Article 22 Special Exceptions

There are two types of special exceptions included in this chapter:

Uses. Special exceptions for actual "uses" as defined in this chapter and as listed in the Uses Tables (e.g., contractor's storage yard).

Departures from standards. Special exceptions to allow for certain departures from standards otherwise applicable, articulated throughout this chapter (e.g., allowing for reduced setbacks for garages).

The process is the same for both types of special exceptions. The term "special exception" is used throughout this chapter for both situations.

Criteria and conditions. The base criteria in § 275-22.2 apply to all special exceptions. In addition, certain particular uses have specific criteria and/or conditions which must also be met in order for those uses to be approved as listed below in § 275-22.3, Conditions for particular uses. For those uses which are not specifically discussed below, it is necessary only that the base criteria be satisfied.

Burden of persuasion. The applicant shall bear the burden of persuasion, through the introduction of sufficient evidence as may be required by this chapter or by the Zoning Board of Adjustment in its reasonable discretion, that the proposal will comply with this chapter.

Pertinent information. In reviewing an application for a special exception, the ZBA shall consider the following information, as applicable to the case:

Compliance with the applicable requirements contained in this chapter;

The results of any special investigative or scientific studies prepared in association with the proposed development;

Special reports or analysis of the project or its impacts, prepared by the City or consultants;

The findings, goals and objectives of the City's Master Plan;

The relationship of the development to the timing, location and cost of public improvements scheduled in the Capital Improvements Program;

Testimony and evidence introduced at the public hearing on the application; and

Any other appropriate information or documentation.

Terms of approval. The ZBA may also impose, in addition to any applicable conditions specified in this chapter, such additional conditions as it finds reasonably appropriate to safeguard the neighborhood or otherwise serve the purposes of this chapter, including, but not limited to, the following:

Increasing front, side, and rear setbacks in excess of the minimum requirements of this chapter;

Screening of the premises from the street or adjacent property in excess of any minimum requirements of this chapter;

Landscaping in excess of any minimum requirements of this chapter or the Site Plan Regulations;

Modification of the exterior features of buildings or other structures;

Limitations on the size of buildings and other structures more stringent than the requirements of this chapter;

Footprint or lot coverage less than the allowed maximum of this chapter;

§ 275-22.3 Conditions for particular uses.

Limitations on the number of occupants and methods and times of operation;

(8)

Regulation of design of access drives, sidewalks, crosswalks, and other traffic features;

(9)

Off-street parking and loading spaces in excess of, or less than, the minimum requirements of this chapter or the Site Plan Regulations; and

(10)

Other performance standards as appropriate.

Existing uses and structures. Any use that was lawfully established prior to the adoption of this chapter and which now may require a special exception is now permitted and may continue in the same manner and to the same extent as conducted prior to the adoption of this chapter. However, special exception approval shall be secured from the ZBA before the use or structure or building in which the use is conducted may be intensified, enlarged, expanded, moved, or significantly altered.

Expiration. A special exception shall become null and void after three years from the date of approval unless a building permit is issued, a plat is recorded, or other appropriate action is taken pursuant to the special exception within that time frame.

Procedures. See Article 4, Zoning Board of Adjustment and Building Code Board of Appeals.

§ 275-22.2 Base criteria.

The Zoning Board of Adjustment shall approve a special exception if, and only if, it reasonably determines that all of the following criteria are met (in addition to those criteria/conditions articulated for specific uses in § 275-22.3 below, or in addition to those articulated elsewhere in this chapter for departures from standards):

Location. The specific site is an appropriate location for the proposed use or structure;

Neighborhood. The proposed use would not be detrimental, injurious, obnoxious, or offensive to the neighborhood;

Traffic. The proposed use would not create an undue hazard or nuisance to vehicular or pedestrian traffic;

Public facilities. Adequate and appropriate facilities and utilities would be provided to ensure the proper operation of the proposed use or structure; and

Master Plan. The proposed use or structure is consistent with the spirit of this chapter and the intent of the Master Plan.

For each individual use or departure from standards listed below, all of the specific conditions attached to that use must be met along with the base criteria articulated in § 275-22.2 above.

Adult-oriented establishments. Adult-oriented uses shall exist and be operated in accordance with the following requirements:

Purpose. In the development and execution of this subsection, it is recognized that there are some uses which, because of their very nature, are recognized as having serious objectionable operational characteristics, particularly when several of them are concentrated under certain circumstances thereby having a deleterious effect upon the use and enjoyment of adjacent areas. Special regulation of these uses is necessary to ensure that these adverse effects will not contribute to the blighting or downgrading of the surrounding neighborhood. These special regulations are itemized in this subsection. The primary control or regulation is for the purpose of preventing a concentration of these uses in any one area. Uses subject to these controls are as follows:

Adult bookstore.

Adult cabaret.

Adult motion-picture theater.

Adult mini-motion-picture theater.

Massage parlor.

Location restrictions. No adult-oriented establishment shall be operated or maintained within 500 feet of a residentially zoned district, or within 500 feet of a church, a state-licensed day-care facility, a public library, a public park or playground, public or private educational facilities which serve persons age 17 or younger, an elementary school, or a high school. Only one of the above-regulated uses shall be allowed per block frontage on any street. No adult-oriented establishment shall be operated or maintained within 1,000 feet of another such establishment.

Measurement. The distance limitations in Subsection A(2) shall be measured in a straight line from the main public entrances of said premises, or from the closest portion of any lot line of properties in residentially zoned districts.

Sign requirements for adult-oriented establishments. Notwithstanding the sign provisions of this chapter, all adult-oriented establishments shall comply with the following sign requirements:

All signs shall be flat wall signs.

The amount of allowable sign area shall be one square foot of sign area per foot of lot frontage on a street; provided, however, that in no event shall such sign exceed 32 square feet in total area.

No merchandise or pictures of the products or entertainment on the premises shall be displayed in window areas or any area where they can be viewed from the sidewalk in front of the building.

Window areas shall not be covered or made opaque in any way. No signs shall be placed in any window. A one-square-foot sign may be placed on the door to state hours of operation and admittance to adults only.

Agricultural building, reuse of existing. An agricultural building that is more than 50 years old, no longer proposed for agricultural use, and not situated in an R1 or R2 District may be converted to a nonresidential use subject to the following standards:

The nonresidential activity shall occur completely within the agricultural building and there shall be no outside storage of material, equipment, or products.

The essential exterior architectural character of the building shall be maintained.

Contractor's storage yard. Minimum setbacks from all property lines shall be 25 feet or as specified in Table 19-C, Dimensional Standards - Industrial Districts, whichever is greater. No structures or stockpiled materials related to the storage yard operation shall be situated within these setbacks. Heavy vehicles or equipment in working order may be parked within the setbacks provided that none is parked within 15 feet of a property line (see the corresponding section on contractor's storage yards in the Site Plan Regulations). A contractor's storage yard shall not be established in a floodplain as defined in Article 13, Flood Hazard Overlay District (FHOD).

Earth excavation. New earth excavation projects shall be permitted only subject to meeting the following criteria/conditions, insofar as these additional standards are not superseded by RSA 155-E:

Additional criteria to be met, beyond those stated in RSA 155-E:

It will not cause unreasonable soil erosion or a reduction in the capacity of land to hold water during the operation.

It will not adversely impact the quality of the groundwater or of any underlying aquifer.

It will not cause unsafe conditions on or excessive use of nearby roads.

It will not have an undue adverse effect on the scenic or natural beauty of the area, other aesthetic values, historic sites, or rare and irreplaceable natural areas.

Appropriate bonding for the reclamation of an excavation site shall be required prior to the start of any permitted earth excavation operation.

Regulations. No person shall perform earth excavation except in compliance with the provisions of RSA 155-E as amended, this chapter, and the Site Plan Regulations applicable to earth excavation.

Existing operation. Any existing excavation activity operating under a permit issued prior to the date of adoption of this chapter may continue until the expiration of the permit, except that any expansion or change in operation not covered by that permit shall be in compliance with the provisions of this subsection.

Buffers. The following buffers/setbacks are established. No excavation, processing, or removal of vegetation may occur within the buffer. Where the buffer has been removed or is not adequate, the Planning Board may stipulate reestablishment of the buffer, as appropriate.

A fifty-foot buffer along every lot line.

A seventy-five-foot buffer from any perennial stream or wetland.

Buffers specified in Article 12, Conservation Overlay District.

A one-hundred-foot setback shall be established for excavation and processing from any existing dwelling located on an adjacent lot to the side or rear.

Water table. The seasonal high water table must be determined prior to Zoning Board of Adjustment approval and, if excavation is proposed within four feet within the Aquifer Protection Overlay District or within two feet outside of the Aquifer Protection Overlay District, the following additional criteria must be met:

The applicant must clearly demonstrate that the excavation activity will not adversely affect groundwater quality.

The applicant must clearly demonstrate that such excavation will not create a health or safety hazard or provide a plan outlining measures to mitigate those hazards.

The applicant must clearly demonstrate that such excavation will not create a groundwater pollution hazard or provide a plan outlining measures to mitigate that hazard.

The applicant must include a section in the reclamation plan that adequately addresses health, safety, and pollution concerns in this area after the excavation activities are complete.

See Article 10, Aquifer Protection Overlay District, for other provisions within that district.

Abandoned sites. In the event the Director of Building, Zoning, and Licensing Services/Zoning Administrator determines that any abandoned excavation presents a hazard to the public health, safety or welfare, the owner may be required, following a public hearing before the Planning Board, to comply with any timetable and bonding requirements to be established by the Planning Board to complete reclamation. Should reclamation not be completed, the Board may request the City to authorize reclamation at the City's expense. The City's costs shall then constitute an assessment against the owner and shall create a lien against the property on which the excavation is located. Such assessment and lien may be enforced and collected in the same manner as provided for real estate taxes.

Farm; farm, crop.

Lot size. The minimum lot size is five gross acres for a farm and five gross acres for a crop farm.

Housing. The Planning Board is empowered to consider and approve special on-site housing arrangements to accommodate farm workers, such as cluster housing or temporary/seasonal housing, under site plan review.

Retail sales. Any farm goods produced on site along with limited related products may be sold on site.

Livestock. Housing for any livestock for a farm shall be set back at least 100 feet from any side or rear lot lines. Housing for fowl, fur-bearing animals, and swine shall be set back at least 150 feet from any side or rear lot lines. The ZBA may reduce or waive this requirement by special exception. There is no setback for open pens and fencing provided animals are not left in such pens overnight.

Manure. Any storage areas for manure shall be set back at least 200 feet from any lot lines. Best management practices shall be followed in the handling of manure.

Performance standards. The general provisions of Article 28 of this chapter and RSA 432:33 and 21:34-a shall apply.

Garage setbacks. A special exception may be granted to reduce side and/or rear setback requirements for garages (only applicable for residential use) in the residential districts subject to all of the following conditions/findings:

The lot must not have been created by a subdivision that occurred after January 1, 2006;

A finding by the Zoning Board of Adjustment that there is some existing pattern in the area for garage setbacks smaller than those required;

Locating the garage in conformance with the side and/or rear setback requirements would significantly impact existing vegetation, views from the residence, use of the setback, or site circulation, or is impractical due to lot dimensions or other constraints;

If a new driveway serves the garage, it must be endorsed by the City Engineer, prior to the public hearing;

Any reduction in setback shall not be greater than 50% of the required setback;

The proposed garage must be set back at least 10 feet from any existing building located on an adjacent lot;

The proposed garage must be designed to blend with the architectural character of the neighborhood (siding, the arrangement of windows in a building, roof pitch, etc.); elevation drawings must be submitted to and approved by the ZBA;

(8)

The garage does not exceed 24 feet in either length or width; and

(9)

The garage walls do not exceed 10 feet in height (the roof may exceed this ten-foot limit).

Junkyard. All materials shall be fully screened from the street and from all abutting property by a solid wall or fence at least six feet in height. The Planning Board may stipulate a taller wall or fence, as appropriate.

Kennel (commercial).

The minimum lot size shall be three acres.

Minimum setbacks for structures and pens housing dogs shall be:

Front: 150.

Side and rear: 100.

The Planning Board may stipulate that appropriate sound mitigation devices be installed and that fences, walls, and/or vegetation be installed to screen the site.

Residential facility. The minimum lot size shall be increased by 2,000 square feet per resident.

Roadside farm stand.

The roadside structure shall be set back from the front lot line at least 20 feet.

There shall be adequate off-street parking which shall have safe access to and from the road. A driveway permit shall be required in all cases.

Solid waste facility. Subject to the same provisions stated in Article 20.

Solar, community and solar commercial and solar, utility systems.

[Added 12-6-2022[1]]

Screening.

Ground-mounted solar collection systems shall have perimeter fencing and/or vegetative screening as approved by the Planning Board. The use of vegetative screening is encouraged.

Perimeter fencing for the site shall not include barbed wire or woven wire designs without visual screening and shall preferably use wildlife-friendly fencing standards that include clearance at the bottom.

Glare.

Significant glare shall be considered a nuisance as per Rochester Zoning Ordinance § 275-28.2D, Performance standards.

Applicants must demonstrate that the solar collection system design has reasonably considered and mitigated potential impacts of significant glare onto abutting structures and roadways. Mitigation may include angle of panels, antireflective panel coating or additional screening to minimize impacts.

Noise.

Loud or disruptive noise shall be considered a nuisance as per Rochester Zoning Ordinance § 275-28.3 Noise.

Noise levels at the property line shall be in accordance with the municipal noise ordinance.

Applicants must demonstrate that operation of the solar collection system will not exceed permissible noise levels at the property line. Mitigation measures may be required to achieve permissible noise levels.

Electric and communication lines.

Power and communication lines between the solar collection system and the point of interconnection shall be buried underground.

Ground cover. The following provisions shall apply to the clearing of existing vegetation and establishment of vegetated ground cover.

Preservation of trees and existing vegetation that will not impede or shade the functioning of the solar collection system is encouraged.

Applicants that propose a ground mounted solar collection systems exceeding 30% lot coverage or one acre, whichever is greater shall submit a vegetative management plan prepared by a landscape architect or similarly qualified professional. The plan shall identify:

The qualified professional(s) consulted or responsible for the plan.

The mix of proposed perennial vegetation intended to prevent erosion, and manage run off. Vegetative cover should include a mix of native perennial grasses and wildflowers.

[3]

The management methods and schedules for how the vegetation will be managed (mowing, replacement, etc.).

The solar collection system shall be approved by the Planning Board prior to any site work or lot clearing.

Stormwater.

Ground-mounted solar collection systems are subject to City standards for stormwater management, erosion and sediment control provisions, as well as any applicable state and federal requirements.

If the solar collection system is less than 30% lot coverage or less than one acre shall be exempt from stormwater management requirements provided the ground below the System is not compacted and vegetated.

Ground-mounted systems that require land clearing and grubbing of forested cover greater than one acre, shall at a minimum, submit a stormwater permit to the Department of Public Works.

Abandonment and decommissioning.

Solar collection systems shall be deemed to be abandoned by a municipal official as evidenced by the lack of system maintenance or operation discontinuance without prior written consent of the municipality (such as for reasons beyond the control of the owner/operator).

An abandoned system shall be removed, and the site restored with vegetative cover within 12 months of abandonment.

(8)

Submittal requirements for primary use solar collection system.

Primary use solar collection systems shall submit a site plan application.

All solar collection systems shall comply with applicable aspects of the Zoning Ordinance and site plan regulations. Applications must address all requirements for principle use solar collection systems as well as provide the following:

A plot plan with a horizontal scale and a profile drawing with a vertical scale showing the lot to include:

Existing structures, property lines, setbacks, lot size, ROWs;

[3]

Land clearing or grading required for the installation and operation of the system;

[4]

The location of all equipment to be installed on site including utility connection point(s) and equipment.

[5]

Equipment, except for utility connections, shall comply with required setbacks.

Equipment specifications.

All proposed equipment or specifications must be included with the application. Such information can be supplied via manufacturer's specifications.

Emergency response plan.

Access to the site for emergency response shall be provided and detailed on the plan.

A narrative or manual for municipal shall be provided to the Rochester Fire Department detailing response guidance and disconnection locations necessary for fire response.

Solar collection systems requiring a conditional use permit shall meet base criteria conditions set by 275-21.3 of the Zoning Ordinance.

(f)

Solar collection systems requiring a special exception from the Zoning Board of Adjustment meet applicable criteria set § 275-22.3 of our Zoning Ordinance and meet provisions identified under the primary use section of this chapter as well as applicable site plan regulations.

(g)

All applicable state and federal permitting associated with the solar energy system must be obtained prior to building permit issuance. Copies of the permits or confirmation of the approvals must be submitted to the Planning Department.

(h)

All proposals under this chapter may be subject to special investigation and the review of documents under RSA 674:44-V.

Editor's Note: This ordinance redesignated former Subsections L through N as Subsections M through O.

Stable, commercial.

The minimum lot size required shall be three acres.

The side and rear setbacks for structures housing horses shall be 100 feet from any lot lines.

Any storage areas for manure shall be set back at least 200 feet from any lot lines. Manure must be handled according to best management practices.

Veterinary clinic.

Veterinary clinics shall set back 100 feet from any residential property, restaurant or lodging establishment.

All animals must be housed overnight in completely enclosed buildings.

The Planning Board may stipulate that appropriate sound mitigation devices be installed and that fences, walls, and/or vegetation be installed to screen the site where animals will be maintained out of doors.

Wireless communications facility.

[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]

Co-location/zoning district. Subject to a determination by the Zoning Board of Adjustment that the telecommunications equipment planned for the proposed site cannot be accommodated:

Within a zoning district where these facilities are permitted by right; nor

On any existing or approved antenna support structure in the City of Rochester; nor

On any prospective alternative tower structure in the City of Rochester for one of the following reasons:

Structural capacity. The planned equipment would exceed the structural capacity of the existing or approved antenna support structures, as documented by a qualified professional engineer, and the existing or approved tower cannot be reinforced, modified, or replaced to accommodate planned or equivalent equipment at a reasonable cost.

Interference. The planned equipment would cause interference materially impacting the usability of other existing or planned equipment at the antenna support structure as documented by a qualified professional engineer and the interference cannot be prevented at a reasonable cost.

[3]

Height constraints. Existing or approved antenna support structure within the required radius cannot accommodate the planned equipment at the necessary height as documented by a qualified professional engineer.

[4]

Other reasons. Any other substantial reason that precludes the co-location. The burden of proof is upon the applicant to demonstrate that all reasonable alternatives to the erection of a new structure have been fully explored.

Buffers.

In addition, for the purpose of buffering the proposed structure from neighboring properties and roads, the site proposed for the facility shall be surrounded by an area of dense tree growth, including a sufficient percentage of evergreen trees to partially screen the site in the winter, that extends continuously for a minimum distance equal to 1/2 the height of the proposed support structure.