2001 Town Meeting]	1 per employee and 1 per every 4 students maximum capacity in Business Office I District or 1 per 7 students maximum capacity in other districts
	Housing: single-family dwelling and apartments	2 per dwelling unit
	Housing for the elderly	1 per dwelling unit
	Industrial: wholesale, warehouse and storage [Amended by the 2004 Town Meeting]	1 per employee and 1 per company vehicle operating from premises and 1 per 1,000 square feet of first 20,000 square feet of gross floor area and 1 per each additional 10,000 square feet of gross floor area
	Industrial: manufacturing, research and testing laboratories [Amended by the 2004 Town Meeting]	1 per employee and 1 per company vehicle operating from premises and 1 per 1,200 square feet of gross floor area
	Medical and dental offices and medical office buildings [Amended by the 2008 Town Meeting]	1 per 250 square feet of gross floor area
	Membership club [Amended by the 1988 Town Meeting]	1 per 150 square feet of gross floor area and 1 per 3 seats for ancillary restaurant and 1 per employee
	Motels and hotels	1 per rental unit and 1 per 5 seats in ancillary restaurant, of gross floor area used, and 1 per 300 square feet of gross floor area for function rooms and other such uses
	Office: business, professional, administrative and bank [Amended by the 1988 Town Meeting]	1 per 300 square feet of gross floor area
	Places of assembly: theaters, auditoriums, churches and other places of assembly with fixed seats (based on maximum capacity)	1 per 3 seats and 1 per 55 inches of permanent bleacher or bench seating space and 1 per 150 square feet of area without permanent seating facilities that is devoted regularly to public assembly and 1 per employee
	Restaurants [Amended by the 2006 Town Meeting]	1 per 75 square feet of gross floor area or 1 per 2 seats, whichever is greater; minimum 25 spaces required for all restaurants
	Retail sales of furniture, automobiles, nursery stock and such other goods as usually involve extensive display areas in relation to customer traffic	1 per 500 square feet of gross floor area
	Retail stores, store groups, shops and service establishments	1 per 200 square feet of gross floor area of first floor area and 1 per 400 square feet of gross floor area above and below first floor
	Sports complex*	0.25 per seat as a general requirement

	NOTES:
	*	Applicant shall submit a traffic analysis which would include but not be limited to design hourly volume (DHV), peak hour traffic entering and leaving the site and generated traffic, and a comprehensive traffic assessment concerning traffic circulation within the parking lot, and conflict points at the site, and adjacent roadways and intersections.

§ 490-702 Signs.

[Amended by the 1988, 1989, 1992, 1997, 2000, 2002, 2005 and 2006 Town Meetings]

A. Purpose. The purpose of this section is to regulate the erection of signs for the purpose of providing information and advertising in an orderly, effective and safe manner. Restrictions on type, location and size of signs protect the public from hazardous and distracting displays and create an attractive environment which is conducive to business, industry, and tourism.

B. Definitions. See § 490-107.

C. Administration and enforcement.

(1) A permit shall be applied for and received from the Building Department prior to erecting, (re)placing, rebuilding, reconstructing, or moving any sign. A permit is not necessary for sign repair and maintenance.

(2) The application for a sign permit shall be accompanied by a sketch plan of the site and elevation drawings of the proposed sign, caption of the proposed sign, and such other data as are pertinent to the application.

(3) All signs shown on an approved site plan may not be altered without the approval of the Planning Board, unless the proposed alteration is to change a tenant name or the effect of the alteration does not make the sign more intensive and/or obtrusive.

(4) In accordance with RSA 676:17, any person who violates any part of this section shall be guilty of a misdemeanor and is subject to a fine of $100 for each day the violation continues after written notification.

D. Permitted signs. Notwithstanding any provisions of this section to the contrary, to the extent that this section permits a sign containing commercial copy, it shall permit a noncommercial sign to the same extent.

(1) Within any Residential, Rural, Recreational, or Garden Apartment District, signs or nameplates advertising those uses permitted in the respective district are permitted with a thirty-foot setback as follows:

(a) For multifamily or multi-unit ("multi" meaning greater than two) structures, one identification sign for which the display area shall not exceed 12 square feet.

(b) For nonresidential uses, one identification sign not exceeding a total of 16 square feet.

(c) Signs shall be painted on or be placed flat against the building facade or detached, provided that they do not exceed six feet in height, and shall not be internally illuminated.

(d) Subdivision development identification signs. One freestanding sign identifying a subdivision is allowed at each entrance to the subdivision with a minimum setback from the right-of-way of five feet, a maximum height of five feet, and a maximum display area of 20 square feet. Such signs may not be located in the public right-of-way.

(2) Within any Commercial-Industrial, Business Office or Industrial District, or Limited Community Shopping District, signs are permitted in accordance with the following table[1] and as restricted by the following subsections:

(a) Freestanding signs.

[1] Where more than one freestanding sign is permitted, the minimum distance between the signs is 300 feet.

[2] Where a parcel fronts on more than one public street (excluding alleys and service ways), the provisions of this subsection shall apply to each frontage.

[3] The maximum portion of a freestanding sign dedicated to changeable copy is 20%.

[4] Minimum setback for freestanding signs may be reduced to 10 feet provided the freestanding sign area is reduced by at least 50%.

[5] All freestanding signs must incorporate the property's street address and plaza name (if any) on the sign.

[6] In the Business Office I District, signs may not be internally illuminated.

[7] Ground/monument signs shall be located perpendicular to the road.

(b) Wall signs.

[1] Linear building frontage refers to building frontage facing on each public right-of-way (excluding service streets and alleys) or interior courtyard/parking area. Businesses without frontage on streets may be allowed one wall sign not exceeding 15 square feet in size.

[2] Lots fronting on more than one public right-of-way may not combine allowable square feet for one frontage with that of another frontage for the purpose of placing the combined area of signs on one frontage.

[3] The maximum permitted area for wall signs may be increased by 10% provided the applicant reduces the area of his permitted freestanding sign(s) by at least 30% and/or reduces the number of freestanding signs permitted on the property.

(c) Roof signs.

[1] All roof signs must be set back a distance of at least four feet from all the outside walls of the building on or over which they are located.

[2] Roof signs are not permitted in the Limited Community Shopping District.

(d) Projecting signs. The projecting sign may exist instead of, but not in addition to, a freestanding sign.

(e) Under canopy signs. Under canopy signs shall be placed perpendicular to the building. In the Limited Community Shopping District, these signs shall be of a carved wooden design.

(f) Commercial temporary signs.

[Amended by the 2009, 2011 and 2019 Town Meetings]

[1] A poster or banner that does not exceed 20 square feet in size is permitted on a building or wall or on an existing freestanding sign, or one A-frame/sandwich board sign up to nine square feet in size and no taller than three feet, or one flag sign that does not exceed six feet in height and two feet in width located at least five feet from a property line, is permitted up to 14 days at a time up to four times per calendar year. Permits are required for these temporary signs.

[2] A sign described in Subsection D(2)(f)[1] above is allowed for 30 days upon the opening of a new business.

(g) Office/industrial park identification signs. Freestanding signs with a maximum display area of 24 square feet are permitted at the entrance to an industrial or office park development with multiple lots. These signs shall be less than six feet in height. Such signs may identify the industrial or office park by name and street address but shall not list the subdivision tenants nor be situated in the public right-of-way.

(h) Directional signs. One such sign is permitted near each driveway path (i.e., lane). The area of each sign may not exceed four square feet. Such signs shall be limited to "in," "out," "enter," "exit," etc. Directional signs shall not be used to advertise the business or products on site.

(i) Illumination. No sign which is visible from a property used for residential purposes shall be illuminated between the hours of 11:00 p.m. and 7:00 a.m. unless the premises on which it is located is open for business.

(j) Signs allowed without permits (provided all other provisions of this section are met):

[1] Real estate signs. One real estate "for sale," "for rent" or "for lease" sign is permitted, provided that:

[a] The size of the sign shall not exceed six square feet in area in districts zoned Residential, Rural, or Recreational or 20 square feet in all other districts.

[b] The sign advertises only the premises on which it is located and is removed promptly after completion of the sale or rental.

[2] Construction signs. Constructions signs are permitted, provided that:

[a] The total area of all signs shall not exceed 20 square feet per lot in districts zoned residential or rural or 32 square feet in all other districts.

[b] The signs are to be maintained on the premises during actual construction and must be removed two days after issuance of a certificate of occupancy.

[3] Political signs shall conform to all New Hampshire state statutes.

[Amended 2011 Town Meeting]

[4] Nameplates for residential uses, but not exceeding four square feet per single-family residence or eight square feet per duplex.

(k) Temporary signs relating to a qualifying event, subject to the following restrictions:

[Added by the 2014 Town Meeting]

[1] Signs shall be no greater than three feet in height and nine square feet in size.

[2] No more than two signs shall be displayed on a single property at any time.

[3] Signs may not be illuminated.

[4] For qualifying events occurring three times per calendar year or less, signs may be displayed for up to two weeks prior to the event plus the duration of the event but shall be removed within 48 hours after the event concludes. For qualifying events occurring more than three times per calendar year, signs may be displayed for six hours prior to the event plus the duration of the event but shall be removed within six hours after the event concludes.

[Amended by the 2015 Town Meeting]

[5] Signs may be located off site and shall be placed at grade level. Signs may be placed on private property in any zoning district with the permission of the private property owner.

[6] Signs shall not be located in the public right-of-way or on Town-owned property, on fences, boulders, planters, trees, other signs, vehicles, utility facilities, or any structure.

[7] For the purposes of this section, a qualifying event shall be a special event taking place in the Town of Salem and occurring no more than three times per calendar year. Qualifying events shall include festivals, craft fairs, farmers' markets, and similar activities which are organized by or for the benefit of a not-for-profit organization registered with, or eligible to be registered with, the State of New Hampshire Attorney General's Office, Division of Charitable Trusts, or that is duly organized, or eligible to be organized, pursuant to RSA 292 et seq.

[8] Permits are required for these signs.

[1] Editor's Note: The Table of Permitted Signs is included as an attachment to this chapter.

E. Prohibited signs and materials. The following types of signs are expressly prohibited in all districts unless otherwise provided for in this section:

(1) Animated, moving, flashing, and intensely lighted signs and signs that emit audible sound, noise, or visible matter. This includes scrolling, flashing, or repeating messages, images or displays. Electronic reader boards and electronic changeable copy signs are prohibited, except that the Planning Board may grant a conditional use permit under § 490-702H for static electronic price-change signs for gas stations and digital screens along drive-through lanes.

[Amended by the 2020 and 2022 Town Meetings]

(2) Off-site signs; billboard signs.

(3) Parking of advertising vehicles is prohibited. No person shall park a vehicle or trailer on a public right-of-way or public property, or on private property so as to be visible from the public right-of-way, which has attached thereto or located thereon any sign or advertising device for the basic purpose of providing advertisement of products or directing people to a business or activity located on the same or nearby property or any other premises. This subsection is not intended to prohibit any form of vehicular signage, such as a sign attached to a bus or lettered on a motor vehicle.

(4) Signs located on public property or over or across any public street or right-of-way. Special permission for such signs may be granted by the Board of Selectmen where a public benefit can be ascertained.

(5) Pennants, searchlights, twirling signs, balloons or other gas-filled figures, and outdoor display of products in parking lots or landscaped areas (unless shown on an approved site plan), shall not be allowed.

[Amended by the 2011 Town Meeting]

(6) Signs which imitate, and may be confused with, an official traffic control sign or signal or an emergency or road equipment vehicle.

(7) Signs which bear or contain statements, words or pictures of an obscene, pornographic or immoral character or which contain advertising matter which is untruthful, or as otherwise prohibited by state law.

(8) Fences or any wall which is not structurally a part of a building may not be used for a sign.

(9) In accordance with RSA 236:75, it shall be unlawful to affix, attach, or display any advertisement upon any object of nature, utility pole, telephone booth, or highway sign.

(10) Signs which block the view of traffic, street signs, or traffic signals or which, due to their placement, inhibit adequate sight distance.

F. Uniformity. In order to improve a particular lot's aesthetics and commercial value, all wall and under canopy signs on the lot shall be of uniform size and shape, color, and style, with the exception of trademarks and logos.

G. Nonconforming signs.

(1) A sign shall immediately lose its legal nonconforming status when:

(a) The sign is enlarged or altered such that its effect is more intensive and/or obtrusive.

(b) The sign is relocated.

(c) The sign is abandoned for 180 days or more.

(d) The sign advertises or calls attention to any products, businesses or activities which have not been carried on or sold at the premises for the past six months.

(e) The sign shall not have been repaired or properly maintained within 30 days after written notice to the effect has been given by a building official.

(2) No sign and/or advertising structures that had been erected in violation of any previously existing sign ordinance shall, by virtue of adoption of this section, become legal nonconforming.

H. Conditional use permits.

[Added by the 2009 Town Meeting]

(1) The Planning Board may grant a conditional use permit to modify the requirements of Subsection D(2) and as noted above, in limited respects, provided that the Board finds that all of the following criteria are met:

[Amended by the 2020 Town Meeting]

(a) The modification complies with the purposes of the sign regulations noted in Subsection A.

(b) The applicant's particular situation justifies a modification to the requirements.

(c) The site is suitable for the proposed modification.

(d) There will be no adverse impact on neighboring properties.

(e) There will be no adverse impact on traffic or pedestrian safety.

(f) The aesthetic character of the site and the surrounding area will not be adversely affected.

(g) The modification will be consistent with the spirit and intent of this chapter and the Master Plan.

(2) An applicant is not entitled to a conditional use permit, and the Planning Board may, in its discretion, decline to grant it if the Board determines such permit is not justified or warranted in accordance with the above criteria.

(3) This provision is adopted as an innovative land use control pursuant to RSA 674:21, and the Planning Board is vested with sole authority to administer it and to grant the conditional use permits.

I. No discrimination against noncommercial signs or speech. The owner of any sign which is otherwise allowed under this section may substitute noncommercial copy in lieu of any other commercial or noncommercial copy. This substitution of copy may be made without any additional approval or permitting. The purpose of this provision is to prevent any inadvertent favoring of commercial speech over noncommercial speech, or favoring of any particular noncommercial message over any other noncommercial message. This provision prevails over any more specific provision to the contrary. This provision does not create a right to increase the total amount of signage on a parcel or allow the substitution of an off-site commercial message in place of an on-site commercial message.

[Added by the 2022 Town Meeting]

J. Severability clause. The invalidity of any section or provision of this chapter shall not invalidate any other section or provision thereof.

[Added by the 2022 Town Meeting]

§ 490-703 Workforce housing.

[Added by the 2010 Town Meeting]

A. Purpose. The purpose of this section is to promote and provide for the development of workforce housing in the Town of Salem as provided for in RSA 674:58 to 674:61. It is intended to ensure the continued availability of a broad spectrum of home ownership and tenancy opportunities for individuals and families with moderate income. All workforce housing proposed to be developed in the Town of Salem shall be approved and developed in accordance with the provisions of this section.

B. Authority. This section is adopted under the authority of the Workforce Housing Statute (RSA 674:58 to 674:61) and the Innovative Zoning Statute (RSA 674:21).

C. Applicability. The following provisions apply to the terms of this section:

(1) The innovative land uses allowed under this section function as permitted variations of the underlying zoning requirements, by conditional use permit administered by the Planning Board, to the general requirements of this chapter solely for the purposes stated in Subsection A above. Provisions of this section shall not be applied for any other purpose.

(2) Variances to the requirements of this section, including increased residential densities, without having received a conditional use permit under this section, shall be considered contrary to the spirit of this section.

D. Administration. This section shall be administered by the Planning Board. The Planning Board shall amend subdivision and site plan regulations as provided by RSA 675:6 to include procedures for administering the provisions of this section.

E. Restrictions. The following restrictions govern the Planning Board's implementation of this section:

(1) The number of additional/bonus housing units authorized to be constructed under provisions of this section in any calendar year shall not exceed 1% of the existing housing supply. Additional housing units are defined as residences in excess of the number which could be constructed at the density permitted for single-family detached housing in the underlying district.

(2) No single project or group of projects will have an unreasonable or disproportionate impact on the environment, traffic, schools, recreation areas, requirements for public services, or property rights. Impact shall be considered disproportionate if it is substantially greater per unit of housing than that for housing constructed under provisions of the underlying district.

(3) The design of housing to be constructed under this section shall be controlled to ensure that requirements of this subsection are maintained. Expansion of housing contrary to provisions of this subsection shall not be permitted, and variances to permit such expansion shall be contrary to the spirit of this section.

(4) Since this section grants broad authority to the Planning Board to facilitate development of workforce housing in Salem, the Planning Board is granted discretion to reject or require modification of plans which it finds would have an unanticipated or undesirable impact on the community. If a plan is rejected, the Planning Board shall state the reasons for the rejection and offer suggestions for modifications to the plan that would make it acceptable, after which the applicant may submit a revised plan for the Planning Board's consideration.

(5) Affordability for home ownership shall be based on housing costs, including mortgage principal, interest, taxes and insurance, not exceeding 30% of the household income for a family of four persons with an annual income that does not exceed 100% of the area median income as determined annually by the U.S. Department of Housing and Urban Development. Affordability for housing rental shall be based on monthly rental and utility costs not exceeding 30% of the household income for a three-person household with an annual income that does not exceed 60% of the area median income as determined annually by the U.S. Department of Housing and Urban Development.

F. Procedure.

(1) An applicant desiring to develop under the provisions of this section shall file an application with the Planning Board on forms prescribed by it in regulations adopted pursuant to Subsection D. Said application shall include a written statement of the applicant's intent to develop workforce housing and how the applicant intends to comply with the terms and conditions of this section.

(2) The Planning Board shall review an application for a workforce housing development in a manner consistent with its procedures for other subdivision and/or site plan proposals.

(3) Final approval and review of considerations. Since one of the objectives of this section is to provide long-term affordability of units approved under this section, the Planning Board will be mindful of potential added development costs that could impair the affordability of the development. If the applicant for a project reviewed under the provisions of this section believes that the affordability of the project has been impaired as a result of the conditions of project approval, the applicant may seek resolution of these issues as provided for in RSA 674:60, II and III.

(4) The Planning Board is not required to allow a workforce housing development that does not meet the Town's normal development standards, required fees, or conditions of approval related to environmental protection, water supply, sanitary disposal, traffic safety, and fire and life safety protection.

G. Design criteria. The following provisions govern the design and construction of workforce housing proposals under this section:

(1) Development in the Rural District is limited to single-family detached and single-family attached (maximum of two units per grouping) dwellings and uses incidental thereto situated on development parcels that are at least five acres in size.

(2) Development in the Residential District is limited to single-family detached and single-family attached (maximum of four units per grouping) dwellings and uses incidental thereto situated on development parcels that are at least five acres in size.

(3) Density.

(a) Density in the Residential District shall be based on either of the following standards. Density in the Rural District shall be based on the density bonus standards in the following Subsection G(3)(a)[2]:

[1] The number of bedrooms shall be no more than 50% greater than permitted on the basis of four bedrooms per single-family detached dwelling in the underlying district. In calculating permitted density, the fifty-percent increase shall be applied to the number of single-family lots which are shown on a conceptual subdivision or site plan meeting all the requirements of the underlying district. All of the units developed under this standard shall meet the affordability requirements of Subsection E(5).

[2] The number of dwelling units shall be no more than 30% greater than permitted in the underlying district. In calculating permitted density, the thirty-percent increase shall be applied to the number of single-family lots which are shown on a conceptual subdivision or site plan meeting all the requirements of the underlying district. All of the bonus units developed under this standard shall meet the affordability requirements of Subsection E(5).

(b) Units may be constructed with various numbers of bedrooms, except that all of the units shall contain at least two bedrooms. Furthermore, none of the units approved for a development under this section may be age restricted.

(c) Any fractional product of the maximum dwelling unit density calculation in Subsection G(3)(a) shall be rounded down to the nearest whole number if below 0.6, or rounded up to the nearest whole number if 0.6 or above.

(4) Workforce housing constructed in Commercial-Industrial Districts shall contain not less than 3,500 square feet of upland (nonwetland soils) lot area for each dwelling unit that shall consist exclusively of upland (nonwetland) soils. Such housing may be configured as one-family attached, townhouse, multifamily or mixed use. If a mix of multifamily housing and permitted commercial-industrial uses is proposed, calculation of the maximum residential density shall be made after deducting the building footprint area for the nonresidential uses. Such housing shall conform to the garden apartment maximum lot coverage in § 490-202, plus applicable requirements of § 490-304B, subject to exceptions as provided in this section. All of the units developed under this standard shall meet the affordability requirements of Subsection E(5).

(a) Units may be constructed with various numbers of bedrooms, except that more than 50% of the units shall contain two or more bedrooms. Furthermore, none of the units approved for a development under this section may be age restricted.

(b) The Planning Board may permit multifamily workforce housing developments that comply with the requirements of this Subsection G(4) in other zoning districts if the following additional criteria can be met to the satisfaction of the Planning Board:

[1] Total development parcel size shall be a minimum of 10 acres.

[2] The development shall have a landscaped buffer around the perimeter of the development that provides an effective year-round visual screen between the development and abutting properties.

[3] The Planning Board finds that all of the other requirements of this section are met.

[4] The development is substantially funded by state and/or federal affordable housing programs that require long-term housing affordability.

(5) Projects with a residential density greater than permitted by the district wherein they are located will be served by the municipal water and sewer systems or by private systems acceptable to the Planning Board and State of New Hampshire.

(6) The Planning Board may require extension of roads and utilities, construction of community facilities, dedication of land for public purposes, and payment for off-site improvements to the extent that they are reasonably necessitated by developments authorized under provisions of this section.

(7) Developments which differ moderately from abutting residential developments shall be visually buffered from them by distance and vegetation.

(8) The plan shall comply with the lot requirements and design criteria of the underlying district unless a conditional use permit is specifically requested and voted by the Planning Board under Subsection H.

(9) Workforce housing units shall be similar in exterior appearance to market-rate units and dispersed throughout the development.

(10) Workforce housing units must be constructed in a sequence proportional to the construction sequence of the market-rate units, and all workforce housing units must be completed and made available for sale or rental before the final 10% of the market-rate units are approved for occupancy.

H. Conditional use permits. The Planning Board may grant a conditional use permit for the development of workforce housing under this section which results in a design that modifies the requirements of the underlying district, subject to the following specific criteria:

(1) The proposed design or development is compatible with surrounding neighborhoods, and no diminution of surrounding property values will be suffered.

(2) The modifications are necessary to accomplish the purpose and intent of this section.

(3) Modification of the requirements for maximum allowable height that exceeds three stories, compliance with § 490-706, Wetlands conservation, and to permit commercial development in noncommercial districts shall not be permitted.

(4) The plan meets all of the provisions of this section.

(5) The Salem Housing Authority, the New Hampshire Housing Finance Authority or other similar organization has established agreements with the applicant, subject to review and approval by the Planning Board, to ensure that the purpose of this section will be fulfilled and will continue to be fulfilled after the project is completed, that the benefit to affordability will be commensurate with the increased value resulting from the increased density permitted by this section, and such agreements are an integral part of the proposal. Agreements shall include provisions to enforce the requirement of Subsection E(5). They may include agreements to provide a share of equity in trust of the Salem Housing Authority, New Hampshire Housing Finance Authority or other similar organization, restrictions related to the sale or rental price, resale, or occupancy of the housing, and other provisions and conditions consistent with development and allocation of a limited housing resource, provided that said restrictions benefit the development or retention of moderately priced housing in Salem.

(6) The applicant has demonstrated and the Planning Board has found that the benefit to be gained from the project in providing workforce housing outweighs any adverse impact on the community or Town as a whole and that the project is in the public interest. An applicant is not entitled to a conditional use permit, and the Planning Board may, in its discretion, decline to grant it if the Board determines such permit is not justified or warranted in accordance with the above criteria.

I. Nonseverability. If any of the requirements, conditions, or discretionary authority granted to the Salem Housing Authority, New Hampshire Housing Finance Authority, or other similar organization, or to the Planning Board, is found to be invalid or unenforceable, then the authority in this section to grant conditional use permits to permit residential densities greater than permitted in the existing Residential and Rural Districts shall be invalid.

§ 490-704 Open space preservation.

[Amended by the 1996 Town Meeting]

A. General description. This section applies to the Residential and Rural Districts.

(1) General concept. An open space preservation design (hereinafter OSPD) shall mean a residential development in which the buildings and accessory uses are located more closely together, with reduced lot sizes, into one or more groups. All land not included in the building lots or street rights-of-way shall be dedicated as permanently preserved open space. The overall housing density shall not exceed that which could be built under a conventional development plan, except as noted below, and all lots must be serviced by municipal water and sewer or by private systems acceptable to the Planning Board and State of New Hampshire.

[Amended by the 2003 Town Meeting]

(2) Permitted uses. Residential uses are limited to single-family detached dwellings and accessory uses, including residential additions, garages, sheds, fences, and pools. Open space uses are limited to noncommercial parks, conservation and recreation areas, and commercial agriculture and forestry. The following uses shall not be permitted: day-care facilities, accessory apartments and kennels.

[Amended by the 2000 Town Meeting]

(3) Authority. In order to allow OSPD under the powers granted under RSA 674:21, the Planning Board may waive the restrictions in § 490-202 (except maximum height) in the Residential or Rural Districts for new subdivisions on lots of 15 acres or more, provided that the criteria in this section are met.

[Amended by the 2021 Town Meeting]

B. Purposes. The purposes of OSPD are to:

(1) Preserve large, contiguous parcels of open space throughout the Town as described in the Salem Master Plan and Open Space Report. Preserve this undeveloped land in its existing natural state in order to protect valuable land and water resources for conservation, forestry, agriculture, aquifer recharge, watershed protection, wildlife habitat, outdoor recreation, and scenic and historic values beyond the extent provided by existing regulations.

[Amended by the 2021 Town Meeting]

(2) Encourage housing development alternatives which are harmonious with natural features through more sensitive siting of buildings and better overall site planning.

[Amended by the 2003 Town Meeting]

(3) Preserve views of open fields, woodlands, and undeveloped land as seen from existing streets and observation points.

[Added by the 2003 Town Meeting]

(4) Enable economical and efficient street, utility, and public facility installation, construction and maintenance and a more efficient provision of municipal services.

(5) Encourage a range of housing development alternatives which add recreational and aesthetic amenities to new neighborhoods.

C. Review and approval process.

(1) Evaluation and approval of an OSPD shall be by the Planning Board in accordance with the purposes, standards and guidelines set forth in this section and the Salem Subdivision Control Regulations.

(2) Preapplication meetings. Prior to the submission of any final plans, applicants are encouraged to prepare conceptual plans under both conventional and OSPD regulations, review these plans with the Planning Director, then review the plans with the Planning Board and Conservation Commission at regularly scheduled meetings. The conceptual design process for an OSPD should start with a delineation of the most valuable natural resources and open space attributes of the site. Potential house locations, lot lines, road alignments and drainage facilities should then be configured so as to accomplish the protection and preservation of these resources and attributes.

[Amended by the 2021 Town Meeting]

(3) Proposed use. The proposed use of the open space shall be specified in the application. If several uses are proposed, the plans shall specify what uses will occur in what areas. The Planning Board shall have the authority to approve or disapprove particular uses proposed for the open space.

[Added by the 2021 Town Meeting]

D. Density standards.

(1) Maximum permitted lots. The number of lots or homes must be equal to or less than the number allowed under § 490-301C in the Residential District or § 490-302C in the Rural District, except as noted below. A conventional subdivision layout, in accordance with the restrictions in § 490-301C, 490-302C and § 490-706, shall be used to determine the total number of lots or homes allowed. Any land area used in the calculation of allowed homes or lots in an approved OSPD shall not thereafter be eligible as contributing land area in any subsequent development proposal.

[Amended by the 2003 Town Meeting]

(2) Unbuildable lots. For the purposes of determining the number of lots allowable under this section, there shall be excluded from the number of lots shown on such conventional subdivision layout all lots which the Planning Board finds are not reasonably buildable, whether by reason of excessive development or site preparation costs due to remote proposed location; poorly drained soils or steep slopes; sanitary disposal, drainage or water supply requirements; limited or unusually configured buildable area; the permitting requirements of the state or other Town boards; or a combination of the above. In consideration of the foregoing, the Planning Board may consider recommendations of the Town Engineer, Conservation Commission, Planning Director, or any appropriate state agencies.

(3) Incentive provision. If the initial parcel size is 40 acres or greater, and the proposed development meets or exceeds three of the following five criteria, the Salem Planning Board may award the development a density bonus not to exceed 10% of the conventional number of lots allowed in a subdivision. Development density bonuses shall only be awarded to applicants that have reviewed conceptual plans with the Planning Board and Conservation Commission.

[Amended by the 2003 and 2021 Town Meetings]

(a) Where the proposed development designates 70% or more of the total parcel as open space protected as such in perpetuity.

(b) Public access bonus. Where the public is granted access to the open space. The nature of public access required to trigger this bonus is pedestrian traffic. The instrument granting access, acceptable to the Planning Board, may reasonably restrict the use of motorized vehicles.

(c) Agricultural lands and use bonus. Where the development protects agriculturally valuable lands and provides permission for their use as such in perpetuity. The open space portion preserved for agricultural use must amount to a minimum of 10 acres and must either have been historically farmed, or contain good soils for farming and be reasonably accessible. The instrument granting use, acceptable to the Planning Board, may reasonably restrict the type or intensity of farming to occur to prevent nuisances. This provision only requires that permission is reasonably available; the fact that agricultural uses are not pursued at any particular time does not affect the validity of the bonus.

(d) Existing roadway buffer. Where the development has more than 250 feet of frontage on existing public roadways, and at least 200 feet of undisturbed buffer is provided in perpetuity.

(e) Open fields. Where existing open fields are visible from public roadways and greater than five acres in size, and the site preserves these fields in perpetuity.

E. Open space standards.

(1) General. All land not utilized for road rights-of-way or building lots shall be dedicated as permanently preserved open space.

(2) Minimum required open space. At least 50% of the upland portion of the site must be reserved in perpetuity as common open space. Of the minimum open space required, at least 50% must consist of soils with slopes less than 25%. Open space dedicated in excess of the minimum required area may contain any percentage of wetland soils or steep slopes.

[Amended by the 2003 and 2021 Town Meetings]

(3) Protection, ownership and management. All common open space shall be permanently protected by covenants and restrictions in perpetuity, approved by the Planning Board after review by the Conservation Commission, and:

[Amended by the 2003 and 2021 Town Meetings]

(a) Shall be conveyed by the applicant to:

[1] A homeowners' association or other legal entity under New Hampshire state statutes, or similar legal arrangement, subject to review and approval by the Town Attorney; or

[2] A nonprofit organization, the principal purpose of which is the conservation of open space; or

(b) Subject to approval of the Planning Board and Board of Selectmen, may be dedicated to the Town of Salem with a trust clause ensuring that it be maintained as open space.

(4) The Board may allow open space in excess of the minimum requirements to be unrestricted by a conservation easement, provided that use of the open space is limited by deed covenant to noncommercial parks, conservation and recreation areas or commercial agriculture and forestry. The Planning Board may require further legal review of any documents submitted, the cost of which shall be borne by the applicant.

F. Dimensional standards for building lots.

(1) Zoning dimensions.

(a) Lot shape and size. House lots and building envelopes should generally be square or rectangular in shape and contain sufficient area to accommodate average-sized houses and typical amenities such as garages, pools and sheds. The minimum lot size shall be no less than 15,000 square feet if serviced by municipal sewer and 25,000 square feet if serviced by on-site septic systems.

(b) Frontage. The minimum lot frontage shall be 75 feet. Individual lot frontages may be further reduced when the Planning Board determines that the purposes and standards of this section are better met, provided that in no case shall there be less than 100 feet of lot width at the building line.

[Amended by the 2003 and 2021 Town Meetings]

(c) Setbacks (yards). For all dwelling units, the minimum front yard setback shall be 30 feet, the minimum side yard setback shall be 15 feet, and the minimum rear yard setback shall be 30 feet. Garages, sheds and pools must meet the setbacks in the underlying district.

[Amended by the 2000 and 2003 Town Meetings]

(2) The Planning Board may vary these dimensional standards in limited respects, provided that the intent and purposes of this section are met.

G. Site design guidelines. The layout and configuration of lots, homes, streets, building setbacks and open space are subject to the approval of the Planning Board. The layout must demonstrate preservation of open land in furtherance of the stated purposes of this section, without detracting from the character of the neighborhood and without seriously diminishing the value of surrounding property. Toward that end, the Planning Board shall evaluate each proposal for an OSPD using the following design guidelines, modified as appropriate to each individual development site:

(1) Development location. Residences should be grouped in locations so that scenic views and vistas will remain unblocked, particularly as seen from public roads; prime agricultural soils, wildlife habitat and shoreline areas will be protected; stone walls, historic sites and their environs will be preserved; and significant natural features, such as, but not limited to, vernal pools, prime aquifers, older-growth trees, unique geologic formations and ridgelines, will be protected. Wherever possible, structures should be located within any wooded upland on the parcel, or along the far edges of open fields and so that silhouettes of structures will be below the ridgeline or hilltop or, if the site is wooded, the building silhouettes will be lower than the existing canopy height. New dwellings and structures should be screened from view from public roads with a buffer of existing trees or new plantings.

[Added by the 2003 Town Meeting]

(2) Open space layout. Open space should include the most sensitive resource areas of the property and should be designed in larger blocks of land, preferably as part of an integrated open space network, laid out to be contiguous with open space areas of similar character (whether permanently preserved or not) on adjacent parcels. Contiguous open space should generally be more than three acres in area and should have a length-to-width ratio of no greater than four to one, except where intended to buffer linear features such as watercourses and wetlands, or designed as trail links. Fragmentation, or the creation of long, thin strips of open space, should be avoided. Where open space directly adjoins private lots, it shall be demarcated with logical, straightforward boundaries such as existing stone walls, boulders, tree lines, topographic breaks, a roadway or path, or post-and-rail fencing, small signs or monuments.

[Amended by the 2003 Town Meeting]

(3) External buffer. A minimum buffer of undisturbed vegetation of at least 50 feet in width from the outer perimeter of the parcel shall be established. This external buffer shall be maintained in a naturally vegetated state to screen and buffer the development and may account for up to 25% of the minimum required open space. This setback may be eliminated where the proposed development abuts existing permanent open space.

[Added by the 2021 Town Meeting]

(4) Pedestrian access/circulation. Open space should be laid out in conjunction with existing and proposed streets, sidewalks and lots so that the greatest degree of internal pedestrian circulation and access from the lots to both on-site and off-site open space is achieved. Access to the open space must be clear and direct and arranged in a manner that does not conflict with the actual or apparent use of private lots.

(5) Landscaping. Common areas (such as community greens, cul-de-sac islands, and along both sides of new streets) should be landscaped with deciduous shade trees and flowering shrubs. The suggested minimum caliper is two inches and street tree interval is 50 feet but may vary according to species selected and site-specific factors, at the discretion of the Planning Board.

§ 490-705 Floodplain development.

A. Adoption of flood-related maps. The Flood Insurance Rate Maps referred to in Subsection D as prepared for the Town of Salem by the Federal Emergency Management Agency are hereby adopted, and such maps shall be a part of this chapter and the Salem Building Codes.

[Amended by the 2009 Town Meeting]

B. Developments or encroachments in floodway prohibited. Any development or encroachment, including fill, is prohibited in the floodway, as shown on the Flood Insurance Rate Maps referred to in Subsection A, which would result in the increase in flood levels during the base flood discharge.

[Amended by the 2009 Town Meeting]

C. Restrictions on mobile homes in the floodway. No mobile home shall be placed in the floodway as shown on the Flood Insurance Rate Maps referred to in Subsection A, unless the area is zoned for mobile homes and there is an existing mobile home park at such location at the time of the adoption of this section.

[Amended by the 2009 Town Meeting]

D. Regulations for floodplain development. The following regulations shall apply to all lands designated as special flood hazard areas by the Federal Emergency Management Agency (FEMA) in its Flood Insurance Study for Rockingham County, New Hampshire, dated May 17, 2005, or as amended, together with the associated Flood Insurance Rate Map Panels numbered 0543, 0545, 0551, 0552, 0553, 0554, 0558, 0561, 0562, 0563, 0564, 0570, 0657, 0676, 0677, and 0681, dated May 17, 2005, or as amended, which are declared to be part of this section and are hereby incorporated by reference.

[Added by the 1989 Town Meeting; amended by the 1998, 2002 and 2005 Town Meetings]

(1) Definitions. See § 490-107.

(2) The construction or placement of new buildings and structures in any special flood hazard area is prohibited. Other proposed development such as additions to existing buildings or replacement of existing buildings in any special flood hazard areas shall require a permit. In addition to the Town building permit application form, applicants shall also complete a supplemental building permit application ("floodplain building permit application") for proposed construction in the special flood hazard area.

[Amended by the 2007 Town Meetings]

(3) The Town of Salem shall review all building permit applications for new construction or substantial improvements to determine whether proposed building sites will be reasonably safe from flooding. If a proposed building site is in a special flood hazard area, all new construction and substantial improvements shall:

(a) Be designed (or modified) and adequately anchored to prevent flotation, collapse, or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy;

(b) Be constructed with materials resistant to flood damage;

(c) Be constructed by methods and practices that minimize flood damages; and

(d) Be constructed 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.

[Amended by the 2009 Town Meeting]

(4) Where new and replacement water and sewer systems (including on-site systems) are proposed in a special flood hazard area, the applicant shall provide the Town of Salem with assurance that new and replacement sanitary sewage systems will be designed to minimize or eliminate infiltration of floodwaters into the systems and discharges from the systems into floodwaters, and on-site waste disposal systems will be located to avoid impairment to them or contamination from them during periods of flooding.

[Amended by the 2009 Town Meeting]

(5) The Town of Salem shall maintain for public inspection, and furnish upon request, any certification of floodproofing and the as-built elevation (in relation to mean sea level) of the lowest floor (including basement) of all new or substantially improved structures, and include whether or not such structures contain a basement. If the structure has been floodproofed, the as-built elevation (in relation to mean sea level) to which the structure was floodproofed. This information must be furnished by the applicant.

(6) The Town of Salem shall review proposed developments to assure that all necessary permits have been received from those governmental 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. § 1344. It shall be the responsibility of the applicant to certify these assurances to the Town of Salem.

(7) Riverine situations.

(a) Prior to the alteration or relocation of a watercourse, the applicant for such authorization shall notify the Wetlands Bureau of the New Hampshire Department of Environmental Services and submit copies of such notification to the Town of Salem, in addition to the copies required by RSA 482-A:3. Further, the applicant shall be required to submit copies of said notification to those adjacent communities as determined by the Building Inspector, including notice of all scheduled hearings before the Wetlands Bureau.

(b) Within the altered or relocated portion of any watercourse, the applicant shall submit to the Town of Salem certification provided by a registered professional engineer assuring that the flood-carrying capacity of the watercourse has been maintained.

(c) Along watercourses that have a designated regulatory floodway, no encroachments, including fill, new construction, substantial improvements, and other development, are allowed within the designated regulatory floodway unless it has been demonstrated through hydrologic and hydraulic analyses performed in accordance with standard engineering practices that the proposed encroachment would not result in any increase in flood levels within the community during the base flood discharge.

(d) In Zone A the Town of Salem shall obtain, review, and reasonably utilize any floodway data available from a federal, state, or other source as criteria for requiring that development meet the following floodway requirement: "No encroachments, including fill, new construction, substantial improvements, and other development, are allowed within the designated regulatory floodway that would result in any increase in flood levels within the community during the base flood discharge."

[Amended by the 2009 Town Meeting]

(e) Along watercourses that have not had a regulatory floodway designated, no new construction, substantial improvements or other development (including fill) shall be permitted within Zone AE on the FIRM, unless it is demonstrated that the cumulative effect of the proposed development, when combined with all other existing and anticipated development, will not increase the water surface elevation of the base flood more than one foot at any point within the community.

[Amended by the 2009 Town Meeting]

(8) Special flood hazard areas.

(a) In special flood hazard areas the Town of Salem shall determine the 100-year flood elevation in the following order of precedence according to the data available:

[1] In Zone AE, refer to the elevation provided in the community's Flood Insurance Study and accompanying FIRM.

[2] In Zone A, the Town of Salem shall obtain, review, and reasonably utilize any 100-year flood elevation data available from federal, state, development proposals submitted to the community (example: subdivision, site approvals, etc.) or other source. Where a 100-year elevation is not available or not known, the 100-year elevation shall be determined to be at least two feet above the highest adjacent grade.

[Amended by the 2009 and 2022 Town Meetings]

(b) The Town of Salem's one-hundred-year flood elevation determination will be used as criteria for requiring in Zones A and AE that:

[Amended by the 1994, 2002 and 2009 Town Meetings]

[1] Residential construction. New construction or substantial improvement of any residential building (or manufactured home) shall have the lowest floor, including basement, elevated no lower than one foot above the base flood elevation.

[2] Nonresidential construction. New construction or substantial improvement of any commercial, industrial or nonresidential building (or manufactured building) shall:

[a] Have the lowest floor, including basement, mechanical and utility equipment, elevated no lower than one foot above the level of the base flood elevation; or

[b] Be floodproofed to a level no lower than one foot above the level of the base flood elevation, provided that all areas of the building (including basement, mechanical and utility equipment) below the required elevation are watertight with walls substantially impermeable to the passage of water, and use structural components having the capability 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 meeting the provisions of this section.

[3] Recreational vehicles placed on sites within Zones A 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] Meet all standards of the National Flood Insurance Program Regulations Section 60.3(B)(1) and the elevation and anchoring requirements for manufactured homes in Paragraph (c)(6) of Section 60.3.

[4] 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 above the base flood level and be securely anchored to resist flotation, 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.

[5] For all new construction and substantial improvements, fully enclosed areas below the lowest floor that are subject to flooding are permitted, provided that the enclosed areas meet the following requirements:

[a] The enclosed area is unfinished or flood-resistant, usable solely for parking of vehicles, building access or storage;

[b] The area is not a basement;

[c] The area shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwaters. Designs for meeting this requirement must either be certified by a registered professional engineer or architect or must meet or exceed the following minimum criteria:

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

[ii] The bottom of all openings shall be no higher than one foot above grade.

[iii] Openings may be equipped with screens, louvers, or other coverings or devices, provided that they permit the automatic entry and exit of floodwaters.

[6] A licensed professional engineer or architect shall develop or review the structural design, specifications and plans for the foundation of the building and shall certify that the design and methods of construction are in accordance with accepted practices to withstand flotation, collapse, lateral movement, erosion and scour, undermining and the effects of water and wind action simultaneously on all building components during the base flood.

(9) Any encroachment, including fill, new construction, substantial improvement, or other development, within a special flood hazard area shall provide compensatory floodplain storage equal to twice the amount of encroachment. All parking areas located within a special flood hazard area shall be tiered, sloped, or otherwise designed to flood during a base flood event. A licensed professional engineer shall prepare the floodplain storage site plan and/or certify that the proposed compensatory floodplain storage is properly designed and that the floodplain storage capacity is of adequate volume to accommodate the water displaced by the proposed development. After construction of the approved compensatory site, an as-built plan shall be certified by a professional engineer and submitted to the Town for inclusion in the project file.

[Added by the 1991 Town Meeting; amended by the 2002 and 2007 Town Meetings]

(10) Variances and appeals.

(a) Any order, requirement, decision or determination of the Building Inspector made under this section may be appealed to the Zoning Board of Adjustment as set forth in RSA 676:5.

(b) If the applicant, upon appeal, requests a variance as authorized by RSA 674:33, I(b), the applicant shall have the burden of showing, in addition to the usual variance standards under state law:

[1] That the variance will not result in increased flood heights, additional threats to public safety, or extraordinary public expense;

[2] That if the requested variance is for activity within a designated regulatory floodway, no increase in flood levels during the base flood discharge will result; and

[3] That the variance is the minimum necessary, considering the flood hazard, to afford relief.

(c) The Zoning Board of Adjustment shall notify the applicant in writing that:

[1] The issuance of a variance to construct below the base flood level will result in increased premium rates for flood insurance up to amounts as high as $25 for $100 of insurance coverage; and

[2] Such construction below the base flood level increases risks to life and property. Such notification shall be maintained with a record of all variance actions.

(d) The community shall:

[1] Maintain a record of all variance actions, including the justification for their issuance; and

[2] Report such variances issued in its annual or biennial report submitted to FEMA's Federal Insurance Administrator.

[Amended by the 1998 Town Meeting]

(11) Certificate of occupancy. No certificate of occupancy may be issued for a building or structure that is within the purview of the regulations contained in this Subsection D until the Building Inspector certifies that all site and building improvements as contained in the building permit application, plans and associated documents have been completed; provided, however, that an applicant may request that the Town accept a suitable and sufficient performance bond or letter of credit, in a form suitable to Town Counsel, to assure the completion of certain site or building improvements that, due to factors beyond the control of the applicant, have not been completed.

[Added by the 2002 Town Meeting]

E. Floodplain Administrator duties and responsibilities.

[Added by the 2022 Town Meeting]

(1) The Chief Building Official or his/her designee is hereby appointed to administer and implement these regulations and is referred to herein as the "Floodplain Administrator."

(2) The duties and responsibilities of the Floodplain Administrator shall include, but are not limited to:

(a) Ensure that permits are obtained for proposed development in a special flood hazard area.

(b) Review all permit applications for completeness and accuracy, and coordinate with applicant for corrections or further documentation, as needed.

(c) Interpret the special flood hazard area and floodway boundaries and determine whether a proposed development is located in a special flood hazard area, and if so, whether it is also located in a floodway.

(d) Provide available flood zone and base flood elevation information pertinent to the proposed development.

(e) Make the determination as to whether a structure will be substantially improved or has incurred substantial damage as defined in this subsection and enforce the provisions of this subsection for any structure determined to be substantially improved or substantially damaged.

(f) Issue or deny a permit based on review of the permit application and any required accompanying documentation.

(g) Ensure prior to any alteration or relocation of a watercourse that the required submittal and notification requirements in this subsection are met.

(h) Review all required as-built documentation and other documentation submitted by the applicant for completeness and accuracy, and verify that all permit conditions have been completed in compliance with this subsection.

(i) Notify the applicant in writing of either compliance or noncompliance with the provisions of this subsection.

(j) Ensure the administrative and enforcement procedures detailed in RSA 676 are followed for any violations of this subsection.

(k) Submit to FEMA, or require applicants to submit to FEMA, data and information necessary to maintain FIRMs, including hydrologic and hydraulic engineering analyses prepared by or for the Town, within six months after such data and information becomes available if the analyses indicate changes in base flood elevations, special flood hazard area and/or floodway boundaries.

(l) Maintain and permanently keep and make available for public inspection all records that are necessary for the administration of these regulations, including: local permit documents, flood zone and base flood elevation determinations, substantial improvement and damage determinations, variance and enforcement documentation, and as-built elevation and dry floodproofing data for structures subject to this subsection.

(m) Delegate duties and responsibilities set forth in these regulations to qualified technical personnel, inspectors, or other community officials as needed.

F. Substantial improvement and damage determinations.

[Added by the 2022 Town Meeting]

(1) For all development in a special flood hazard area that proposes to improve an existing structure, including alterations, movement, enlargement, replacement, repair, additions, rehabilitations, renovations, repairs of damage from any origin (such as, but not limited to flood, fire, wind or snow) and any other improvement of or work on such structure including within its existing footprint, the Floodplain Administrator, in coordination with any other applicable community official(s), shall be responsible for the following:

(a) Review description of proposed work submitted by the applicant.

(b) Use the community's current assessed value of the structure (excluding the land) to determine the market value of the structure prior to the start of the initial repair or improvement, or in the case of damage, the market value prior to the damage occurring. If the applicant disagrees with the use of the community's assessed value of the structure, the applicant is responsible for engaging a licensed property appraiser to submit a comparable property appraisal for the total market value of only the structure.

(c) Review cost estimates of the proposed work, including donated or discounted materials and owner and volunteer labor submitted by the applicant. Determine if the costs are reasonable for the proposed work, or use other acceptable methods, such as those prepared by licensed contractors or professional construction cost estimators and from building valuation tables, to estimate the costs.

(d) Determine if the proposed work constitutes substantial improvement or repair of substantial damage as defined in this subsection.

(e) Notify the applicant in writing of the result of the substantial improvement or damage determination. If the determination is that the work constitutes substantial improvement or substantial damage, the written documentation shall state that full compliance with the provisions of this subsection is required.

(f) Repair, alteration, additions, rehabilitation, or other improvements of historic structures shall not be subject to the elevation and dry floodproofing requirements of this subsection if the proposed work will not affect the structure's designation as an historic structure. The documentation of a structure's continued eligibility and designation as an historic structure shall be required by the Floodplain Administrator in approving this exemption.

§ 490-706 Wetlands conservation.

[Added by the 1987 Town Meeting; amended by the 1989, 1996, 1997, 2006, 2007, 2012 and 2013 Town Meetings]

A. Purpose and intent. The purpose of this section 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 wetlands. This section is adopted pursuant to the authority granted by New Hampshire RSA 674:16 and 674:17 and RSA 674:20 and 674:21. It is intended that this section shall:

(1) Protect residents against the dangers of increased flooding by preventing the destruction of, or significant changes to, natural wetlands that provide flood protection.

(2) Protect potential water supplies and existing aquifers and aquifer recharge areas.

(3) Prevent the pollution of surface water and groundwater.

(4) Prevent the destruction of, or significant changes to, natural wetlands which provide filtration of water flowing into water bodies or are connected to the ground- or surface water supply.

(5) Prevent unnecessary or excessive expense to the Town in providing or maintaining essential services and utilities which might be required as a result of misuse or abuse of wetlands and adjacent upland areas.

(6) Lessen damage to structures and properties caused by inappropriate development adjacent to or in wetlands.

(7) Protect wildlife habitats, maintain ecological balances, and enhance ecological values.

(8) Maintain the integrity of wetlands by protecting adjacent vegetated upland areas.

(9) Protect unique and unusual natural areas, including rare or endangered species of flora and fauna.

(10) Promote conservation corridors along all major rivers, streams, and drainage waterways.

(11) Encourage those low-intensity uses that can be harmoniously, appropriately, and safely located in or adjacent to wetlands.

B. Definitions. See § 490-107.

C. Wetland delineation and limits.

(1) This section applies to wetlands as defined in § 490-107 and RSA 482-A:2, X. Wetlands include, but are not limited to, swamps, marshes, bogs, vernal pools, and other similar areas. Wetlands shall be identified and mapped by a certified wetland scientist.

(a) Wetlands shall be delineated on the basis of hydrophytic vegetation, hydric soils, and wetlands hydrology in accordance with the techniques outlined in the Corps of Engineers Wetlands Delineation Manual, the Regional Supplement to the Corps of Engineers Wetland Delineation Manual: North Central and Northeast Region (current version), and the Field Indicators for Identifying Hydric Soils in New England (current version), published by New England Interstate Water Pollution Control Commission.

(b) Prime wetlands shall be delineated using the current NH Method in accordance with the New Hampshire Department of Environmental Services (NHDES) Wetland Delineation Standards: The Method for Inventorying and Evaluating Freshwater Wetlands in New Hampshire. Town of Salem mapped prime wetlands can be reviewed at the Salem Planning Office.

(c) Vernal pools shall be delineated in accordance with the New Hampshire Fish and Game Department's Identification and Documentation of Vernal Pools in New Hampshire (current version).

(2) Limits of wetlands covered under this section are:

(a) Wetland areas 1/2 acre or more in size;

(b) Wetland areas of any size if contiguous to or containing surface waters (such as lakes, ponds, and streams) or very poorly drained soils as defined by the Corps of Engineers Wetland Delineation Manual and any current regional supplemental manuals; and

(c) Vernal pools over 500 square feet in size.

(3) The following types of wetland areas are not subject to jurisdiction of this section:

(a) A constructed vegetated swale, roadside ditch, or driveway ditch.

(b) A sedimentation, detention, or retention basin.

(c) An excavated agricultural, irrigation, or fire pond.

D. Wetlands incorrectly delineated. In the event that an area has been incorrectly delineated as a wetland, or that an area not so designated was subsequently found to meet the criteria for a wetlands designation, the Planning Board shall determine whether the regulations contained herein have application.

(1) When it is believed that an area has been incorrectly delineated a wetland, the applicant may present to the Planning Board the findings of an independent certified wetland scientist approved by the Planning Board or its agent. The Planning Board shall make its judgment based upon the determination of the independent certified wetland scientist. The applicant shall bear the costs of the certified wetland scientist. Prime wetland redelineation will be done using the method in Subsection C(1)(b), not the method originally used to map the wetland.

(2) Where an area is not delineated as a wetland and the Planning Board or its agent reasonably believes it to be a wetland, the Planning Board may require the applicant to supply the findings of an independent certified wetland scientist as defined in RSA 310-A:76, II-a, as approved by the Board or its agent. The Planning Board shall make its judgment based upon the determination of the independent certified wetland scientist. The applicant is responsible for bearing the costs of the certified wetland scientist.

E. Buffers and setbacks.

(1) An undisturbed natural buffer area of at least 20 feet in width shall be maintained around the entire edge of any wetland defined in § 490-107. Access through the buffer zone shall be granted to allow activities in furtherance of those wetland uses permitted under Subsection G. Fallen, dead, diseased, unsafe or New Hampshire identified invasive trees and vegetation may be removed.

(2) An undisturbed natural buffer area of at least 100 feet in width shall be maintained between any designated prime wetland, as defined in RSA 482-A:15 and adopted by Town Meeting, and any new development, including but not limited to structures, dwellings, septic systems, and roads.

(3) No building or surface structure shall be constructed within 40 feet of a wetland area.

(4) All paved surfaces shall be set back 40 feet from any wetland. Paved surfaces shall include but not be limited to parking lots, fire lanes, and roads.

(5) The minimum setback between septic systems and wetlands shall meet New Hampshire Department of Environmental Services requirements.

[Amended by the 2016 Town Meeting]

F. Restrictions

(1) Where water and other effluents leave a man-made drainage system, adequate measures, including but not limited to buffer zones and natural treatment swales (such as rain gardens), shall be provided to protect the wetland from pollution, erosion, or siltation. Treatment systems shall be designed according to NHDES and federal regulations.

(2) Adequate erosion control, including but not limited to hay bales, silt fences, and riprap, shall be maintained before, during, and after construction to protect undisturbed wetland areas from intrusion and siltation. After site stabilization, temporary erosion controls shall be removed.

(3) Total wetland area used to satisfy minimum lot size requirements shall not exceed 25% of lot size with the following provisions:

(a) Areas designated as poorly drained may be used to satisfy up to 25% of the minimum lot size required by the underlying zoning district.

(b) Areas designated as very poorly drained or freshwater marsh may not be used to fulfill any portion of the minimum lot size required by the underlying zoning district.

G. Permitted and prohibited uses.

(1) Prohibited uses within wetlands are those that require the erection or construction of any structure or building, will alter the natural surface configuration by the addition of fill or by dredging, and that otherwise are not permitted by this chapter.

(2) Permitted uses within wetlands include the following or similar uses:

(a) Forestry according to recognized tree harvest practices and tree farming;

(b) Cultivation and harvesting of crops according to recognized soil conservation practices;

(c) Wildlife refuge;

(d) Parks and recreation uses that are primary uses of the property and that are consistent with the purpose and intent of this section; and

(e) Conservation areas and nature trails.

H. Exemptions.

(1) RSA 674:39 applies.

(2) Notwithstanding other provisions of this section, the construction of additions and extensions to one- and two-family dwellings shall be permitted within the areas controlled by this section, provided that:

(a) The dwelling lawfully existed prior to the effective date of this section;

(b) The proposed construction conforms to all other applicable ordinances and regulations of the Town of Salem; and

(c) The dwelling continues in its present use.

(3) Wetland buffer. Exempt from this requirement are the construction of additions and extensions to buildings which existed prior to the effective date of this section (March 1987) or the development or redevelopment of a lot where the buffer does not already exist as of the effective date of this section.

(4) Prime wetland buffer. Exempt from this requirement are those uses permitted under Subsection G(2), those lots separated from a prime wetland by an existing public road, and the construction of additions and extensions to buildings which existed prior to the effective date of this section. Nothing herein is intended to prohibit the development or redevelopment of any portion of a lot which has already been improved, or developed and regularly maintained, as of the effective date of this section.

(5) Setback. For all wetlands, residential driveways are exempt from this regulation. Also exempt is access to a property, not including parking spaces, and road crossings approved under the Subsection I(1) conditional use permit criteria.

I. Conditional use permit.

(1) The Planning Board may grant a conditional use permit to modify the requirements of Subsections E, F and G, in limited respects, provided the Board finds that all of the following criteria are met:

(a) The modification complies with the purposes and intent of this section noted in Subsection A.

(b) There is no feasible alternative to the modification with less impact to the wetland or buffer.

(c) The detrimental impact to wetlands and buffers is minimized.

(d) There will be no adverse impact on neighboring properties.

(e) The applicant provides the Planning Board and Conservation Commission findings of a certified wetland scientist approved by the Planning Board or its agent at the applicant's expense.

(f) The applicant provides the Planning Board and Conservation Commission with a wetland mitigation plan which meets the following: a minimum gain of two square feet of on-site wetland replication for each square foot of wetland lost, except for prime wetlands where a gain of five square feet of on-site wetland replication shall be provided for each square foot of wetland lost. In the case of streets, roads, accessways, and utility crossings, such mitigation shall only be required if 3,000 square feet or more of wetland is impacted. The wetland replication plan must be prepared by a certified wetland scientist and detail the construction methodology, planting plan and monitoring protocol. For impacts to wetland setbacks and buffers, mitigation measures shall be incorporated to minimize wetland degradation such as, but not limited to, buffer plantings, removal of existing pavement, and increased buffers elsewhere on the site.

(g) A recommendation from the Conservation Commission is submitted.

[Amended by the 2017 Town Meeting]

(h) The applicant has received all necessary state and federal permits prior to the issuance of the conditional use permit.

(2) An applicant is not entitled to a conditional use permit, and the Planning Board may, in its discretion, decline to grant it if the Board determines such a permit is not justified or warranted in accordance with the above criteria. Economic considerations alone are not sufficient reason for granting a conditional use permit.

(3) This provision is adopted as an innovative land use control pursuant to RSA 674:21 and the Planning Board is vested with sole authority to administer it and to grant the conditional use permits.

J. Special provisions.

(1) The Town of Salem, as a governmental body, shall not be exempt from this section nor the rules and regulations found therein.

(2) Any property containing wetlands on which a conservation easement has been obtained shall be maintained in perpetuity as open space. Activities conducted thereon shall be limited to those specifically allowed for in Subsection G. Conservation easement boundaries shall be marked by the easement grantor with granite monuments or by other durable means approved by the Planning Board.

(3) Granting variances to this section shall be considered contrary to its spirit and intent.

§ 490-707 Personal wireless service.

[Added by the 1998 Town Meeting; amended by the 2005 Town Meeting]

A. Purpose and intent. This section is enacted to permit the siting of personal wireless service facilities (hereinafter PWSF) in the Town of Salem consistent with the power granted to municipalities under federal and New Hampshire law. [47 U.S.C. § 332(c)(7); RSA 12-K:1 et seq. and RSA 674:16 et seq.] The Town of Salem, in siting wireless facilities, shall act consistent with the following:

(1) Avoid and mitigate adverse impacts such facilities may create, including but not limited to the following impacts: visual, environmental, historical, flight corridors, health, safety and prosperity.

(2) Promote co-location for facilities when such co-location minimizes the adverse impacts described in Subsection A above through an assessment of technology, current location options, future available locations, innovative siting techniques, and siting possibilities beyond the political jurisdiction of the Town.

(3) Permit the siting of facilities on new ground-mounted structures only where all other reasonable siting opportunities have been exhausted and encourage the siting of facilities, whether on new structures or existing, in a way that minimizes the adverse impacts of the facilities.

(4) Create a hierarchy of preferred locations to further the Town's planning goals by legislatively declaring siting preferences favoring siting first on Town-owned sites located in industrially or commercially zoned sites and public rights-of-way and Town-controlled structures throughout the Town, by building permit only; second, on industrially zoned sites; third, commercially zoned sites; and rural or residentially zoned sites last, as well as preferring lower or stealth towers where possible, including sensitivity to historic locations and environmentally sensitive areas, and aesthetic and planning concerns.

(5) Require that facilities be constructed and maintained safely.

(6) 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.

B. Definitions. See § 490-107.

C. Siting standards.

(1) General.

(a) Siting priority. An applicant seeking approval for a PWSF shall comply with the following:

[1] Preference will be given to the siting of PWSF on existing PWSF, including preexisting towers and antennas, where such co-location can exist while preserving the character and integrity of the existing structure and without other adverse impacts.

[2] To the extent that there are no existing PWSF which meet the requirements of the applicant, preference will be given to locating facilities on Town-owned land in industrial or commercial districts or within the public rights-of-way throughout the Town or on Town-owned or -controlled structures throughout the Town.

[3] To the extent existing facilities or Town-owned property or structures under Subsection C(1)(a)[1] and [2] above are not available, preference will be given to locating facilities on existing structures of other kinds, such as a water tower or church steeple, where such co-location preserves the character and integrity of the existing structure and does not create other adverse impacts.

[4] To the extent that siting locations under Subsection C(1)(a)[1], [2] and [3] above are not available, preference will be given to siting a facility within the Industrial District.

[5] To the extent that siting locations under Subsection C(1)(a)[1], [2], [3] and [4] above are not available, preference will be given to siting a facility within the Commercial District.

[6] To the extent that siting locations under C(1)(a)[1], [2], [3], [4] and [5] above are not available, then the siting of the PWSF shall be governed by a conditional use permit under this section (Subsection E).

(b) Burden of proof on applicant regarding siting priority.

[1] The burden of proof that there are no existing structures upon which an applicant may locate its PWSF and/or transmit or receive radio signals shall include, at a minimum:

[a] The applicant shall submit a list of all owner contacts, including the Town, made with regard to the availability of a site for a potential PWSF. If the Planning Board or Town staff find additional existing buildings and structures that may be satisfactory, the applicant shall contact the property owners.

[b] The applicant 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 U.S. Post Office shall be provided for each owner of existing structures that was contacted.

[c] If an applicant claims that a structure is not structurally capable of supporting a PWSF, this claim must be certified by a registered professional engineer licensed in the State of New Hampshire. The certification shall, at a minimum, explain the structural issues and demonstrate that the structure cannot be modified to support the PWSF at a reasonable cost.

[2] The burden of proof that no locations in areas of the Town identified herein as preferred siting locations to the location proposed by the applicant are suitable for the applicant's needs shall include, at a minimum, maps certified by a radio frequency engineer licensed in the State of New Hampshire showing:

[a] Coverage gaps of existing PWSF in or near Salem; and

[b] Coverage of PWSF if built on the available preferred siting locations.

(2) Use regulations. A PWSF shall require a building permit in all cases and may be permitted as follows:

(a) Existing personal wireless service structures. A PWSF may locate, subject to the issuance of a building permit that includes review of the application required by this section by the Planning Director, on any existing personal wireless service structure, including any guyed tower, lattice tower, mast tower, stealth tower or monopole tower in existence prior to the adoption of this section, so long as co-location complies with any approved site plan. All the requirements stated in this section at Subsection D shall be met. 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.

(b) Town-owned or -controlled land and structures. A PWSF may locate, subject to the issuance of a building permit that includes review of the application required by this section by the Planning Director, on any Town-owned land in any Industrial or Commercial District, so long as the facility complies with the requirements stated in this section at Subsection D, the facility does not exceed the height limitations in this section, and the PWSF includes a security barrier. In addition, antennas may be located on existing telecommunications poles or replacement poles located on Town-owned land or in the public right-of-way throughout the Town, subject to applicable federal and state law. In addition, antennas may be located on existing Town-owned or -controlled structures located throughout the Town, including but not limited to municipal communications facilities, athletic field lights, traffic lights, streetlights and/or other types of utility poles. All other sitings shall require site plan review and approval by the Planning Board.

(c) Existing structures. A PWSF may locate, subject to the provisions of this section and site plan review, on an existing structure other than on an existing personal wireless service or tower structure.

(d) Industrial or Commercial District. A PWSF may locate within the Industrial or Commercial District, subject to the provisions of this section and subject to site plan review.

(e) Conditional use permit. A PWSF may locate in any other area of the Town, subject to a conditional use permit granted by the Planning Board and subject to site plan review by the Planning Board. The elements of the conditional use permit are described at Subsection E below.

D. General application requirements.

(1) General. Unless otherwise provided, all applicants under this section shall apply to the Planning Board for site plan review and comply with the requirements as provided herein in this subsection, and as provided for in the Site Plan Review Regulations. Applicants for conditional use permits under this section shall also be required to submit the information provided for in this subsection. All applications for a PWSF shall contain the following:

(a) Appropriate application form signed by the applicant, accompanied by the appropriate fee.

(b) Copy of lease, deed or letter of authorization from property owner (if other than applicant) evidencing applicant's authority to pursue the application.

(c) Copy of the applicant's FCC license(s), establishing credibility to deploy a PWSF in the area being applied for, or a copy of a contract between an FCC licensed carrier and the applicant, along with a copy of that carrier's license.

(d) Detailed maps showing all the applicant's current externally visible tower and monopole PWSF locations in New Hampshire within a twenty-mile radius of the proposed externally visible PWSF, both active and inactive.

(e) Site descriptions for each of those locations, including antenna height and diameter and a depiction of all externally visible structures.

(f) A description of why less visually intrusive alternatives for the facility which the applicant seeks approval for were not proposed.

(g) Drawings detailing proposed improvements related to all the requirements specified in Subsection D(2) below.

(h) Fees to cover the Town's costs for any regional notification required by RSA 12-K:7.

(i) Written proof that the proposed use/facility complies with the FCC regulations on radio frequency (RF) exposure guidelines.

(j) Written proof that an evaluation has taken place, as well as the results of such evaluation, satisfying the requirements of the National Environmental Policy Act (NEPA) further referenced in applicable FCC rules. If an environmental assessment (EA) or an environmental impact statement (EIS) is required under the FCC rules and NEPA, submission of the EA or EIS to the Board prior to the beginning of the federal thirty-day comment period, and the Town process, shall become part of the application requirements.

(2) General PWSF requirements. The requirements and limitations in this section shall preempt all other requirements and limitations as required by this chapter and shall apply only to PWSF.

(a) Height.

[1] Existing structures. New PWSF located on any of the following existing structures shall be exempt from the height restrictions of this chapter, provided that there is no more than a twenty-foot increase in the height of the existing structure as a result of the installation of a PWSF: water towers, electric transmission and distribution towers, utility poles, and similar existing utility structures, guyed towers, lattice towers, monopoles, flagpoles, steeples or chimneys; and

[2] Height for ground-mounted facilities. Ground-mounted PWSF located in the Industrial District shall not exceed 150 feet in height. Ground-mounted PWSF located in the Commercial District shall not exceed 120 feet in height. In addition, ground-mounted PWSF located throughout the Town may project 20 feet above the average surrounding tree canopy height.

(b) Setbacks. All PWSF and equipment shelters shall comply with building setback provisions of the zoning district in which the facility is located, except that no PWSF and equipment shelter shall be located within 200 feet of any existing residence.

(c) Fall zone. In order to ensure public safety, the minimum distance from the ground mount of a PWSF 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 zone." The Planning Board may reduce the fall zone upon a showing that the technical quality and nature of the facility do not require as large a fall zone as is otherwise required by this section. In the event that an existing structure is proposed as a mount for a PWSF, a fall zone shall not be required, but the setback provisions of the zoning district shall apply. In the case of preexisting nonconforming structures, PWSF and equipment shelters shall not increase any nonconformities except as provided herein.

(d) Performance standards.

[1] Visual impact and lighting. Visual impacts are measured on the basis of change in community scale, as exhibited in relative height, mass or proportion of the PWSF within its proposed surroundings; new visible elements proposed on a contrasting background; different colors and textures proposed against a contrasting background; and use of materials that are foreign to the existing built environment.

[a] Enhancements. Preservation of the existing developed and natural environments within Salem is an enhancement to the Town. Enhancements are measured on the basis of conservation of opportunities to maintain community scale; amount and type of landscaping and/or natural vegetation; preservation of view corridors, vistas and viewsheds; and continuation of existing colors, textures and materials.

[b] Visibility focuses on eliminating or mitigating the visual impact and maximizing enhancement of the existing environment.

[c] Location. The requirements in this subsection shall govern the location of all facilities and the installation of all antennas. The requirements are as follows:

[i] Towers shall 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;

[ii] Towers or ground mounts shall either maintain a galvanized steel finish, subject to any applicable standards of the FAA, or be painted a neutral color, so as to reduce visual obtrusiveness;

[iii] The design 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 natural setting and built environment. These buildings and facilities shall also be subject to all other site plan review regulation requirements;

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

[v] Facilities shall not be artificially lighted, unless required by the FAA or other applicable authority. If lighting is required, the Planning Board may review the available lighting alternatives and approve the design that would cause the least disturbance to the surrounding views; and

[vi] Facilities shall not contain any permanent or temporary signs, writing, symbols, or any graphic representation of any kind.

[2] Federal requirements. 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, then the owners of the facilities governed by this section shall bring such facilities into compliance with such revised standards and regulations within six months of the effective date of such standards and regulations, unless a more stringent compliance schedule is mandated by the controlling federal agency. Failure to bring facilities into compliance with such revised standards and regulations shall constitute grounds for the removal, in accordance with Subsection G(2), of the facilities at the owner's expense through the execution of the posted security required by Subsection G(1).

[3] Building codes; safety standards. To ensure the structural integrity of facilities and antennas, the owner of a facility shall certify that it is constructed and maintained in compliance with standards contained in applicable local building codes and the applicable standards for PWSF that 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 report of a structural engineer licensed in New Hampshire and thereafter shall provide certifying reports to the Town every five years. All facilities shall be designed and operated in a manner that minimizes the risk of igniting a fire or intensifying one that otherwise occurs. If, upon inspection, the Town concludes that a facility fails to comply with such codes and standards and constitutes a danger to persons or property, then upon notice being provided to the owner of the facility, the owner shall have 30 days to bring such facility into compliance with such standards. If the owner fails to bring such facility into compliance within 30 days, such action shall constitute grounds for the removal, in accordance with Subsection G(2), of the facility at the owner's expense through execution of the posted security required by Subsection G(1).

[4] Additional requirements. These requirements shall supersede any and all other applicable standards found elsewhere in Salem ordinances or regulations that are less strict:

[a] Landscaping.

[i] Towers or ground-mounted facilities shall be landscaped with a buffer of plant materials that effectively screens the view of the equipment shelter from adjacent residential property and public roads. The standard buffer shall consist of a landscaped strip at least 10 feet wide outside the perimeter of the tower compound. Natural vegetation is preferred;

[ii] In locations where the visual impact of the tower would be minimal, the landscaping requirement may be reduced or waived entirely; and

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

E. Conditional use permits.

(1) General. All applicants under this section for conditional use permits shall be required to apply to the Planning Board for site plan review, to comply with the requirements provided herein in Subsection D, to comply with the Site Plan Review Regulations, and to submit the information required below in Subsection E(2).

(2) Issuance of conditional use permits. In granting the conditional use permit, the Planning Board may impose conditions to the extent the Board concludes such conditions are necessary to minimize any adverse effect of the proposed siting on adjoining properties and to preserve the intent of this section.

(a) Procedure on application. The Planning Board shall act upon the application in accordance with the procedural requirements of the Site Plan Review Regulations and RSA 676:4.

(b) Decisions. Possible decisions rendered by the Planning Board include approval, approval with conditions, or denial. All decisions shall be rendered in writing, and a denial shall be in writing and based upon substantial evidence contained in the written record.

(c) Elements of conditional permit. The applicant has the burden of addressing the following:

[1] The height of the proposed tower or other structure is necessary to provide personal wireless services;

[2] The effect of the proximity of the facility to residential development or districts;

[3] Nature of uses on adjacent and nearby properties;

[4] Surrounding topography;

[5] Surrounding tree coverage and foliage;

[6] Design of the facility, with particular reference to design characteristics that have the effect of reducing or eliminating visual obtrusiveness;

[7] Proposed ingress and egress to the site;

[8] Availability of suitable existing sites and other structures as required herein in Subsection C(1)(b);

[9] Visual impacts on viewsheds, ridgelines, and other impacts by means of cell site location, tree and foliage clearing and placement of incidental structures; and

[10] Availability of alternative siting locations as required herein in Subsection C(1)(b).

(3) Information required. Each applicant requesting a conditional use permit under this section shall submit a scaled plan in accordance with the Site Plan Review Regulations and further information, including a scaled elevation view, topography, radio frequency coverage, facility height requirements, setbacks, drives, parking, fencing, landscaping, adjacent uses (up to 200 feet away), and any other information deemed necessary by the Planning Board to assess compliance with this section. Furthermore, the applicant shall submit the following prior to any approval by the Board:

(a) Written proof that the proposed use/facility complies with the FCC regulations on radio frequency (RF) exposure guidelines;

(b) Written proof that an evaluation has taken place, as well as the results of such evaluation, satisfying the requirements of the National Environmental Policy Act (NEPA) further referenced in applicable FCC rules. If an environmental assessment (EA) or an environmental impact statement (EIS) is required under the FCC rules and NEPA, submission of the EA or EIS to the Board prior to the beginning of the federal thirty-day comment period, and the Town process, shall become part of the application requirements;

(c) An inventory of its preexisting facilities that are within the jurisdiction of the Town and those within two miles of the border thereof, including specific information about the location, height, and 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 section or other organizations seeking to locate antennas within the jurisdiction of the governing authority; provided, however, that the Planning Board is not, by sharing such information, in any way representing or warranting that such sites are available or suitable.

(d) If the applicant is proposing to build a new tower or other ground-mounted structure, the applicant shall submit written evidence demonstrating that no existing structure can accommodate the applicant's proposed facility. This evidence can consist of:

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

[2] Substantial evidence that existing structures, including towers, are not of sufficient height to meet the applicant's engineering requirements, and why;

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

[4] Substantial evidence that applicant's proposed antenna would cause electromagnetic interference with the antenna on the existing towers or structures, or the antenna on the existing towers or structures would cause interference with the applicant's proposed antenna;

[5] Substantial evidence that the fees, costs, or contractual provisions required by the owner in order to share the existing tower or structure are unreasonable. Costs exceeding new tower development are presumed to be unreasonable; and

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

(e) 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 the extent such co-location can exist while minimizing adverse impacts noted in Subsection A(1). Such statement shall become a condition to any approval. This statement shall, at a minimum, require the applicant to supply available co-location for reasonable fees and costs to other telecommunications providers. Failure to provide such an agreement is evidence of the applicant's unwillingness to cooperate with the orderly and well-planned development of Salem and is grounds for a denial.

(f) The applicant shall submit the engineering information detailing the size and coverage required for the PWSF location. The Planning Board may have any submitted information reviewed by a consultant for verification of any claims made by the applicant regarding technological limitations and feasibility for alternative locations, or any other matter required by the application. Cost for this review shall be borne by the applicant in accordance with RSA 676:4, I(g).

F. Waivers.

(1) General. Where the Board finds that extraordinary hardships, practical difficulties, or unnecessary and unreasonable expense would result from strict compliance with the terms of Subsections D and E or the purposes of these regulations may be served to a greater extent by an alternative proposal, it may approve waivers to these regulations, including waivers of the height standard in Subsection D(2)(a). The purpose of granting waivers under provisions of these regulations shall be to ensure that an applicant is not unduly burdened as opposed to merely inconvenienced by said regulations. The Board shall not approve any waiver(s) unless a majority of those present and voting shall find that all of the following apply:

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

(b) The waiver will not, in any manner, vary the provisions of this chapter, the Salem Master Plan, or Official Maps.

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

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

[1] Topography and other site features.

[2] Availability of alternative site locations.

[3] Geographic location of property.

[4] Size/magnitude of project being evaluated and availability of co-location.

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

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

G. Miscellaneous.

(1) Bonding, security and insurance. Recognizing 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 PWSF is abandoned or inadequately maintained and the PWSF owner is incapable and unwilling to remove or maintain it. Furthermore, the Planning Board shall require the submission of proof of adequate insurance covering accident or damage.

(2) Removal of abandoned antennas and facilities. Any antenna or PWSF 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 abandoned PWSF 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 notice to abutters and the last known owner/operator of the facility. If the abandoned facility is not removed within 90 days, the Town may execute the security and have the facility removed. If there are two or more users of a single facility, this provision shall not become effective until all users cease using the facility.

(3) Enforcement. Enforcement of this section shall be in accordance with RSA 676 and this chapter.

§ 490-708 Satellite earth station antennas.

[Added by the 2006 Town Meeting]

A. Purpose. The purpose of this section is to conform this chapter to federal law requirements for the regulation of satellite earth station antennas and to permit regulation by the Town for legitimate public health, safety and/or historical reasons. This section is to be interpreted to be consistent with the regulations of the Federal Communications Commission on earth station antennas, currently located in 47 CFR 1.4000 and 25.104, as those regulations may be amended from time to time.

B. Districts allowing satellite earth station antennas.

(1) Except as specifically allowed, federal law and regulations require that the Town of Salem not impair the installation, maintenance or use of:

(a) Antennas used to receive direct broadcast satellite service, or to receive or transmit fixed wireless signals via satellite as defined by 47 CFR 1.4000(a)(2), and that are one meter or less in diameter.

(b) Antennas used to receive video programming services via multipoint distribution services, instructional television fixed services, and other local multipoint distribution services, or to receive or transmit fixed wireless signals other than via satellite, and that are one meter or less in diameter or diagonal measurement; or

(c) A mast supporting any such antennas described above.

(2) Specifically, all satellite dish antennas that are one meter or less in diameter are permitted in any district in the Town of Salem, except as noted below in Subsection B(3), and satellite dish antennas that are two meters or less in diameter are permitted in any commercial or industrial district in the Town of Salem, except as noted in Subsection B(4).

(3) Exceptions.

(a) Satellite dish antennas one meter or less in diameter are not permitted in residential or commercial districts when:

[1] The Code Enforcement Officer determines that:

[a] The siting of such a facility constitutes a legitimate and clearly defined hazard to public safety, including but not limited to fire or traffic; or

[b] Not permitting the siting is necessary to preserve a prehistoric or historic district, site, building, structure or object included on, or eligible for inclusion on, the National Register of Historic Places, as set forth in the National Historic Preservation Act of 1966, as amended, 16 U.S.C. § 470.

[2] The antenna is not located in an area within the exclusive control of the antenna user where the user has a direct or indirect ownership or leasehold interest in the property.

(b) The Code Enforcement Officer shall apply the standard set forth in Subsection B(3)(a)[1] and [2] above in a nondiscriminatory manner and impose no greater restrictions on antennas covered by this rule than are imposed on the installation, maintenance, or use of other modern appurtenances, devices, or fixtures that are comparable in size, weight, and appearance to these antennas. The application of this subsection shall be no more burdensome to affected antenna users than is necessary to achieve the objectives described in Subsection B(3)(a)[1] and [2] of this section.

(c) Any fee or cost imposed on a user by a rule, law, regulation or restriction must be reasonable in light of the cost of the equipment or services and the rule's, law's, regulation's or restriction's treatment of comparable devices.

(4) Satellite dish antennas in commercial or industrial districts.

(a) Satellite dish antennas are not permitted in commercial or industrial districts when the Code Enforcement Officer determines that the siting of such a facility constitutes a hazard to public health or safety, including but not limited to fire or traffic.

(b) The application of this subsection shall be no more burdensome to satellite users than is necessary to achieve the health or safety objective.

§ 490-709 Home occupations.

[Added by the 1996 Town Meeting; amended by the 2005 and 2020 Town Meetings]

Home occupations are allowed in all residential dwellings.

A. Purpose. The purpose of this section is to:

(1) Ensure the compatibility of home occupations with other uses permitted in residential districts;

(2) Maintain and preserve the character of the residential neighborhood;

(3) Protect residential areas from adverse impacts of activities associated with home occupations; and

(4) Establish criteria for home occupations.

B. Definitions. See § 490-107.

C. Permit procedures.

(1) Application for a home occupation permit shall be made to the Building Department on a form provided by the Building Department and shall be accompanied by a fee as determined by the Board of Selectmen. Home occupations complying with the criteria established in § 490-301B(4) shall be considered minor in character and shall receive a home occupation permit.

(2) Time limit. All home occupation permits shall be issued annually.

(3) Publication. Permits issued for home occupations shall be published in the same manner as building permits.

(4) Inspection. Home occupation applicants shall permit a reasonable inspection of the premises by the Building Department to determine compliance.

(5) Renewal. Home occupation permits shall be renewed each year, provided there has not been any violation of the provisions of Subsections D and E. Requests for renewals shall be submitted to the Building Department accompanied by the renewal fee prior to expiration of the permit.

(6) Nontransferable. Home occupation permits are intended for use by the current resident-owner or tenants with the owner's written permission and shall not be transferred from person to person or address to address.

(7) Voiding of permit. The Building Department may void any home occupation permit for noncompliance with the criteria set forth in Subsections D and E.

D. Criteria for home occupation.

(1) The use shall be conducted entirely within the main dwelling unit and the total shall not exceed the maximum space of 25% of the habitable area. Home occupations shall be permitted in all dwelling units meeting all requirements.

(2) The home occupation shall be clearly incidental and secondary to the residential use, shall not change the residential character of the neighborhood, and shall have no visible appearance.

(3) The home occupation shall be carried on by the resident-owners or tenants with the owner's written permission and employ no others.

(4) Multiple home occupations are permitted within the dwelling, provided that the cumulative impact on the surrounding neighborhood is not greater than the maximum usage of a single home occupation.

(5) No home occupation nor any storage of goods, materials, products, equipment, supplies or vehicles connected with a home occupation shall be allowed in any accessory buildings or garages, attached or detached, or outside the dwelling unit. No additional parking areas will be permitted.

(6) There shall be no display of products visible in any manner from the outside of the dwelling.

(7) There shall be no change in the outside appearance of the dwelling or premises or any visible evidence of the conduct of a home occupation. There shall be no entrance or exitway specifically provided in the dwelling or on the premises for the conduct of the home occupation.

(8) No signs or advertising display signs shall be permitted. Section 490-702D does not apply.

(9) The use shall not require additional pedestrian or vehicular traffic.

(10) No equipment or process shall be used in a home occupation which creates noise, vibration, glare, fumes, or odor detectable off the property.

(11) No equipment or process shall be used which creates visual or audible electrical interference in any radio or television receiver off the premises or causes fluctuations in line voltage off the premises.

(12) The street address of a home occupation business shall not be advertised to the general public in any commercial telephone directory listing, newspaper, radio, or television service.

(13) The home occupation shall not involve the use of commercial vehicles for delivery of materials to or from the premises which is not consistent with normal residential activities.

(14) Any unit that has day care shall not be permitted to obtain a home occupation permit.

E. Variances. Any business not meeting the criteria of a home occupation shall not be permitted and a variance will be required to have that use.

§ 490-710 Large-scale redevelopment projects.

[Added by the 2009 Town Meeting]

The provisions of Subsections A through E of this section shall apply to any lot in the Commercial-Industrial District C which consists of 25 acres or more as of December 31, 2008, or any lots which are consolidated to comprise at least 25 acres, but shall not apply to additions or expansion of existing uses and facilities, including horse racing and/or gaming uses (as defined in Subsection G hereof). The additions or expansions of existing uses and facilities, including horse racing and/or gaming uses, on such lots shall be subject to the provisions of Subsection F of this section.

A. In accordance with RSA 674:21, I(i), the intent of these provisions is to promote flexibility in certain large-scale redevelopment of larger parcels in the Commercial-Industrial C District based upon a conceptual development plan which is consistent with the Town of Salem Master Plan. The process allows flexibility for the redevelopment project to be proposed largely independent from current land use regulations, including the selection of land uses, density, setbacks, buffers, building heights, lot sizes, lot dimensions, and parking requirements otherwise applicable to the property.

B. The Planning Board may grant conditional use permits to vary the restrictions in § 490-501B (permitted uses) and C (restrictions) and § 490-701 (off-street parking and loading), consistent with the criteria noted below. An applicant is not entitled to a conditional use permit, and the Planning Board may, in its discretion, decline to grant such permit if the Board determines such permit is not justified or warranted in accordance with the below criteria and the intent of this regulation. This provision is adopted as an innovative land use control pursuant to RSA 674:21, II, and the Planning Board is vested with sole authority to administer it and to grant the conditional use permits. All other zoning regulations shall apply.

C. As part of the site plan approval process for large-scale redevelopment in the Commercial-Industrial C District, the applicant/owner shall be required to prepare a conceptual development plan for the entire parcel. The conceptual development plan shall show existing site conditions and proposed development, including the general types, locations and intensities of proposed land uses and proposed traffic and pedestrian flows, and shall generally indicate how the proposed development of the site will impact municipal services and facilities and abutting properties.

D. Criteria.

(1) The conceptual development plan shall meet the following criteria for redevelopment:

(a) Creating a well planned and integrated development with a mixture of land uses, including residential, retail, office, entertainment, hotels, restaurants, or other compatible land uses.

(b) Mitigating negative impacts on traffic, public utilities, municipal services, and natural resources.

(c) Limiting new access points on South and North Broadway.

(d) Providing transitions between existing and proposed land uses which protect residential abutters.

(e) Providing high quality site planning and architectural, landscaping and signage designs that meet the retail design standards in the Site Plan Review Regulations.

(f) Minimizing views of large parking lots from existing streets.

(g) Creating pedestrian and vehicular links to abutting parcels.

(h) Establishing open space and pedestrian amenities, including usable common land and wide sidewalks.

(2) The Planning Board shall have sole authority for approval of a conceptual development plan based on the criteria noted above. The Board may approve amendments or revisions to a previously approved conceptual development plan.

E. All subsequent site plans and subdivisions submitted to the Planning Board for approval within the parcel shall conform to the conceptual development plan and these provisions and the Site Plan Review Regulations. The Planning Board may adopt additional performance standards for large-scale redevelopment projects. The construction standards in the Subdivision Regulations, the retail design, landscaping, exterior lighting and signage standards in the Site Plan Review Regulations and the traffic management regulations in the Site Plan Regulations shall apply.

F. The addition or expansion of existing uses and facilities, including horse racing and/or gaming uses (as defined in Subsection G of this section), shall not be subject to the provisions of Subsections A through E of this section. The Planning Board may grant conditional use permits to vary the restrictions in § 490-501B (permitted uses) and C (restrictions) and § 490-701 (off-street parking and loading) for the addition or expansion of existing uses and facilities, including horse racing and/or gaming uses (as defined in Subsection G of this section), consistent with the following criteria:

(1) The proposed addition or expansion must:

(a) Mitigate negative impacts on traffic, public utilities, municipal services, and natural resources.

(b) Limit new access points on South and North Broadway.

(c) Provide transitions for protection to residential abutters.

(d) Minimize views of large parking lots from existing streets.

(e) Be consistent with the spirit and intent of this chapter.

(f) Not adversely affect the aesthetic character of the site and surrounding area.

(2) An applicant is not entitled to a conditional use permit, and the Planning Board may, in its discretion, decline to grant such permit if the Planning Board determines such permit is not justified or warranted in accordance with these criteria.

(3) This provision is adopted as an innovative land use control pursuant to RSA 674:21, II, and the Planning Board is vested with sole authority to administer it and to grant the conditional use permits.

G. For purposes of this section, the phrase "horse racing and/or gaming uses" shall include the operation of pari-mutuel wagering on live horse racing, simulcast horse and dog racing, charitable gaming activities, and other gambling activities that are or may be authorized by the State of New Hampshire, including the operation of slot machines, video lottery terminals, electronic games of chance, racinos, and casinos. For purposes of this section, expansion or additions to horse racing and/or gaming uses shall include expansion of uses and accessory uses located within existing, reconstructed, temporary, or new facilities used for horse racing or gaming. All other accessory uses shall comply with Subsections A through E of this section.

§ 490-711 Impact fees.

[Added by the 2005 Town Meeting[1]]

A. Authority and purpose. This section is enacted pursuant to RSA 674:21, V, as an innovative land use control, and in order to:

(1) Promote the goals and objectives of the Salem Master Plan and the Salem Capital Improvements Program in providing adequate public facilities in Salem.

(2) Make adequate and appropriate public capital facilities available to accommodate the needs of new development.

(3) Allocate an equitable share of the cost of public facilities to new development.

(4) Require new development to provide the funds necessary to accommodate its impact on public capital facilities in proportion to the needs reasonably attributable to new development.

(5) Consolidate the existing authority for school and road impact fee assessments into a single section of this chapter and enable impact fee assessments for public recreation facilities and public safety facilities, subject to adoption by the Planning Board of specific methods of assessment and fee schedules therefor.

B. Definitions. See § 490-107.

C. Authority to assess impact fees.

(1) The Planning Board is hereby authorized to assess impact fees for public capital facilities, including and limited to:

(a) Public road systems and rights-of-way;

(b) Public school facilities;

(c) Public safety facilities; and

(d) Public recreation facilities, not including public open space.

(2) The Planning Board shall have the authority to adopt regulations to implement the provisions of this section and to delegate the administrative functions of impact fee assessment, collection and disbursement.

(3) The use of the following documents, as amended, provides a proportionate basis for the assessment of impact fees in Salem:

(a) (Reserved)[2]

[2] Editor's Note: Former Subsection C(3)(a), regarding the Planning Board’s Cost Allocation Procedure for Roads, was repealed by the 2016 Town Meeting.

(b) Public School Impact Fees: Basis of Assessment, Town of Salem, 2004 update, as amended;

(c) Public Recreation Impact Fees: Basis of Assessment, Salem, New Hampshire (2004), as amended;

(d) Public Safety Impact Fees: Basis of Assessment, Town of Salem, New Hampshire (2005), as amended;

(e) Traffic impact fee system: Town of Salem, New Hampshire, October 2009; and

[Added by the 2016 Town Meeting]

(f) Impact Fees: Basis of Assessment, 2014 Update: Schools, Recreation and Public Safety Impact Fees, August 2014.

[Added by the 2016 Town Meeting]

D. Standards and methodology for assessment.

(1) The amount of any impact fee shall be a proportional share of public facility improvement costs which are reasonably related to the capital needs created by the development, and to the benefits accruing to the development from the capital improvements financed by the fee.

(2) The Planning Board may prepare, adopt, or amend studies, reports, or cost allocation procedures that are consistent with the above standards and which define a basis for impact fee assessment for public capital facilities and the impact fee assessment schedules therefor.

(3) No methodology, cost allocation procedure, or other basis of assessment, nor related impact fee schedules, or changes in the basis of assessment or the fee schedules, shall become effective until it shall have been the subject of a public hearing before the Planning Board.

(4) In the case of new development created by conversion or modification of an existing use, the impact fee shall be based upon the net increase in the impact fee calculated for the new use as compared to the impact fee that was, or would have been, assessed for the previous use.

(5) Upgrading of existing facilities and infrastructures, the need for which is not created by new development, shall not be paid for by impact fees.

E. Review and change in assessment schedules. The impact fee assessment schedules shall be reviewed by the Planning Board in conjunction with updates to the Master Plan, but no less frequently than every five years, along with the foundation documents that provide the basis for the assessment schedules. Such review may result in recommended adjustments in one or more of the fees based on the most recent data as they affect the variables in the fee calculations. Changes in the impact fee assessment schedules shall be effective only where the change in the basis of assessment or the fee schedule is adopted following a public hearing on the proposed change.

F. Assessment and collection of impact fees.

(1) Where subdivision or site plan approval is required for new development, impact fees shall be assessed at the time of Planning Board approval of a subdivision plat or site plan.

(2) When no Planning Board approval is required, or has been made prior to the adoption or amendment of this section, impact fees shall be assessed prior to, or as a condition for, the issuance of a building permit.

(3) Impact fees shall be collected at the time a certificate of occupancy is issued. If no certificate of occupancy is required, impact fees shall be collected at the time when the development is ready for its intended use.

(4) The Planning Board and the fee payer may establish an alternate, mutually acceptable schedule of payment of impact fees at the time of subdivision or site plan approval by the Planning Board. If an alternate schedule of payment is established, the Planning Board may require the applicant to post security, in the form of a cash bond, letter of credit, or performance bond, so as to guarantee future payment of assessed impact fees.

(5) No building permit for new development requiring payment of an impact fee shall be issued until the amount of the impact fee assessment has been determined by the Chief Building Official.

(6) No building permit shall be issued for new development until the fee payer has established a mutually acceptable schedule for payment of such fee with the Town of Salem. No certificate of occupancy shall be issued for new development which is subject to impact fee assessment until the fee is paid in full.

G. Waivers. The Planning Board may grant full or partial waivers of impact fees where the Board finds that one or more of the following criteria are met with respect to the particular public capital facilities for which impact fees are normally assessed:

(1) A fee payer may request a full or partial waiver of public school and recreation impact fees for those residential units that are lawfully restricted to occupancy by senior citizens age 62 or over in a development that is also maintained in compliance with the provisions of RSA 354-A:15, Housing for Older Persons. The Planning Board may waive school impact fee assessments on such age-restricted units where it finds that the property will be bound by lawful deeded restrictions on occupancy by senior citizens age 62 or over for a period of at least 20 years.

(2) A person undertaking the development of in-law apartments, accessory apartments, or projects approved under the Seniors Housing Overlay District may apply for a waiver of school impact fees otherwise required by this section. Prior to granting such a waiver for certain dwelling units in such a development, the Planning Board shall find that, due to lawful, long-term occupancy restrictions pertaining to such units, no significant school enrollment impacts are anticipated as a result of the construction of those units. Public safety, recreation, and road impact fees shall still be required for such dwelling units.

[Amended by the 2011 Town Meeting]

(3) The Planning Board may agree to waive all or part of an impact fee assessment and accept, in lieu of a cash payment, a proposed contribution of real property or facility improvements of equivalent value and utility to the public. Prior to acting on a request for a waiver of impact fees that would involve a contribution of real property or the construction of capital facilities, the Planning Board shall submit a copy of the waiver request to the Board of Selectmen for its review and consent prior to its acceptance of the proposed contribution. The value of contributions or improvements shall be credited only toward facilities of like kind and may not be credited to other categories of impact fee assessment. All costs incurred by the Town for the review of such proposal, including consultant and counsel fees, shall be paid by the fee payer.

H. Appeals under this section.

(1) If a fee payer elects to dispute the amount of the impact fee, the fee payer may prepare and submit to the Planning Board an independent fee calculation study for the new development activity which is proposed. The Planning Board shall review such study and render its decision. All costs incurred by the Town for the review of such study shall be paid by the fee payer.

(2) A party aggrieved by a decision of the Planning Board under this section may appeal such decision to the Superior Court as provided by RSA 677:15, as amended.

I. Administration of impact fees.

(1) All funds collected shall be properly identified and promptly transferred for deposit to the appropriate capital facility impact fee account and shall be used solely for the purposes specified in the basis of assessment adopted by the Planning Board for that capital facility category. Impact fee accounts shall be special revenue fund accounts and under no circumstances shall such revenues accrue to the general fund.

(2) The Town Treasurer shall have custody of all fee accounts and shall pay out the same only upon written orders of the Board of Selectmen and they shall be used solely for the reimbursement of the Town and School District for the cost of public capital improvements for which they were collected or to recoup the cost of capital improvements made by the Town or School District in anticipation of the needs for which the impact fee was collected. The Board of Selectmen shall annually order the release of school impact fee accounts to the Salem School District, upon a demonstration by the District of programmed expenditures eligible for reimbursement by impact fees.

(3) The Town Treasurer shall record all fees paid, by date of payment and the name of the person making payment, and shall maintain an updated record of the current ownership, Tax Map and lot reference number of properties for which fees have been paid under this section for a period of at least nine years.

(4) At the end of each fiscal year, the Town Treasurer shall make a report to the Board of Selectmen and the Salem School District, giving an account of all impact fee transactions during the year.

(5) In the event that bonds or similar debt instruments have been issued for capital facilities that are the subject of impact fee assessments, and where improvements have been constructed in anticipation of new development, impact fees may be used to pay debt service on such bonds or similar debt instruments.

J. Refund of fees paid. The owner of record of property for which an impact fee has been paid shall be entitled to a refund of that fee, plus accrued interest, where:

(1) The impact fee has not been encumbered or legally bound to be spent for the purpose for which it was collected within a period of six years from the date of the final payment of the fee; or

(2) The Town or, in the case of school impact fees, the Salem School District has failed, within the period of six years from the date of the final payment of such fee, to appropriate the nonimpact fee share of related capital improvement costs.

K. Other authority retained. This section shall not be deemed to affect other authority of the Planning Board over subdivisions and site plans, including but not limited to:

(1) The authority of the Planning Board to declare a development to be premature or scattered in accordance with the regulations of the Board and in accordance with RSA 674:36, II(a);

(2) The authority of the Planning Board to require the payment of exactions for off-site improvements for highway, drainage, sewer and water upgrades necessitated by the development, in accordance with the provisions of RSA 674:21, V(j); or

(3) Other authority of the Town of Salem to assess other fees under the authority of other statutes, ordinances of the Town of Salem, or the Salem Planning Board Site Plan Review and Subdivision Regulations.

L. Impact fee schedules. The documents referenced in Subsection C(3) support the impact fee schedules listed in the latest impact fee schedule adopted by the Planning Board and available at Town Hall. Land uses that are not within the categories listed in the schedules may require special calculations using a comparable basis of assessment, or the application of an assessment amount based on a land use of similar impact. Fees shall be based on the principal use of the structure.

[Amended by the 2016 Town Meeting]

[1] Editor's Note: Original Art. XXI, Impact Fee Assessment (1994), was repealed by the 2005 Town Meeting.

§ 490-712 Small wind energy systems.

[Adopted by the 2010 Town Meeting]

A. Purpose. This section is enacted in accordance with RSA 674:62 to 674:66 and the purposes outlined in RSA 672:1, III-a. The purpose of this section is to accommodate small wind energy systems (SWES) in appropriate locations while protecting the public's health, safety and welfare. In addition, this section provides a permitting process for SWES to ensure compliance with the provisions of the requirements and standards established herein.

B. Definitions. See § 490-107.

C. Procedure for review.

(1) Building permit. SWES and MET towers are an accessory use permitted in all zoning districts where structures of any sort are allowed. No SWES shall be erected, constructed, or installed without first receiving a building permit from the Building Inspector. A building permit shall be required for any physical modification to an existing small wind energy system. MET towers that receive a building permit shall be permitted on a temporary basis not to exceed three years from the date the building permit was issued.

(2) Application. Applications submitted to the Building Inspector shall contain a site plan with the following information:

(a) Property lines and physical dimensions of the applicant's property.

(b) Location, dimensions, and types of existing major structures on the property.

(c) Location of the proposed small wind energy system, foundations, guy anchors and associated equipment.

(d) Tower foundation blueprints or drawings.

(e) Tower blueprints or drawings.

(f) Setback requirements as outlined in this section.

(g) The right-of-way of any public road that is contiguous with the property.

(h) Any overhead utility lines.

(i) SWES specifications, including manufacturer, model, rotor diameter, tower height, tower type, and nameplate generation capacity.

(j) SWES that will be connected to the power grid shall include a copy of the application for interconnection with their electric utility provider.

(k) Sound level analysis prepared by the wind generator manufacturer or qualified engineer.

(l) Electrical components in sufficient detail to allow for a determination that the manner of installation conforms to the New Hampshire State Building Code.

(m) Evidence of compliance with or nonapplicability of Federal Aviation Administration requirements.

(n) List of abutters to the applicant's property.

(3) Abutter and regional notification. In accordance with RSA 674:66, the Building Inspector shall notify, at the applicant's expense, all abutters and the local governing body by certified mail upon application for a building permit to construct a small wind energy system. The public will be afforded 30 days to submit comments to the Building Inspector prior to the issuance of the building permit. The Building Inspector shall review the application for regional impacts per RSA 36:55. If the proposal is determined to have potential regional impacts, the Building Inspector shall follow the procedures set forth in RSA 36:57, IV.

D. Standards. The Building Inspector shall evaluate the application for compliance with the following standards:

(1) Setbacks. The setback shall be calculated by multiplying the minimum setback requirement number by the system height and measured from the center of the tower base to property line, public roads, or nearest point on the foundation of an occupied building.

	Minimum Setback Requirements
	Occupied Buildings on Participating Landowner Property	Occupied Buildings on Abutting Property	Property Lines of Abutting Property and Utility Lines	Public Roads
	0	1.5	1.5	1.5

(a) SWES must meet all setbacks for principal structures for the zoning district in which the system is located.

(b) Guy wires used to support the tower are exempt from the SWES setback requirements.

(2) Tower. The maximum tower height shall be restricted to 35 feet above the tree canopy within 300 feet of the small wind energy system. In no situation shall the tower height exceed 150 feet.

(3) Sound level. The SWES shall not exceed 55 decibels using the A scale (dBA), as measured at the site property line, except during short-term events such as severe wind storms and utility outages.

(4) Shadow flicker. SWES shall be sited in a manner that does not result in significant shadow flicker impacts. Significant shadow flicker is defined as more than 30 hours per year on abutting occupied buildings. The applicant has the burden of proving that the shadow flicker will not have significant adverse impact on neighboring or adjacent uses. Potential shadow flicker will be addressed either through siting or mitigation measures.

(5) Signs. All signs, including flags, streamers and decorative items, both temporary and permanent, are prohibited on the small wind energy system, except for manufacturer identification or appropriate warning signs.

(6) Code compliance. The SWES shall comply with all applicable sections of the New Hampshire State Building Code.

(7) Aviation. The SWES shall be built to comply with all applicable FAA regulations, including but not limited to 14 CFR Part 77, Subpart B, regarding installations close to airports, and the New Hampshire aviation regulations, including but not limited to RSA 422-b and RSA 424.

(8) Visual impacts. It is inherent that SWES may pose some visual impacts due to the tower height needed to access wind resources. The purpose of this section is to reduce the visual impacts without restricting the owner's access to the optimal wind resources on the property.

(a) The applicant shall demonstrate through project site planning and proposed mitigation that the small wind energy system's visual impacts will be minimized for surrounding neighbors and the community. This may include but not be limited to information regarding site selection, wind generator design or appearance, buffering, and screening of ground-mounted electrical and control equipment. All electrical conduits shall be underground, except when the financial costs are prohibitive.

(b) The color of the SWES shall either be the stock color from the manufacturer or painted with a nonreflective, unobtrusive color that blends in with the surrounding environment. Approved colors include but are not limited to white, off-white or gray.

(c) A SWES shall not be artificially lit unless such lighting is required by the FAA. If lighting is required, the applicant shall provide a copy of the FAA determination to establish the required markings and/or lights for the small wind energy system.

(9) Approved wind generators. The manufacturer and model of the wind generator to be used in the proposed SWES must have been approved by the California Energy Commission or the New York State Energy Research and Development Authority, or a similar list approved by the State of New Hampshire, if available.

(10) Utility connection. If the proposed SWES is to be connected to the power grid through net metering, it shall adhere to RSA 362-A:9.

(11) Access. The tower shall be designed and installed so as not to provide step bolts or a ladder readily accessible to the public for a minimum height of eight feet above the ground. All ground-mounted electrical and control equipment shall be labeled and secured to prevent unauthorized access.

(12) Clearing. Clearing of natural vegetation shall be limited to that which is necessary for the construction, operation and maintenance of the SWES and as otherwise prescribed by applicable laws, regulations, and ordinances.

E. Abandonment.

(1) At such time that a SWES is scheduled to be abandoned or discontinued, the applicant will notify the Building Inspector by certified U.S. mail of the proposed date of abandonment or discontinuation of operations.

(2) Upon abandonment or discontinuation of use, the owner shall physically remove the SWES within 90 days from the date of abandonment or discontinuation of use. This period may be extended at the request of the owner and at the discretion of the Building Inspector. "Physically remove" shall include but not be limited to:

(a) Removal of the wind generator and tower and related above-grade structures.

(b) Restoration of the location of the SWES to its natural condition, except that any landscaping, grading or below-grade foundation may remain in its same condition at initiation of abandonment.

(3) In the event that an applicant fails to give such notice, the system shall be considered abandoned or discontinued if the system is out of service for a continuous twelve-month period. After the 12 months of inoperability, the Building Inspector may issue a notice of abandonment to the owner of the small wind energy system. The owner shall have the right to respond to the notice of abandonment within 30 days from notice receipt date. After review of the information provided by the owner, the Building Inspector shall determine if the SWES has been abandoned. If it is determined that the SWES has not been abandoned, the Building Inspector shall withdraw the notice of abandonment and notify the owner of the withdrawal.

(4) If the owner fails to respond to the notice of abandonment or if, after review by the Building Inspector, it is determined that the SWES has been abandoned or discontinued, the owner of the SWES shall remove the wind generator and tower at the owner's sole expense within three months of receipt of the notice of abandonment. If the owner fails to physically remove the SWES after the notice of abandonment procedure, the Building Inspector may pursue legal action to have the SWES removed at the owner's expense.

F. Violation. It is unlawful for any person to construct, install, or operate a SWES that is not in compliance with this section. SWES installed prior to the adoption of this section are exempt from this section except when modifications are proposed to the small wind energy system.

G. Penalties. Any person who fails to comply with any provision of this section or a building permit issued pursuant to this section shall be subject to enforcement and penalties as allowed by RSA 676:17.

§ 490-713 Noncommercial keeping of chickens.

[Added by the 2016 Town Meeting]

A. Purpose. Recognizing the importance of sustainable and locally sourced food, the following regulations will govern the keeping of chickens and are designed to prevent nuisances and conditions that are unsanitary or unsafe.

B. Notwithstanding the provisions of §§ 490-301B and 490-302B of this chapter, the noncommercial raising and keeping of chickens shall be permitted on all lots of at least one acre in size in the Rural District under the following conditions:

(1) Number. No more than six hens shall be allowed for each lot.

(2) Setbacks. Coops or cages housing chickens and manure storage areas shall be kept at least 25 feet from any property line. Coops and cages shall not be located in the front yard.

(3) Enclosure. Hens shall be provided with a covered, predator-proof coop or cage that is well ventilated and designed to be easily accessed for cleaning. The coop shall allow at least two square feet per hen. Hens shall have access to an outdoor enclosure that is adequately fenced to contain the birds on the property and to prevent predators from access to the birds. Hens shall not be allowed out of these enclosures unless an individual, over 18 years of age, is directly monitoring the hens and able to immediately return the hens to the cage or coop if necessary.

(4) Sanitation. The coop and outdoor enclosure must be kept in a sanitary condition and free from offensive odors. The coop and outdoor enclosure must be cleaned on a regular basis to prevent the accumulation of waste. Manure storage must comply with Best Management Practices published by the New Hampshire Department of Agriculture.

(5) Slaughtering. There shall be no outdoor slaughtering of chickens.

(6) Roosters. It is unlawful for any person to keep roosters.

(7) Permit. A permit shall not be required unless the coop is greater than 200 square feet.

(8) Chickens may only be kept as an accessory use to, and on the premises with, a single-family residence. No commercial activity related to the keeping of chickens, such as selling products or breeding, is allowed.

§ 490-714 Solar energy.

[Added by the 2021 Town Meeting]

A. Authority. This section is enacted pursuant to RSA 672:1, III-a, 674:17, I(j), and 674:36, II(k), as amended.

B. Purpose. The purpose of this section is to accommodate solar energy collection systems and distributed generation resources in appropriate locations, while protecting the public's health, safety and welfare, and the environment. The Town intends to facilitate the state and national goals of developing clean, safe, renewable energy resources in accordance with the enumerated polices of NH RSA 374-G and 362-F.

C. Definitions. See § 490-107.

D. Categories of use.

(1) Municipal solar energy systems. All solar collection systems for municipal use are exempt from land use regulations pursuant to NH RSA 674:54.

(2) Roof- or building-mounted systems. Roof- or building-mounted systems are permitted on all buildings in all districts, regardless of primary building use, subject to the issuance of a building permit and compliance with the following:

(a) All roof- or building-mounted systems shall comply with all relevant building and fire codes.

(b) The amount of energy that can be generated with rooftop systems shall comply with the limits prescribed by the New Hampshire Public Utilities Commission. Generation levels will be limited by available roof area and limitations associated with building and fire standards.

(c) Roof- or building-mounted systems are exempt from building height standards. However, systems that extend above the roofline shall be located and designed to minimize visual impacts to abutting properties.

(3) Freestanding solar energy systems (ground-mounted).

(a) General standards that apply to all freestanding solar energy systems:

[1] Systems shall comply with applicable state and federal laws and regulations and local ordinances, including the State Building Code, the State Electrical Code and the State Fire Code.

[2] Systems shall be considered structures and shall comply with building setback requirements from lot lines for the entire system.

[3] Systems shall be considered impervious surface. Systems shall be subject to maximum lot coverage addressed in accordance with the Town of Salem Zoning Dimension Restrictions Table.[1]

[1] Editor’s Note: The Zoning Dimension Restrictions Table is included as an attachment to this chapter.

[4] To the maximum extent practical, all wiring associated with the utility connection shall be underground.

[5] Systems shall be located to minimize visual impacts to abutting properties and the road. To the greatest extent possible, sites shall be designed to preserve and take advantage of existing vegetation, topography or structures to screen the freestanding system from abutting properties and roads. If existing vegetation or other site characteristics cannot be preserved or do not exist to adequately screen the system, additional landscape screening shall be provided.

[6] Solar panels shall have anti-reflective coatings.

(b) Single-family or duplex residential solar energy systems, an on-site, accessory use, are permitted in all districts subject to issuance of a building permit and the following:

[1] Systems shall be designed at a scale that balances energy generation with the projected energy needs of the principal residential use and any permitted accessory uses.

[2] Systems shall be sited on relatively level ground and in locations that minimize the need for clearing of forest and site grading. All disturbed soils shall be properly stabilized and revegetated.

[3] Systems shall be located to the rear of the property between the rear of the building and the rear property line when feasible and shall provide screening to minimize adverse visual impacts from the street and abutting residential properties.

(c) Multiunit residential or nonresidential solar energy systems, an on-site accessory use serving the primary uses of the property, are permitted in all districts, subject to Planning Board site plan review, issuance of a building permit, and the following:

[1] Systems shall be designed at a scale that balances energy generation with the projected energy needs of the principal uses of the property.

[2] Systems shall be sited to minimize the need for clearing of forest and site grading, and all disturbed soils shall be properly stabilized and revegetated.

[3] Systems shall be located in the rear of the property between the building and rear property line when feasible and shall provide screening to minimize adverse visual impacts from the street and abutting residential properties. Systems may not be sited in the front of a building unless adequately screened, as determined during site plan review.

[4] Systems are permitted to be mounted on the roof structure of carports over parking areas.

(d) Commercial solar energy systems, a principal use, are permitted in the Rural, Commercial-Industrial, Business Office or Industrial District, subject to Planning Board site plan review, issuance of a building permit, and the following:

[1] Systems shall be sited to minimize the need for clearing of forest and site grading, and all disturbed soils shall be properly stabilized and revegetated.

[2] Lighting. On-site lighting shall be minimal and limited to access and safety requirements only. All lighting shall be downcast and shielded from abutting properties.

[3] Emergency response. In order to ensure sufficient emergency response the following shall be provided:

[a] Access to the site for emergency response shall be detailed on the plan. Aisle width should be reviewed by the Fire Department for access for emergency vehicles with a turnaround.

[b] A narrative or manual for the Fire Department detailing response guidance and disconnection locations necessary for fire response.

[c] Additional industry guidance documents that provide information about safety procedures for specific equipment on site shall be provided as needed to ensure adequate public safety.

[d] Contact information for the solar collection system owner/operator shall be posted on site at the accessway and provided and updated to the municipality.

E. Maintenance. A solar energy system shall be maintained in good condition. Maintenance shall include, but not be limited to, painting, structural repairs, and integrity of security measures. A solar energy system must be kept free of all hazards, including, but not limited to, faulty wiring, lose fastenings, being in an unsafe condition or detrimental to public health, safety or general welfare. Site access shall be maintained to a level acceptable to the Town Fire Chief.

F. Abandonment and decommissioning.

(1) The owner of a solar system shall remove panels, ground-mounted structures, anchors, underground utility lines, equipment shelters, security fencing, and other facilities from the site within 120 days of discontinuance or abandonment of the system. The site must be restored and left in a stable, noneroding, litter-free, and attractive condition.

(2) In order to ensure that such removal takes place, a decommissioning bond for multiunit residential or nonresidential solar energy systems, and commercial solar energy systems shall be provided for in a form and an amount that is acceptable to the Planning Board, equal to the estimated cost of removal of the approved facilities. The performance guarantee can be used by the owner of the facility, with prior written approval of the Town, to pay removal costs. Any remaining funds will be returned to the owner upon the successful removal of discontinued or abandoned facilities. If the owner fails to remove the facilities or to properly restore the site, the Town may utilize these funds to pay for such removal, 30 days after sending written notification by certified mail of the Town's intent to remove.

G. Violation. It is unlawful for any person to construct, install or operate a solar energy system that is not in compliance with this section. Solar energy systems installed prior to adoption of this section are exempt from this section except when modifications are proposed to the solar energy system.

H. Penalties. Any person who fails to comply with any provision of this section or a building permit issued pursuant to this section shall be subject to enforcement and penalties allowed by RSA 676:17.

I. Severability clause. The invalidity of any subsection or provision of this section shall not invalidate any other section or provision thereof.