City of Dover, NH Article IV Open Space Subdivisions

§ 157-19 Concept and purpose.

[Amended 7-5-1988; 4-25-2000]

A. An open space subdivision (OSS) represents a form of residential development where, instead of subdividing an entire tract of land into lots of conventional size and arrangement, a similar number of single-family housing units, duplexes in an R-12 Zone, may, at the discretion of the Planning Board, be arranged on the land in a more innovative fashion which better fits the topography and natural attributes of the site. The remaining land in the tract which has not been built upon shall be set aside for municipal use or integrated among the housing units and reserved for usable common open space. Said open space shall be held in a form of ownership that will prevent it from being further subdivided or developed.

B. The purpose for establishing this article is to promote a development pattern that creates areas of usable and accessible open space; provides land for municipal use; prevents disruption of natural topography and drainage systems; maintains the rural and open character of the undeveloped area of the City; protects historically significant buildings, resources, and/or landscapes; protects valuable wildlife areas; allows for attractive site design; and encourages a lesser and more practical utility and street network.

§ 157-20 Approval procedure.

[Amended 7-5-1988; 2-10-2004]

A. An open space subdivision with subdivision lots or cluster arrangements shall be subject to the granting of a major subdivision approval pursuant to the regulations contained herein. A plan for an open space subdivision with cluster arrangements shall depict, in addition to the required contents of a subdivision plat, the locations of all proposed building sites, roads, driveways, parking lots and other features determined by the Planning Board to be necessary for proper review of the plan.

B. In specific cases, the Planning Board may vary the provisions contained herein, provided the modifications are consistent with the concept and purpose stated in § 157-19 above.

§ 157-21 General requirements.

[Amended 7-5-1988; 3-19-1991; 4-25-2000; 2-11-2003; 2-10-2004; 8-26-2008; 3-23-2010]

A. Location.

(1) Any major subdivision within an R-40 District shall be required to adhere to the following procedures for said development.

(2) Any proposed development in an R-20 or R-12 District that meets the minimum lot size requirement for an open space subdivision shall be required to adhere to the following procedures for said development.

B. Permitted uses shall be as follows:

(1) All uses permitted in the zoning district within which the open space subdivision is located.

(2) Open space, private or public, providing for both passive as well as active recreational facilities.

C. Minimum project area permitted for an open space subdivision shall be as follows:

	Contiguous Acres Required
Zoning District	Residential Only (acres)	With Commercial (acres)
R-40	No minimum	50
R-20	15	50
R-12	5	20

(1) Projects not meeting the minimum acreage requirements of an open space subdivision shall follow these additional requirements:

(a) A preliminary public hearing shall be conducted by the Planning Board prior to an applicant's formal submittal application for major subdivision approval. Prior to this preliminary public hearing, the applicant shall submit two different design review plans for general discussion, one yield plan showing a subdivision plan based on conventional regulations and a second plan design as an open space subdivision. At said preliminary public hearing, the applicant shall be responsible for demonstrating that the characteristics of his/her plan warrant consideration for development as an open space subdivision.

[1] The disposition of the public hearing shall be executed as per the procedure established in § 157-12.

[2] Within 30 calendar days of the date of public hearing, the Planning Board shall render a determination as to whether the applicant can process his/her application as an open space subdivision or as a conventional subdivision.

(b) An impact statement shall be submitted which details the probable effects of the subdivision on the following aspects of concern to the City:

[1] Attendance at public schools;

[2] Increase in vehicular traffic;

[3] Changes in the number of legal residents;

[4] Increases in municipal costs;

[5] Load on public utilities or future demand for them;

[6] Public safety;

[7] Changes in tax revenue;

[8] Changes in surface drainage;

[9] Increased consumption of groundwater;

[10] Increased refuse disposal;

[11] Pollution of water or air;

[12] Land erosion or loss of tree cover;

[13] Disturbance to other aspects of the natural ecology;

[14] Blocking of views;

[15] Harmony with the character of surrounding development; and

[16] Location of utilities.

D. Density.

(1) Density allocation. The maximum number of dwelling units permitted in an open space subdivision shall be determined by a submitted yield plan. The resultant number shall not allow a higher density than that provided by a conventional subdivision on the same parcel. An open space subdivision may consist of the following:

(a) A subdivision of land into reduced sized individual house lots.

(b) Cluster subdivision. One parcel with individual detached single-family dwellings located in a cluster arrangement.

(2) Density bonus.

(a) If the proposed development is located in an R-40 or R-20 Zone and is greater than 50 acres, or is located within the R-12 Zone and is more than 20 acres, a nonresidential component shall be allowed, meeting the following the criteria:

[1] No more than 50% of the development site, including open space, shall be devoted to parking, streets, buildings, and accessory structures.

[2] Nonresidential uses allowed in the underlying district, as well as those listed below, shall be permitted as long as they are constructed to be compatible in scale and design with residential uses, be attractive and low-key (in terms of building design, signage, lighting, and treatment of parking), and have a strong pedestrian orientation with a building footprint of not to exceed 10,000 square feet.

[a] Neighborhood scale personal service establishments, such as convenience stores, craft store, drugstores, beauty shops, tailors, laundromats, and banking establishments.

[b] Professional offices.

[c] Medical care uses, including medical care office buildings.

[d] Adult day-care facilities.

[e] Sales office for the sale or rental of property.

[f] Restaurants without a drive-up window.

[g] Elderly assisted care may have a building footprint of not to exceed 20,000 square feet.

[3] Prohibited uses and designs. The following uses and designs are not permitted in an open space subdivision unless they are already allowed in the underlying zoning district under an existing permit or as existing nonconforming uses: commercial telecommunication towers/wireless communications facilities as a primary use, gravel pits, hospitals, or wholesaling.

[4] The commercial uses delineated above may be located in a flexible spatial environment, assuring compatibility with residential uses and with the overall development design, provided that nonresidential uses do not exceed 33% of the net tract area of the open space subdivision. These limitations herein are maximums and should not be construed as by right permitted levels of development.

[5] No building shall exceed four stories in height (except for cupolas, dormers, building towers, and similar elements).

E. No structures or septic systems will be allowed to be built in the following areas: areas with a slope greater than 20%; areas within conservation districts; all flood hazard areas, unless floodproofing standards can be met through construction practices; and undevelopable wetlands as defined in Chapter 170, Zoning.

F. Dimensional requirements.

Zoning District	Minimum Lot Size for Subdivision Lots (square feet)	Minimum Frontage for Subdivision Lots (feet)	Minimum Buffer Along Frontage1 (feet)
R-40	20,000	40	100
R-20	12,000	30	100
R-12	8,000	20	100

1	Does not apply to an existing house on the lot, if part of the total lot yield. [Amended 5-24-2016]

	Minimum Distance Around Individual Units in Clusters		Minimum Building Setbacks for Subdivision Lots
Zoning District	Street Sides of Units (feet)	Between Units (feet)	Abutting a Street (feet)	Abutting a Lot Line (feet)
R-40	20	30	20	20
R-20	15	25	15	15
R-12	10	20	10	10

(1) If a portion of a parcel of land is covered by a zoning district in which an open space subdivision is not permitted, this portion shall not be included in a proposed open space subdivision.

(2) If a parcel of land is covered by more than one of the R-40, R-20 or R-12 Zoning Districts, and more than 50% of the parcel lies in the more restrictive district, the more restrictive regulations shall apply to the entire parcel.

(3) Frontage requirements shall not apply to cluster subdivisions. Nevertheless, paved access suitable for emergency vehicles, and approved by the Planning Board, shall provide access from a City street or state highway to each of the units with the subdivision. All accessways shall be privately owned and comply with the private drive standards specified in Chapter 153, Site Review Regulations, of the Code of the City of Dover.

(4) Notwithstanding the dimensional requirements outlined above, structures or dwelling units in a proposed open space subdivision must maintain the following minimum buffer distances from existing structures, dwelling units and external boundaries:

Zoning District	Minimum Distance from Existing Structures or Dwelling Units (feet)	Minimum Distance from External Boundaries (feet)
R-40	100	50
R-20	75	40
R-12	50	30

(a) For the purposes of the external boundary buffers required above, the buffer areas shall be considered an undisturbed natural area for the purpose of shielding the development from abutting properties. The external boundary buffer shall be preserved or established to comply with the perimeter landscaping standards in § 157-35F.

[Amended 12-18-2012]

G. Project ownership. The subject land may be owned, leased or controlled either by a single person, a corporation or by a group of individuals or corporations. An approved open space subdivision shall be binding on the project land and owner(s) and shall be so indicated on each individual deed.

H. Additional considerations. In addition to the information required to be presented on the preliminary and final plat layout (see §§ 157-27 and 157-28), the following additional information shall be required:

(1) Dimensions and locations of all proposed common open spaces.

(2) The external dimensions of open space subdivision boundaries (see § 157-22).

(3) Appropriate documents defining the deed restrictions and other provisions under which all common open spaces will be established.

(4) A fiscal analysis demonstrating that the submitted yield plan is realistic shall be required of the applicant. At a minimum the following items shall be included:

(a) Potential road costs.

(b) Potential utility costs.

(c) Potential miscellaneous costs (to include the cost of moving existing structures).

I. Community leach (septic) systems. An open space subdivision (OSS) may include a community or common leach system for the disposal of the effluent from household septic tanks. Such a system shall be installed by the subdivider and shall be installed under the following conditions:

(1) Community leach systems (CLS) may only be used in those areas of the appropriate zones served by the public water system of the City of Dover.

(2) All CLS shall meet the design requirements of the State of New Hampshire Department of Environmental Services and this chapter.

[Amended 1-14-2020]

(a) Each structure shall have its own septic tank sized according to the requirements of the New Hampshire Department of Environmental Services. Access to the septic tank cover should be provided by risers as necessary and location shown on the as-built plan submitted to the Dover City Engineer as described in Subsection I(3) below.

(b) Leach fields shall be located on land held in common by the property owners to be used exclusively for wastewater disposal. Each area designated for wastewater disposal shall be large enough to accommodate the required leach field and associated fill as well as an alternate reserve leach field, should replacement of the original field become necessary. The leach field and reserve field must have suitable soil according to the New Hampshire Department of Environmental Services rules for sewage disposal system design.

(c) All piping connecting septic tanks to leach systems and other mechanical equipment such as pumps, valves, etc., shall meet the standards of the State of New Hampshire and the City of Dover as detailed in § 157-41. All such equipment used by more than one dwelling shall be placed in an easement which shall be deeded to the maintaining authority, and such authority shall have the right to access at any time for the purposes of maintaining the system. All construction under this article shall be explicitly subject to the provisions of Article V of this chapter.

(d) The developer and homeowners' association are required to provide each new resident in the development a copy of the New Hampshire Department of Environmental Services pamphlet "You and Your Septic System."

(3) Facility ownership. At the conclusion of the construction of all piping, equipment and leach fields, a complete set of as-built drawings of the systems will be filed with the City Engineer. The owners of the CLS shall also comply with the following requirement:

(a) Whether or not the developer has opted to establish a cooperative legal entity to own and manage the common space, such an entity shall be set up to own and manage the common leach system. The bylaws of such an entity shall be established in accordance with state law governing such organizations (RSA 479-A:1 to 479-A:23, inclusive, as amended) and shall include the provisions of Article IV, § 157-22E, Requirements of a homeowners' association, by substituting the words "common leach system" for "common open space" in those regulations.

(4) Facility maintenance requirements. The following requirements shall be made part of any homeowners' association agreement:

(a) The owner of the common leach system shall maintain a service contract with a licensed septic system service and installation contractor to perform the required maintenance. Such a contract shall detail the periodic maintenance to be performed on the distribution/collection system, including leach fields, distribution boxes, pumps, and collection pipes, etc. The service contract shall provide for an annual report to the City Engineer by the licensed septic system installer detailing the condition of the system and any repairs made that year or anticipated at the time of the report. A copy of the service contract shall be delivered to the City Engineer for review at least 30 days before it goes into force.

(b) The owner of the common leach system shall collect from the users of the system an annual fee equal to the cost of repairs and an amount sufficient to establish a reasonable cost of replacement reserve. The fee should be assessed annually based upon the previous year's experience and the forthcoming service contract amount.

(c) The maintaining authority shall keep a record of each individual septic tank, showing its location and the frequency of its pumping. As a guide to maintenance, each tank should be pumped at least once in every five-year period and not more frequently than every two years.

(d) No structure shall be built on a leach field lot.

§ 157-22 Common open space.

[Amended 7-5-1988; 4-25-2000]

A. General common open space shall be set aside for the use and benefit of the residents in an open space subdivision or dedicated to a public or nonprofit organization. Generally, the open space shall be usable for recreation and integrated into the layout and design of the subdivision. The location and configuration of the open space shall be at the discretion of the Planning Board.

B. External boundaries. A buffer zone of 100 feet shall be provided along the perimeter of the subject tract that fronts existing public roadways, and a buffer zone equal to the external boundaries required by § 157-21F(4) shall be provided along the perimeter of the subject tract that abuts all adjacent parcels. If said perimeter is predominantly open land, it shall be suitably landscaped at the discretion of the Planning Board. Should the Planning Board find that the unique topography and other site conditions warrant a certain degree of flexibility in the extent of the required buffer zone, a waiver of the affected portion of said buffer will be taken under consideration.

[Amended 12-18-2012]

C. Open space requirements.

(1) The common open space for an open space subdivision that contains subdivision lots shall be depicted on the subdivision plat as bounded by property lines and as being exclusive of house lots; streets, driveways and parking lots; stormwater collection ponds; land area dedicated to septic systems; and easements and rights-of-way for stormwater drainage ways, streets or utilities. The common open space for an open space subdivision that contains dwelling units in cluster arrangements on a single parcel shall be depicted on the subdivision plat as land area exclusive of dwelling units and accessory structures; streets, driveways and parking lots; areas required for minimum buffers around dwelling units; land area required for septic systems; area covered by easements or rights-of-way for stormwater drainage systems, streets or utilities; and stormwater collection ponds. The legal and spatial disposition of such open space is at the sole discretion of the Planning Board.

(2) The area of the open space shall equal or exceed the total allowed reduction in the lot sizes within the open space subdivision and shall be permanently dedicated as open space or for municipal use, as agreed upon. A minimum of 50% of the total open space land must be usable uplands and reasonably accessible to all property owners in the project.

(3) The open space shall be deeded to the City of Dover for municipal use or deeded to a nonprofit organization, or a deed restriction or easement shall be placed upon all common open space so that all said open space remains open space in perpetuity and shall never be developed or further subdivided. Acceptance of ownership of deeded open space is at the discretion of the City or nonprofit organization.

(4) Said deed restrictions and documents shall be placed on file with the City Clerk upon receipt of Planning Board subdivision approval and duly recorded at the Strafford County Registry of Deeds, where appropriate.

(5) The required common open space shall be owned and maintained by the developer until it is owned in one or more of the following ways:

(a) By the City of Dover, subject to acceptance by the City.

(b) By a private, nonprofit organization (such as the Nature Conservancy or Audubon Society) which has as its purpose the preservation of open space through ownership and control; provided, however, that the residents within the open space subdivision have access to the common open space for appropriate recreational uses.

(c) By a private, nonprofit corporation, association or other nonprofit legal entity, such as homeowners' association, established by the applicant for the benefit and enjoyment of the residents of the subdivision and over which said residents have control.

(6) No privately owned recreation structures shall be built in the open common space without the approval of the Planning Board.

(7) Current use limitation. The common land areas, open space areas and natural areas in an approved development are considered to be a part of the residential use of such development and shall not be considered to be open space land, farmland, wetlands, recreation land, floodplain or wild land within the meaning of RSA 79-A except where such consists of actively operated farmland.

D. In the event that an open space subdivision is to be owned by a cooperative legal entity, all common open space shall be governed in accordance with the requirements of the RSA 479-A:1 to 479-A:23, inclusive, as amended.

[Amended 2-26-2019]

E. Requirements of a homeowners' association.

(1) The financial and administrative obligations for future maintenance of common open space and other common facilities shall be clearly stated, adequate and enforceable by the City, at the association's expense, in the event of negligence.

(2) In the event that the homeowners' association established to own and maintain common open space or any successor organization shall fail to maintain the common open space/facilities in a reasonable order and condition, the Planning Board may serve written notice upon such organization and shall demand that any deficiencies of maintenance be cured in 30 days of receipt of said notice. In addition, a trustee shall be designated by the homeowners' association to ensure that proper care of said common open space is continued. The trustee's responsibilities shall include, but not be limited to, passive and active recreational areas, retention ponds, drainage easements and common septic disposal systems.

(3) In the event that the maintenance deficiencies have not been resolved within said prescribed time limits, the cost of maintenance by another party, other than the City of Dover, shall become a tax lien on the properties within the subdivision. Entry and maintenance of said common open space shall not exceed a period of one year.

(4) Before the expiration of said year, the Planning Board shall, upon its initiative or upon the request of the organization heretofore responsible for the maintenance of the common open space, call a public hearing upon 15 days' notice to such organization or to the residents and owners of the development, at which hearing such organization or the residents or owners of the development shall show cause why such maintenance by the third party shall not, at the election of the City, continue for a succeeding year.

(a) If the Planning Board determines that said organization is able to maintain said common open space in a reasonable condition, the City shall cease to have such space maintained at the end of the prescribed time limit.

(b) If the Planning Board determines that such organization is not able to maintain said common open space in a reasonable condition, the City may continue to have such land maintained by a third party for a succeeding year, subject to a similar hearing and determination in each year thereafter. The decision of the Planning Board in each such case shall constitute the final administrative decision subject to judicial review.

(5) The cost of such maintenance shall be assessed proportionately against the properties within the development that have a right of enjoyment of the common open space and shall become a tax lien on said properties. The City, at the time the third party enters upon said common open space for the purpose of maintenance, shall file a notice of such lien in the office of the City Assessor and the Registrar of Deeds for Strafford County upon the properties affected by such lien within the development, and the same shall be discharged by the City upon payment as with other liens.