Town of Rye, NH Article V Special Regulations

§ 190-5.0 Off-street parking and loading.

[Amended 1992; 7-13-2021 by Art. 3; 3-14-2023 by Art. 3 (Am 6); 3-11-2025 by Art. 3]

A. Size of parking spaces. All parking spaces required herein shall have a minimum size of 9 feet in width by 18 feet in length.

B. Minimum number of parking spaces. The number of parking spaces required by the Table of Minimum Off-Street Parking Requirements shall be provided for: any new building, structure or land use; any existing dwelling enlarged by more than 25%; any existing dwelling or other building in which new dwelling units are built; any conversion of seasonal dwelling units to year-round occupancy; condominium conversions; and any expansion or change of use of a nonresidential or multifamily building, structure, site or use.

(1) All required parking shall be provided on the same lot or on abutting lots under common ownership. Parking spaces shall have adequate and safe driveways and means of circulation and shall have access/egress to the street on which the lot has frontage without crossing other lots.

(2) Parking requirements for uses not listed in the Table of Minimum Off-Street Parking Requirements shall be based upon the requirements for the most similar listed use in the table.

(3) For mixed uses the parking requirement shall be determined by the sum of the requirements for component uses. Examples: shopping centers, office parks with general and medical offices, auto sales and service establishments, etc.

(4) The Planning Board may require additional parking during site plan review if it determines that application of the Table of Minimum Off-Street Parking Requirements will not provide adequate off-street parking. However, the Planning Board shall not allow fewer parking spaces than required by the table.

Table of Minimum Off-Street Parking Requirements
Type of Use	Minimum Number of Required Parking Spaces
Residential
Single-family dwelling	2
Other dwellings	2 per dwelling unit
Dwelling units in mixed-use structure	1.5 per dwelling unit
Dwelling units in multi-family dwelling units of 10 units or more	1.5 per dwelling unit
Accessory dwelling units	1 per accessory dwelling unit
Elderly housing	0.5 per dwelling unit
Group residence	0.33 per resident
Mobile home	2 per unit
Home occupation	1 per 100 square feet business use but no fewer than 1, plus 1 per every employee
Institutional
Hospital, nursing home, sanitarium	1 per 2 beds
Church, places of public assembly, theater, auditorium	1 per every 5 seats or 1 per each 100 square feet (if no seats)
Libraries, museums, community centers	1 per every 400 square feet gross floor area
Membership club	1 per every 200 square feet gross floor area
Schools
Elementary, junior high	4 per classroom
Senior high	2 per classroom plus 1 per 5 students
Day care, pre-school	1 per employee plus 1 per 6 children in maximum session
Commercial
Motel, hotel	1 per rental unit plus 1 per employee on maximum shift plus restaurant component if applicable
Lodging house, tourist home, bed-and-breakfast, tourist camp	2 plus 1 per rental unit
Restaurant (excluding fast-food establishments)	1 per 3 seats plus 1 per employee on maximum shift plus 1 per 2 bar stools
Restaurant (fast-food), including pizza restaurants and stationary food trucks	1 per 2 seats plus 1 per each employee on maximum shift; or 1 per 50 square feet of gross floor area, whichever is greater
Office (medical or dental)	1 per 100 square feet gross floor area or 5 per doctor, whichever is greater
Office (all other and personal service)	1 per 250 square feet or 1.5 per employee or staff member, whichever is greater
Retail	1 per 200 square feet of gross sales area plus 1 per 600 square feet of storage area plus restaurant component if applicable
Furniture store, appliance store, carpet sales	1 per 600 square feet gross floor area
Personal service	1 per 250 square feet gross floor area
Bank	1 per 300 square feet gross floor area
Automobile sales	1 per 300 square feet gross floor area
Automobile service	4 per service bay
Bowling alley	4 per lane
Health club, fitness center, racquet club	1 per 3 persons' capacity or 1 per 400 square feet gross floor area, whichever is greater, plus restaurant or service component, if applicable
Outdoor display area or outdoor storage	1 per 1,000 square feet gross area
Funeral home	1 per 100 square feet of assembly areas and viewing rooms but no fewer than 10
Warehouse, truck terminal	1 per employee on maximum shift or 1 per 1,000 square feet gross floor area, whichever is greater
Manufacturing	1 per employee on maximum shift or 1 per 600 square feet of gross floor area, whichever is greater
Recreation
Bowling alley	4 per lane
Golf driving range	1 per tee plus 1 per employee
Miniature golf	1.5 per hole
Golf course	4 per hole and 50% of accessory use component if applicable
Swimming pools	1 per 75 square feet water area
Skating rink	1 per 300 square feet rink area
Marina	1.5 per berth (slip); at least 10% of spaces large enough to accommodate cars and trailers
Racquet courts	4 per court
Community center, recreation center, amusement center	1 per 250 square feet gross floor area or 1 per 4 patrons at maximum capacity (whichever is greater)
Other outdoor, recreational, or amusement facilities	1 per 4 patrons at capacity

¹ For the purposes of determining the number of seats, a picnic table shall constitute four seats.

² "Personal services," as used in this section, shall include, but shall not be limited to, hair salons, barbershops, masseuses, spas, etc.

C. Location of parking spaces. No off-street parking shall be located within the required front yard area nor within 10 feet of any lot line in any district.

D. Off-street loading. In addition to the required off-street parking spaces, uses shall be provided with adequate off-street loading spaces.

§ 190-5.1 Signs and outdoor advertising.

[Amended 1993; 1996; 1997; 2008; 2012; 3-10-2015; 3-10-2020 by Art. 3; 3-14-2023 by Art. 3 (Am 6); 3-11-2025 by Art. 3]

A. Permitted size of signs. There shall be permitted in the following zones no sign larger than:

(1) In any Residence District, no signs larger than six square feet.

(2) In any Business District, no signs larger than 20 square feet.

(3) In any Commercial District, no signs larger than 32 square feet.

(4) In any Public Recreation District, no signs at all other than municipal or state signs no larger than 20 square feet.

B. Number of signs per lot. Multiple signs are permitted upon a lot so long as the aggregate square footage of the signs does not exceed:

(1) 24 square feet in any Residence District;

(2) 60 square feet in any Business District; and

(3) 96 square feet in any Commercial District.

C. Special exception to size limitations. The Board of Adjustment may allow in any zone, as a special exception, a deviation from the size limitations set forth in § 190-5.1A or B upon a determination that:

(1) The location of any sign will not adversely impact vehicular or pedestrian safety;

(2) The grant of a special exception would not result in a temporary sign, as that term is defined by § 190-11.1, to exceed 48 square feet;

(3) The sign's location meets all applicable front, side, and rear setbacks applicable to the District in which the property is located;

(4) Satisfies all other provisions of § 190-5.1, except those related to size; and

(5) All other criteria set forth in § 190-7.1A(3)(a) are satisfied.

D. Illumination criteria. Moving, fluttering, blinking or flashing lights or signs are prohibited. Lighting shall not glare on abutting properties or on public streets. No sign shall be illuminated by other than light-emitting diode (LED), incandescent or fluorescent light. No illuminated sign shall outline any part of a building such as a gable, roof, sidewalk or corner. Wherever sign area is referred to in this chapter, it shall mean the area of one side of a not more than two-sided sign, or 1/2 of the total area of a sign of not more than two sides. Temporary (nonpermanent) holiday lighting is excluded from the above restrictions.

E. Construction requirements. Every sign shall be constructed of a durable material and shall be maintained in good condition and repair at all times. Temporary signs shall be allowed, provided they are not displayed for the shorter of either:

(1) 120 days; or

(2) Such time as the temporary sign starts to show significant wear or substantial deterioration, becomes illegible, or is damaged.

F. Off-premises signs.

(1) In all zoning districts, only the following off-premises signs shall be permitted:

(a) Such signs within the Town's right-of-way as may be allowed by the Select Board, in accordance with any such regulations as may be adopted by the Select Board, or such signs within any state-owned rights-of-way, as may be permitted by the State of New Hampshire. See RSA 236:84.

(2) All other off-premises signs, including billboards, are prohibited.

G. Historic District. For signs within the Historic District, see § 190-3.3E(7), the provisions of which shall control in the event of any conflict with the terms of § 190-5.1.

H. Prohibited signs.

(1) No sign shall display material that would constitute an obscenity. For the purpose of this prohibition, obscenity shall be deemed to exist if, the average person, applying contemporary community standards, would find the content, as a whole, appeals to sexual interests, the material depicts or describes in a patently offensive manner sexual conduct, and the material, as a whole, lacks serious literary, artistic, political, or scientific value.

(2) No sign shall advocate for or seek to incite or produce a riot, seditious activities, or other imminent lawless action where that sign is designed to incite or may cause such action.

(3) No sign shall depict any content prohibited under New Hampshire or federal law.

§ 190-5.2 Earth movements and excavations.

[Amended 3-10-2020 by Art. 3; 3-14-2023 by Art. 3 (Am 6)]

A. Earth excavation shall not be a permitted use in any zone in the Town, except as expressly permitted herein.

B. The following types of earth excavations are permitted:

(1) Excavation that is exclusively incidental to the construction or alteration of a building or structure or the construction or alteration of a parking lot or way, including a driveway on a portion of the premises where the removal occurs; provided, however, that no such excavation shall be commenced without a permit under this chapter unless all state and local permits required for the construction or alteration of the building, structure, parking lot, or way have been issued.

(2) Excavation that is incidental to agricultural or silvicultural activities, normal landscaping, or minor topographical adjustment.

C. If earth excavation is anticipated as part of the construction or alteration of a building, structure, parking lot, or way pursuant to § 190-5.2C(1), the Building Inspector (or the Public Works Director with regard to driveway permits), reserves the right to require the applicant to:

(1) Submit forms and plans in accordance with § 35-5 of the Rye Building Code.

(2) Submit a bond with the application in an amount to be determined by the Select Board as adequate for assuring the removal of any temporary building related to the earth excavation or use.

D. Any such determination by the Building Inspector may be appealed to the Board of Adjustment in accordance with § 190-7.2.

E. All earth excavations permitted under this § 190-5.2 shall, in addition to all other applicable provisions of this chapter, Chapter 35, or Chapter 202, or any other applicable provision of the Town Code, be subject to the minimum and express operational standards set forth in RSA 155-E:4-a, all minimum and express reclamation standards set forth in RSA 155-E:5.

F. Turf farms. No land shall be stripped of its turf or topsoil or made into a water trap of any sort except pursuant to a special exception and with such bond from the applicant as the Select Board shall deem sufficient to assure that the applicant refills, replants or adequately regrades or landscapes such land to conform with the lands surrounding the same.

§ 190-5.3 Condominium conversions of existing dwelling units.

[Amended 1982; 3-14-2006; 2007]

A. Permitted by special exception. In any district, conversion of existing dwelling units to condominium ownership shall be permitted as a special exception granted by the Board of Adjustment only if all the provisions herein are met. Such conversion may be further subject to the approval of the Planning Board in accordance with Chapter 202, Land Development Regulations.

[Amended 3-14-2023 by Art. 3 (Am 6)]

B. Plan requirements. A complete set of site plans and floor plans, as well as a complete set of all condominium documents, must be filed with the Board of Adjustment upon application for the special exception.

(1) The plans shall show the location of all utilities on the site and shall indicate the location of all water connections and locations where the shutoff valve will be located for each particular unit in the case of a condominium project containing more than one unit. The plans shall indicate whether or not additional meters other than those existing or additional lines from the street will be required as a result of the condominium conversion.

(2) In the case of seasonal properties, the condominium declaration and other documents which are recorded in the Registry of Deeds shall indicate on their face that the property may only be used for seasonal purposes and the months when the property may be used shall be indicated in the documents.

C. Criteria for special exceptions.

(1) The dwelling units which are subject to the request for condominium conversion must, at the time of the request for condominium conversion, exist as legal dwelling units pursuant to the ordinances of the Town of Rye. The burden shall be on the petitioner to demonstrate that the units sought to be converted have legal status.

(2) Each dwelling unit of the condominium shall contain a minimum of 600 square feet of gross living area.

[Amended 3-14-2023 by Art. 3 (Am 6)]

(3) The off-street parking requirements of the Town of Rye existing as of the date of the request for condominium conversion must be met.

(4) The proposed conversion of the existing dwelling unit to condominium ownership shall not adversely affect the values of surrounding properties.

(5) The proposed conversion to condominium ownership must not be injurious or detrimental to the neighborhood or Town.

(6) The septic system and/or private sewer system standards of the New Hampshire Department of Environmental Services and the Town of Rye existing as of the date of the request for condominium conversion must be met or exceeded by all systems used by the dwelling units associated with the condominium conversion, and a certificate to that effect must be filed with the Board of Adjustment, based on review of Town records by the Building Inspector or an on-site inspection of systems and soil conditions by a professional engineer.

[Amended 3-11-2014]

(7) For condominium conversions involving detached dwellings, if the amount of land designated as common area is less than 90% of the area of the parcel not designated for buildings, driveways, parking areas, and individual unit owners' vehicles, each limited common area assigned to a detached dwelling shall meet the minimum lot area and frontage requirements of this chapter.

[Amended 3-14-2023 by Art. 3 (Am 6)]

D. Tourist accommodation units. It is hereby determined that tourist accommodation and transient units such as tourist cabins, hotel and motel units and lodging houses (i.e., "tourist units") are different land uses than dwelling units and have different impacts on the land and neighborhood than dwelling units, whether such dwelling units are seasonal or year round.

[Amended 3-14-2023 by Art. 3 (Am 6)]

(1) Tourist units are sporadically occupied during all but the peak 10 weeks of the summer season. Even during that ten-week period, occupancy typically depends on favorable weather. Due to the lower occupancy levels, tourist units have less impact than dwelling units on:

(a) Water consumption and overall septage loading of the land.

(b) Automobile usage and the traffic congestion, air pollution and consumption of fuel resulting therefrom.

(c) Solid waste generation and the impacts on waste disposal facilities and services.

(d) Demand for fire protection and emergency medical services.

(2) Tourist units require fewer parking spaces than dwelling units. Therefore, the impact on the land from erosion and pollution due to surface water runoff is less.

(3) Tourist units have less impact than dwelling units on municipal facilities such as the library, schools, recreation facilities and permitted beach parking areas.

(4) Tourist accommodation enterprises have always had a greater allowed density under this chapter than dwelling units. This chapter has always recognized that more land is required to support a dwelling unit than a tourist unit.

(5) In this chapter, tourist units have always been identified as specific business uses permitted only in the Business and Commercial Districts. Tourist units are not permitted in the Single and General Residence Districts.

(6) Tourist units have always been specially permitted business uses under § 190-5.4 of this chapter.

(7) Tourist units are regulated as "Trade and Commerce" under Title XXXI, RSA 353, Hotels, Tourist Cabins, Etc.

(8) Therefore, requests to convert tourist accommodations to permanent occupancy shall not be permitted under this § 190-5.3.

E. Accessory apartments. An accessory apartment approved as a conditional use permit pursuant to § 190-5.6 of this chapter is required by § 190-5.6 to be a subordinate rental unit. Thus, an approved accessory apartment may not be converted to an ownership unit under the provisions of this section.

[Amended 3-14-2023 by Art. 3 (Am 6)]

F. "Grandfathered" in-law apartments.

[Amended 3-14-2023 by Art. 3 (Am 6)]

(1) In 1998 the enactment of § 190-5.6, providing for accessory apartments, revoked and replaced Section 202.7 of the Zoning Ordinance, which had allowed a property owner to make interior changes to existing buildings or to construct additions for residential use by members of the owner's family (i.e., so-called "mother-in-law apartments").

§ 190-5.3.1 Condominium conversion of existing commercial spaces.

[Added 2007]

A. Permitted by conditional use permit. In any district, conversion of existing commercial spaces within commercial buildings shall be permitted as a conditional use permit granted by the Planning Board, only if all of the provisions herein are met.

B. Plan requirements. A complete set of the site plans required by Chapter 202, Land Development Regulations, and a complete set of all condominium documents and floor plans shall be filed with the Planning Board. The plans and documents shall meet the requirements of § 190-5.3B of this chapter.

C. Public hearing. The Planning Board shall hold a public hearing on all applications for conditional use permits with notice as required by Chapter 202, Land Development Regulations. The hearing may be combined with any hearing required for site plan and/or subdivision approval.

D. Criteria for conditional use permit. All applications for a conditional use permit shall comply with the following requirements. The applicant for a conditional use permit has the burden of establishing that each of the criteria are met. Prior to approving an application for a conditional use permit, the Planning Board shall make findings on the record that each of the criteria below is met:

[Amended 3-14-2023 by Art. 3 (Am 6)]

(1) The building which is the subject of the request for condominium conversion must, as of the date of the application for condominium conversion, exist as a legal commercial building pursuant to the ordinances of the Town of Rye.

(2) Each unit of the condominium shall contain a minimum of 600 square feet of floor area. Adjacent existing commercial spaces within a building may be combined and renovated to meet this requirement.

(3) The off-street parking requirements of this chapter as of the date of the application for condominium conversion must be met.

(4) The proposed conversion to condominium ownership shall not adversely affect the values of surrounding properties.

(5) The proposed conversion to condominium ownership shall not be injurious or detrimental to the neighborhood or Town.

(6) The septic system and/or private sewer system standards of the Town and of the New Hampshire Department of Environmental Services existing as of the date of the application for condominium conversions shall be met or exceeded by all units and buildings associated with the condominium conversion. A certificate to that effect must be filed with the Planning Board based on a review of Town and state records by the Building Inspector or an on-site inspection of systems and soil conditions by a professional engineer.

(7) For condominium conversions involving detached buildings, if the amount of land designated as common area is less than 90% of the area of the parcel not designated for buildings, driveways, parking areas, and individual unit owners' vehicles, each limited common area assigned to a detached building shall meet the minimum lot area and frontage requirements of this chapter.

(8) The proposed conversion to condominium ownership shall not be injurious or detrimental to the health, safety or general welfare of the owners or occupants of the units, buildings or sites which are part of the proposal.

(9) Appeal. This is an innovative zoning provision adopted pursuant to RSA 674:21. Appeals of decisions on applications for a conditional use permit may be filed with the Rockingham County Superior Court or the Housing Appeals Board within 30 days of the date of decision.

§ 190-5.4 Tourist camps, motels, hotels and lodging houses.

A. General. No unit, motel or cabin shall be permitted on any site within a Single Residence District or General Residence District and no site for use by tents or recreational trailers shall be permitted in any district except as provided in § 190-4.0H.

B. Lot area for tourist camps. No tourist camp shall be established on any premises of less than 44,000 square feet and there shall be no more than 10 units per 44,000 square feet of land.

C. Land area per unit for tourist camps. No tourist camp unit shall contain less than 2,200 square feet of land. No tourist camp unit shall be permitted to accommodate more than one overnight cabin or housekeeping cabin.

D. Permits. It shall be unlawful for any person to establish, or maintain, or to permit to be established or maintained upon any property owned or controlled by him, a tourist camp, motel, hotel or lodging house in the Town of Rye, New Hampshire, unless there exists a valid permit therefor granted by the Select Board and existing in compliance with the provisions of this chapter. The application for such a permit shall be accompanied by plans of the proposed or existing tourist camp, motel, hotel or lodging house, showing the location of all buildings, driveways, toilet facilities, baths, laundry facilities, slop sinks, and other improvements and such permit may be granted to anyone meeting the requirements as outlined. A minimum annual permit fee of $10 per unit of each tourist camp, motel, hotel or lodging house shall be paid before such permit shall be issued. Such permit is in addition to, and shall in no event be deemed a substitute for, the requirements for a building permit and site plan review, and construction of any such tourist camp, motel, hotel or lodging house must in all such aspects comply with the provisions of this chapter applicable.

[Amended 3-14-2023 by Art. 3 (Am 6)]

E. Plumbing and sanitary requirements. All tourist camp, hotel or motel units shall be provided with a minimum of one lavatory, one toilet, and one bathtub or shower for each such unit. In addition, there shall be provided a minimum of 500 gallons in septic tank capacity, with a suitable septic drainage field, for each such unit. There shall also be provided suitable laundry facilities suitably screened from public view for each 10 units, or any fraction thereof. All plumbing and sanitary facilities must conform to both Town ordinances and state laws.

[Amended 3-10-2020 by Art. 3]

F. Garbage. The management shall provide not less than one tightly covered can of not less than 20 gallons' capacity for each and every tourist camp and motel unit. In the alternative, hotels and motels may provide a trash receptacle smaller than 20 gallons' capacity, provided the hotel and/or motel offers and provides for the daily pick-up and disposal of garbage from individual units as part of regular "turn down" service. Garbage and refuse so collected shall be deposited not less than twice weekly by the management in such garbage disposal area as the Town shall designate for this purpose.

[Amended 3-14-2023 by Art. 3 (Am 6)]

G. Lighting. Every tourist camp, motel, hotel or lodging house shall have adequate exterior and interior lighting to assure safe access to and from, and use of, the premises by clientele as well as by Town police and firemen, as the circumstances may require, all of which lighting is to be provided by and at the expense of the owner or management, or both.

H. Accommodations. No accommodation at any tourist camp, motel, hotel or lodging house shall be occupied by more persons than are permitted by sound public health practices. Occupancy limits shall be established by the Planning Board in consultation with the Fire Chief. In no event shall any such temporary dwelling unit provide less than 60 square feet per adult person and 50 square feet per child.

[Amended 3-14-2023 by Art. 3 (Am 6)]

I. Limitation of residence. No unit shall be occupied in any month other than from May 15 through October 15, excepting the owner or proprietor thereof and bona fide employees, unless approved for year-round occupancy by the Building Inspector, who shall ascertain that:

(1) There is sufficient parking under winter conditions;

(2) There is sufficient leach field capacity;

(3) There is an adequate and safe heating system; and

(4) No occupant other than the owner, his immediate family, or bona fide employees shall occupy a unit more than five months in any one year and no more than 90 consecutive days.

[Amended 3-14-2023 by Art. 3 (Am 6)]

J. Record of guests. The manager of every tourist camp, motel, hotel or lodging house shall require all persons using the same to register his or her name, home address, and car license number.

[Amended 3-8-2016]

K. Enforcement. The Select Board of the Town of Rye, New Hampshire, shall have the power to promulgate any additional rules and regulations they deem necessary for the enforcement of the provisions of this section.

§ 190-5.5 Wireless telecommunications facilities.

[Added March 1999; amended 2003; 2004; 2009; March 2011; 3-11-2014; 3-12-2019 by Art. 3; 3-10-2020 by Art. 3; 3-14-2023 by Art. 3 (Am 6); 3-11-2025 by Art. 3]

A. Definitions. As used in this section, the following terms shall have the meanings indicated:

ANTENNA

Apparatus designed to emit and/or receive radio frequency energy.

BASE STATION

A structure or equipment at a fixed location that enables FCC-licensed or authorized wireless communications between user equipment and a communications network. The term does not encompass a tower as defined herein or any equipment associated with a tower.

(1) The term includes, but is not limited to, equipment associated with wireless communications services such as private, broadcast, and public safety services, as well as unlicensed and unregulated wireless services and fixed wireless services such as microwave backhaul.

(2) The term includes, but is not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, equipment cabinets, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including distributed antenna systems and small-cell networks).

(3) The term includes any structure other than a tower that, at the time the application is filed, already supports or houses equipment described above that has been reviewed and approved under the applicable zoning process, even if the structure was not built for the sole or primary purpose of providing such support. (Note: This part of a base station is referred to as a base station structure in this section.)

(4) The term does not include any structure that, at the time the application is filed, does not support or house equipment described in Subsections (1) and (2) of this definition. (FCC 14-153, 47 CFR 1.40001)

COLLOCATION

(1) The placement or installation of new PWSFs on existing towers, structures or mounts, including electrical transmission towers and water towers, as well as existing buildings and other structures capable of structurally supporting the attachment of PWSFs in compliance with applicable codes. "Collocation" does not include a substantial modification. (RSA 12-K:2, X)

(2) In the context of an eligible facilities request (for modification), the following FCC 14-153 definition shall supersede the above: Collocation: The mounting or installation of transmission equipment on an eligible facility for the purpose of transmitting and/or receiving radio frequency signals for communications purposes. (FCC 14-153, 47 CFR 1.40001)

COLLOCATION APPLICATION

A request submitted by an applicant to the Building Inspector for collocation on a tower or mount. (RSA 12-K:2, XI)

DISTRIBUTED ANTENNA SYSTEMS (DAS)

Also called small-cell networks, wireless base station systems that typically mount low-profile antennas and related equipment on utility poles, lampposts and other surfaces relatively close to the ground to provide coverage to relatively small areas. The FCC collectively calls these "small wireless facilities."

ELIGIBLE FACILITIES REQUEST

Any request for modification of an existing tower or base station that is not a substantial modification to such tower or base station and involves:

(1) Collocation of new transmission equipment;

(2) Removal of transmission equipment; or

(3) Replacement of transmission equipment. (FCC 14-153, 47 CFR 1.40001)

ELIGIBLE FACILITY

Any tower or base station, provided that it is existing at the time the application is filed. (FCC 14-153, 47 CFR 1.40001)

EQUIPMENT COMPOUND

An area surrounding or near the base of a tower or mount supporting a WTCF, and encompassing all equipment shelters, cabinets, generators, and appurtenances primarily associated with the WTCF.

EXISTING (WITH RESPECT TO TOWERS AND MOUNTS)

A constructed tower or base station is existing for purposes of this section if it has been reviewed and approved under the applicable zoning or siting process, or under another state or local regulatory review process, provided that a tower that has not been reviewed and approved because it was not in a zoned area when it was built, but was lawfully constructed, is existing for purposes of this definition. (FCC 14-153, 47 CFR 1.40001)

FAA

The Federal Aviation Administration.

FCC

The Federal Communications Commission.

HEIGHT

The height above ground level from the natural grade of a site to the highest point of a tower. (RSA 12-K:2, XVII)

HEIGHT, OVERALL

The height above ground level from the natural grade of a site to the highest point above a structure, including any attachments or appurtenances thereon.

MODIFICATION

The replacement or alteration of an existing PWSF within a previously approved equipment compound or upon a previously approved mount. Routine maintenance of an approved PWSF shall not be considered a modification. (RSA 12-K:2, XVIII)

MODIFICATION APPLICATION

A request submitted by an applicant to an authority for modification of a PWSF. (RSA 12-K:2, XIX) (Certain limitations apply; see definitions of "collocation" and "substantial modification," which preclude substantial modifications from collocation and from modification.)

MOUNT

The structure or surface upon which antennas are mounted and includes roof-mounted, side-mounted, ground-mounted, and structure-mounted antennas on an existing building, as well as an electrical transmission tower and water tower, and excluding utility poles. (RSA 12-K:2, XX)

PERSONAL WIRELESS SERVICE FACILITY (PWSF)

Any PWSF as defined in the federal Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7)(C)(ii), including facilities used or to be used by a licensed provider of personal wireless services. A PWSF includes the set of equipment and network components, exclusive of the underlying tower or mount, including, but not limited to, antennas, accessory equipment, transmitters, receivers, base stations, power supplies, cabling, and associated equipment necessary to provide personal wireless services. (RSA 12-K:2, XXII)

SITE SHARING

The use of a tower or base station structure by more than one PWSF.

SUBSTANTIAL MODIFICATION

(1) A substantial change as defined by the FCC: Modification to an eligible facility that substantially changes the physical dimensions of an eligible facility, if it meets any of the following criteria:

(a) For towers other than towers in the public rights-of-way, it increases the height of the tower by more than 10% or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed 20 feet, whichever is greater; for other eligible facilities, it increases the height of the structure by more than 10% or more than 10 feet, whichever is greater. Changes in height should be measured from the original tower height in cases where deployments are or will be separated horizontally, such as on building rooftops; in other circumstances, changes in height should be measured from the dimensions of the tower or base station, inclusive of originally approved appurtenances and any modifications that were approved prior to the passage of the Spectrum Act;[1]

(b) For towers other than towers in the public rights-of-way, it involves adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than 20 feet, or more than the width of the tower structure at the level of the appurtenance, whichever is greater; for other eligible facilities, it involves adding an appurtenance to the body of the structure that would protrude from the edge of the structure by more than six feet;

(c) For any eligible facility, it involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four cabinets; or, for towers in the public rights-of-way and base stations, it involves installation of any new equipment cabinets on the ground if there are no preexisting ground cabinets associated with the structure, or else involves installation of ground cabinets that are more than 10% larger in height or overall volume than any other ground cabinets associated with the structure;

(d) It entails any excavation or deployment outside the current site;

(e) It would defeat the concealment elements of the eligible facility; or

(f) It does not comply with conditions associated with the siting approval of the construction or modification of the eligible facility or base station equipment, provided however that this limitation does not apply to any modification that is noncompliant only in a manner that would not exceed the thresholds identified above. (FCC 14-153, 47 CFR 1.40001)

(2) To the extent a proposed collocation/modification is controlled by the New Hampshire definition, the New Hampshire definition under RSA 12-K shall apply as follows: "Substantial modification" means the mounting of a proposed PWSF on a tower or mount which, as a result of single or successive modification applications:

(a) Increases or results in the increase of the permitted vertical height of a tower, or the existing vertical height of a mount, by either more than 10% or the height of one additional antenna array with separation from the nearest existing antenna not to exceed 20 feet, whichever is greater; or

(b) Involves adding an appurtenance to the body of a tower or mount that protrudes horizontally from the edge of the tower or mount more than 20 feet, or more than the width of the tower or mount at the level of the appurtenance, whichever is greater, except where necessary to shelter the antenna from inclement weather or to connect the antenna to the tower or mount via cable; or

(c) Increases or results in the increase of the permitted square footage of the existing equipment compound by more than 2,500 square feet; or

(d) Adds to or modifies a camouflaged PWSF in a way that would defeat the effect of the camouflage.

TRANSMISSION EQUIPMENT

Equipment that facilitates transmission for any FCC-licensed or authorized wireless communication service, including, but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, and regular and backup power supply. The term includes equipment associated with wireless communications services, including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul. (FCC 14-153, 47 CFR 1.40001)

TOWER

Any structure built for the sole or primary purpose of supporting any FCC-licensed or authorized antennas and their associated facilities, including structures that are constructed for wireless communications services, including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul, and the associated site. (FCC 14-153, 47 CFR 1.40001)

UTILITY POLE

A structure owned and/or operated by a public utility, municipality, electric membership corporation, or semi-rural/rural electric cooperative that is designed specifically for and used to carry lines, cables, or wires for telephony, cable television, or electricity, or to provide lighting.

WIRELESS TELECOMMUNICATIONS FACILITY (WTCF)

Any installation that includes an antenna and related equipment for the transmission or reception of radio frequency communications, including but not limited to PWSFs. See "tower."

[1] Editor's Note: See 47 CFR 1.40001.

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

(1) Preserve the authority of the Town of Rye to regulate and to provide for reasonable opportunity for the siting of wireless telecommunications facilities, by enhancing the ability of providers of wireless telecommunications services to furnish such services to the community quickly, effectively, and efficiently.

(2) Balance the Town’s responsibility to provide reasonable opportunities for wireless telecommunications facilities with the other objectives of this chapter and with the goals and objectives of the Rye Master Plan.

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

(4) Encourage minimal impact siting options, including, when applicable, collocation and site sharing, through an assessment of technology, electronic compatibility, current locational options, future available locations, innovative siting techniques, and siting possibilities beyond the political jurisdiction of the Town.

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

(6) Require cooperation and site sharing, to the highest extent possible, especially with respect to the use of towers, between competitors in order to reduce cumulative negative impacts upon Rye.

(7) Provide for the compatible use and safe operation of such facilities.

(8) Provide for the removal of abandoned or inactive facilities to eliminate unnecessary visual blight and remove potential unsecured safety hazards.

C. Wireless Telecommunications Facilities District and map. The Wireless Telecommunications Facilities District (WTCF District) shall be an overlay district as shown on the Zoning Map of the Town of Rye and described as follows:

Map-Lot	Location	Present Use	Controlled By
007-093-000 007-093-00A	0 Grove Road 96 Grove Road	Cell tower	Town of Rye
007-096-000-PR4 007-096-000-PR3	Off Grove Road	Town	Town of Rye
007-108-000 007-109-000 007-112-000	Garland Road	Water wells and pumping (see Note 1)	Rye Water District
010-004-001	Lafayette Road/Breakfast Hill 271 Lafayette Road	Water tank	Independent Wireless One Rye Water District
012-052-000	580 Washington Road	See Note 2	Rye Congregational Church
018-034-000	555 Sagamore Road Lang's Corner	School Soccer Field	Rye School District
023-001-000	68 Port Way	Vacant	Town of Rye

Note 1. Towers and other telecommunication facilities are prohibited within the four-hundred-foot sanitary radius exclusion zone of the Rye Water District water wells.
Note 2. Within the Rye Center Historic District, wireless telecommunications facilities may be mounted only upon existing structures, including Bethany Church, provided that such facilities do not exceed 20 feet height above the existing structure.
Note 3. Upon application to the Planning Board for a conditional use permit, this § 190-5.5 overlay district may be expanded to include parcels where an applicant determines that:
(a)	A substantial gap in telecommunications service exists; and
(b)	There are no alternative locations for the siting of a WTCF to address that substantial gap in telecommunications service.

D. Permitted uses. In addition to uses permitted in the underlying zoning districts under Article II, wireless telecommunication facilities are a permitted use within the Wireless Telecommunications Facilities District only after obtaining a special use permit as provided for in § 190-5.5H. All such uses must comply with other applicable ordinances and regulations of the Town of Rye (including Site Plan Review Regulations).

E. Clarifications.

(1) Principal or secondary use. WTCFs may be considered either principal or secondary uses. Having an existing permitted use on site shall not preclude the addition of WTCFs as a secondary use, provided all other provisions of this section are met. A different existing use or an existing structure on the same lot shall not preclude the installation of a WTCF base station or tower on such lot. For purposes of determining whether the installation of a WTCF complies with district development regulations, including but not limited to setback requirements, lot coverage requirements, and other such requirements, the dimensions of the entire lot shall control, even though the WTCF may be located on leased parcels within such lots. WTCFs that are constructed and operated in accordance with the provisions of this section shall not be deemed to constitute the expansion of a nonconforming use or structure.

(2) Height requirements. These requirements and limitations shall preempt all other height limitations as required by the Town of Rye Zoning Ordinance and shall apply only to WTCFs. A requested tower height must be substantiated by the applicant and must be approved by the Planning Board. No tower approved after the adoption of this section shall exceed 150 feet overall height.

(3) Amateur radio and receive-only antennas. Amateur radio and receive-only antennas are permitted in all zones, subject to this subsection.This section shall not govern any tower, or the installation of any antenna, that is under 70 feet in height and is owned and operated by a federally licensed amateur radio station operator or is used exclusively for over-the-air reception devices as regulated by the FCC. This application adopts the provisions and limitations as referenced in RSA 674:16, IV, pertaining to FCC requirements that local regulation of amateur antenna structures "must constitute the minimum practicable regulation to accomplish the local authority's legitimate purpose." (47 CFR 97.15). Amateur antenna structures greater than 70 feet are subject to site plan review.

(4) Essential services and public utilities. WTCFs shall not be considered infrastructure essential services, public utilities or public utilities buildings, as defined or used elsewhere in the Town's ordinances and regulations. Siting for WTCFs is a use of land, and is addressed by this section.

F. Design performance requirements. The Planning Board may take into account the facts of each application to adjust or waive the requirements of this section by making specific written findings in support of such adjustments or waivers.

(1) Tower design.

(a) Towers shall be designed and built to accommodate site sharing to the extent required by the Planning Board as a condition of a special use permit. The minimum number of additional antennas that a WTCF can accommodate will be determined by the Planning Board in consideration of the height, visual impact and other characteristics of the proposed tower in the context of its proposed location.

(b) Applicants for special use permits to construct, modify or site share on a tower shall show designs that are of the realistic dimensions required to satisfy structural codes for such construction. Full structural code compliance analysis need not be provided with an application, as any approved project is subject to code review by the Building Inspector.

(c) Towers greater than 70 feet height shall be of monopole construction, unless waived by the Planning Board based on a finding that the visual impact of the tower design is not more objectionable in the context of the proposed tower site.

(d) Towers shall not be artificially lighted, unless required by the FAA or other applicable authority. It is preferred that towers not be of such heights as to require FAA lighting, due to the residential nature of the community. 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, including subject to the approval of the FAA radar-activated lighting.

(e) Towers shall be a color to reduce visual obtrusiveness or otherwise appear harmonious with the context of its location. Two-tone towers are discouraged.

(2) Visual aesthetics, finishes and workmanship.

(a) Towers, exposed antennas and related apparatus and antenna concealments shall be finished with durable materials that will not deteriorate and cause visual or safety impacts over time. Elements of towers, antennas, base stations and transmission equipment visible to the public shall be maintained in a neat and workmanlike condition and appearance, subject to terms of the special use permit and enforcement by the Building Inspector.

(b) At all WTCF sites, the design of the equipment shelters, compounds and related structures shall, to the extent possible, use architecture, materials, colors, textures, screening, and landscaping that will blend with or be architecturally compatible with the natural setting and/or built environment around the site.

(c) If antennas and other apparatus are installed on a structure other than a tower, it is preferred that they be enclosed within architecturally compatible concealments, unless they are not obtrusive to the public view by nature of their surroundings (e.g., on an industrial rooftop, or out of sight from public views).

(d) WTCFs shall not display any signs, advertising, writing, symbols, or any graphic representation of any kind visible to the public, other than reasonable notification and safety signage.

(e) Base stations and towers shall be landscaped with a buffer of plant materials that effectively screens the view of the WTCF from adjacent residential property year round. In locations where the visual impact of the tower would be minimal, the landscaping requirement may be reduced or waived entirely. 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.

(f) To the extent practicable, towers, mounts and equipment shall be placed on the property in such a way as to minimize the visual impact on neighbors and viewsheds. The Planning Board may consider a setback waiver if it enables the proposed installation to be more harmonious with its surroundings.

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

(1) Setbacks and separation.

(a) Towers must be set back a distance equal to 120% of the height of the tower from the edge of the rear, side and front property lines for the lot on which the WTCF is located and from occupied residential structures.

(b) Towers, guys, anchor structures, base stations and accessory facilities must satisfy the minimum zoning district setback requirements.

(c) Towers must be set back a minimum of 120 feet from any structures (except structures that are part of the facility) and recreational fields. This shall be considered a "fall zone."

(2) Security fencing. Towers shall be enclosed by security fencing not less than six feet in height and shall also be equipped with an appropriate anti-climbing means.

(3) Noise. Equipment noise must not be audible to residential neighbors, except emergency generators, which may be audible up to a maximum of 50 dBA at the property line. Generator exercising (testing) shall be conducted during normal weekday business hours.

H. Special use permits.

(1) General. All WTCFs shall require a special use permit from the Planning Board, subject to the criteria of this § 190-5.5 and all other relevant requirements of the Rye Zoning Ordinance. All applications under this section are also subject to the Planning Board site plan review, in accordance with the requirements and procedures in Chapter 202, Land Development Regulations. In addition, applications under this section shall also be required to submit the information provided for in Subsection H(2) and (3) below.

(2) Plan requirements. Each applicant requesting a special use permit under this section shall submit a scaled plan in accordance with Chapter 202, Land Development Regulations, and further information including:

(a) Plans and elevation drawings employing the various scales and details necessary to show:

[1] The general locus of the proposal, including abutting properties and structures.

[2] The details of the proposed antenna mounting structure (e.g., tower, rooftop) and accompanying base station and transmission equipment, and utility interfaces.

[3] The fencing, landscape buffering, screening and/or concealment elements.

[4] Accessway, utility lines and parking.

[5] Tree and vegetation clearing, slopes, wetlands and other surface characteristics or changes thereto.

(b) Photosimulation of the proposed WTCF, inclusive of the maximum number of antennas to be located thereon, from the vantage point of abutting properties (or the public right-of-way adjacent thereto), important community resources (parks, conservation areas, schools, etc.) and from other publicly accessible views. Applicants are encouraged to discuss potential photographic locations with the Town Planner during the preliminary processes outlined in Chapter 202, Land Development Regulations. The Town Planner, in consultation with the Planning Board Chair, may defer the photosimulation requirement if:

[1] It may not be necessary considering the nature of the application, subject to a Planning Board decision during the hearing; or

[2] It may be prudent to set a public announcement for a balloon/crane test of a proposed tower during the hearing, from which the applicant can prepare a photosimulation report in consultation with the Planning Board.

(c) Such evidence of coverage as is necessary to demonstrate the need for the proposed tower height, usually in the form of coverage maps of the participating wireless services.

(d) If the applicant asserts any federal or state preemption is applicable, such as the non-prohibition of the provision of personal wireless services clause under the 1996 Telecommunications Act, or any other relevant federal or state rulings or laws, such evidence as is necessary to demonstrate how the preemption applies to the application. Such evidence might include an analysis of alternatives pursued, additional coverage or capacity analysis, demonstration of dimensions comporting with such preemption, etc. It is the applicant’s responsibility to make the case for such consideration. Upon reviewing the facts, the Planning Board may require the applicant to submit supplemental information.

(e) If the applicant asserts it is entitled to consideration under a regulatory shot clock, documentation demonstrating why and how the shot clock is applicable.

(f) Analysis of the noise the facility will generate.

(g) Analysis of the facility's radio frequency energy emissions demonstrating the design will be in compliance with applicable FCC regulations regarding human exposure to radio frequency energy.

(h) Approvals from, or copies of submitted applications to, all necessary state and local boards and agencies regarding crossing of wetlands, or work in wetland buffers, if required.

(i) Documentation of the applicant's environmental review, further referenced in applicable FCC rules, satisfying the requirements of the National Environmental Policy Act (NEPA), as well as its historic review and tribal notifications under the National Historic Preservation Act (NHPA) and other laws. If subject to a categorical exclusion, documentation demonstrating applicability.

(j) An inventory of the applicant's existing facilities within the jurisdiction of the Town and those outside the border and closest to it, including specific information about the location, height, design of each facility.

(k) The applicant for a new tower shall provide an assessment of existing towers and structures on which applicant or a potential lessee of the applicant could collocate one or more facilities to materially reduce the coverage or capacity issues that the proposed facility is intended to address. The Planning Board may consider combinations of one or more collocations and/or reduction or relocation of the proposed new facility to close an existing gap in wireless telecommunications service in a way that may be materially less objectionable to the community.

(l) The applicant for a new tower shall submit an alternatives analysis containing written evidence demonstrating that no existing structure(s), or no existing structures in combination with less impactful new facility site(s), and no alternative new site(s) can be combined to close an existing gap in wireless telecommunications service in a manner more consistent with this section.

(3) Issuance of special use permits. In granting the special 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 WTCF on the purpose and intent of this section.

(a) Decisions. Possible decisions rendered by the Planning Board include approval, conditional approval, or non-approval of the special use permit. All decisions shall be rendered in writing, in accordance with RSA 676:3. Notice of decision shall be filed within 72 hours and in the event of denial shall include written reasons for the same. In accordance with the National Wireless Telecommunications Siting Policy Section 332(C) [47 U.S.C. § 332(C)], any non-approval (in the form of a vote to deny or a vote not to approve) shall be based upon substantial evidence contained in the written record.

(b) Factors to be considered in reviewing applications:

[1] Height of the proposed WTCF does not exceed that which is essential for its intended use and public safety within the limits of § 190-5.5E(2).

[2] Impact of WTCF (including tower, when applicable) on the community, including such factors as:

[a] Noise.

[b] Vehicular traffic.

[c] Visual impacts to neighbors.

[d] Visual impacts to the community.

[e] Proximity of WTCF to residential development or zones.

[f] Compatibility with uses on adjacent and nearby properties.

[g] Surrounding topography.

[h] Surrounding tree coverage and foliage.

[i] Design characteristics of the WTCF (and tower, when applicable) that reduce or eliminate visual obtrusiveness.

[j] Adverse impacts to the property values of abutting properties.

[3] Availability of less objectionable alternatives more consistent with the purpose and intent of this section.

[4] Consistency of proposed WTCF with this and other sections of the Rye Zoning Ordinance.

[5] Adequacy of proposed ingress and egress to the site.

[6] Availability of suitable existing towers and other structures as discussed in § 190-5.5H(2)(k).

[7] Visual, traffic, noise and other impacts to neighboring residential uses and overall compatibility with surrounding land uses.

[8] Visual impacts on viewsheds, ridgelines, and other impacts caused by tower location, tree and foliage clearing and placement of incidental structures.

[9] Impact on view from any public park, public beach, natural scenic vista, historic building or site or major view corridor.

[10] That the proposed facility is not constructed in such a manner as to result in needless height, mass, visual clutter and bulk.

[11] That if exposed (unconcealed) antennas and related apparatus are proposed, the visual impact of such a design would not be materially improved by concealment or that such concealment is impracticable.

[12] That if a proposed tower is not a monopole, the reasoning for not using a monopole is consistent with the intent of this section in the context of the proposed site and visibility.

[13] The existence and extent in any gap in coverage for telecommunications service.

[14] Consistency with the goals and objectives of the Rye Master Plan.

[15] The proposed WTCF is in harmony with the various requirements of this section, NEPA, NHPA and other applicable regulations.

(c) The Planning Board may require the applicant for a special use permit to provide a form of surety (i.e., post a bond, a letter of credit or establish an escrow account or other) at the time of construction to cover costs of the removal in the event the Town must remove the facility. The applicant shall submit a fully inclusive estimate of the costs associated with removal prepared by a qualified engineer. The amount shall include a mechanism to accommodate the rate of inflation over 25 years.

I. Removal of abandoned antennas and towers.

(1) Owners of property on which one or more WTCFs are being deactivated or abandoned shall promptly notify the Rye Building Inspector and the Planning Board in writing, within 60 days of becoming aware of such plan to deactivate or abandon. Any WTCF or tower that is not operated for a continuous period of 12 months shall be considered abandoned and hazardous to the public health and safety, unless the lessee or owner of said tower provides proof of quarterly inspections. The property owner shall remove the abandoned structure within 90 days of receipt of a declaration of abandonment from the Town notifying the lessee or owner of such abandonment.

(2) A declaration of abandonment shall only be issued following a public hearing, noticed per Town regulations, with notice to abutters and the last known owner/operator of the tower. If the abandoned WTCF or tower is not removed within 90 days, the Town may have the WTCF or tower removed. This provision may apply to individual WTCFs provided it shall not apply to a tower until all WTCFs cease using the tower.

J. Consultant fees. The Board may retain the services of a consultant qualified in WTCF siting and design review to review the application and all associated information. The Board may further require, pursuant to RSA 676:4, I(g), that the applicant reimburse the Town for reasonable costs of this review. No application shall be approved until such fees, if applicable, are paid in full. This provision shall not limit or restrict in any way the Board's ability to require other investigative studies under its permitting and site plan review authority.

K. Waivers. Where the Planning Board finds that extraordinary hardships, serious practical difficulties, or unnecessary and unreasonable expense would result from strict compliance with the foregoing regulations or that the purposes of these regulations may be served to a greater extent by an alternative proposal, it may approve waivers to the provisions set forth in§ 190-5.5F, G and H, provided the Planning Board makes specific written findings for each such waiver based on the record. 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 and/or to obtain an outcome that is most consistent with the purpose and intent of this section and compliance with the Telecommunications Act.

(1) Requirements for waivers. 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 is to provisions within this § 190-5.5 and will not, in any manner, vary the other provisions of the Rye Zoning Ordinance, Rye Master Plan or Official Map.

(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 each waiver. Factors to be considered in determining the existence of a hardship shall include, but not be limited to:

[1] Information requested is not relevant to or not necessary for making a decision.

[2] A requirement in this § 190-5.5 does not reduce the impact of the proposal in the context of its design and location compared to the result proposed with waivers.

[3] The effort required to comply with this § 190-5.5 regarding application content, design criteria, performance criteria or other criteria is unreasonably disproportionate to the intensity and scale of the proposal or the resources of the applicant.

(e) The grant of the waiver is necessary to avoid the effective prohibition of wireless telecommunications services, as that term has been interpreted by the FCC and all other sources of law.

(2) Conditions. In approving waivers, the Planning 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. The Planning Board will not consider a waiver request unless it has been submitted in writing.

L. Compliance with RSA 12-K:7.

(1) Upon receipt of an application to construct a new PWSF tower or to complete a substantial modification to an existing PWSF tower or mount which will be visible from any other New Hampshire municipality within a twenty-mile radius, the Town shall:

(a) Provide written notification of such application to such other municipality, per RSA 12-K:7, I(b); and

(b) Publish a notice in a newspaper customarily used for legal notices by the Town, as required by RSA 12-K:7, I(b). Such notice shall be published not less than seven days nor more than 21 days prior to the date of any public hearing which may be required.

(2) For applications to the Board of Adjustment relative to a proposed wireless telecommunications facility, the Building Inspector shall provide the above notifications required by RSA 12-K:7.

M. Collocations/modifications. Pursuant to RSA 12-K:10, PWSF collocations on towers and mounts with existing antennas, and modifications to existing PWSFs that are not substantial modifications, are exempt from the requirements of § 190-5.5D to K. Applicants for collocation or modification shall apply to the Building Inspector for a building permit. The Building Inspector's review and decision shall comply with RSA 12-K:10, II. Nevertheless, such collocations on existing towers and mounts and such modifications shall comply with the criteria of the underlying site approval and the performance criteria under this section to the extent they are not preempted by federal rule.

N. Administration. WTCF application reviews are subject to certain federally imposed time constraints known as "shot clocks" and other restrictions.

(1) Shot clocks.

(a) In the case of applications for new towers or substantial modifications regulated herein, or for determinations of eligible facilities requests, the Planning Board has 30 days from receipt of application to decide whether the application is complete, to communicate whether that application is complete to the applicant, and, if not, communicate in writing the documents or information necessary for the application to be deemed complete. Shot clocks may be tolled until the applicant supplies any missing information necessary for the application to be deemed complete, subject to procedures outlined by the FCC. To facilitate efficient application completeness review, the Planning Board may delegate the responsibility of making such reviews to the Town Planner or other Town employee, who shall act in consultation with the Planning Board Chair, including the decision whether to engage the services of a WTCF siting consultant to assist with the review at the applicant's expense. This administrative activity shall be brought to the Planning Board for consideration when the Planning Board opens the hearing for the application.

(b) It is presumed that an application for collocation can be heard and decided within 90 days, while the presumption for new tower applications is 150 days. Applications for determination of eligible facility request must be decided upon within 60 days (plus any legitimate tolling or mutual extensions) at which time the FCC asserts the application is deemed granted. The Planning Board shall make reasonable effort to meet these schedules and shall document any exigencies that contribute to the time required to fully hear and act on the application. The Planning Board shall obtain written agreement of tolling of the shot clock or extension of deadline from the applicant when practicable.

(2) Eligible facilities requests.

(a) The Planning Board is responsible for entertaining all determination of eligible facilities request applications.

(b) The applicant may file an application for a determination of eligible facility request with the Planning Board, which application shall conform to the criteria below and any regulations adopted by the Planning Board.

(c) Upon receipt of such an application, the Planning Board must make a determination of completeness within 30 days of receipt, according to the procedures above.

(d) Within 60 days of receipt of a determination of eligible facility request, plus any legitimate tolling or mutual extensions, the Planning Board shall determine in writing whether the proposed project is a valid eligible facilities request or is subject to site plan review or special use permit criteria. If the application is determined to be an eligible facilities request, the written determination may also include any reasonable conditions consistent with prior approvals and considering the nature of the proposed modifications. The conditions may not further limit those characteristics that determine the proposed modification is not a substantial modification. The Planning Board may not deny and shall approve a valid eligible facilities request.

(e) Applications for a determination of eligible facilities request shall be accompanied by such evidence as necessary to demonstrate the scope of the project is clearly within the bounds of an eligible facilities request, including, without limitation:

[1] Documentation showing how the project involves:

[a] Collocation of new transmission equipment;

[b] Removal of transmission equipment; or

[c] Replacement of transmission equipment.

[2] Documentation showing the project involves an eligible facility; and

[3] Documentation showing how the project is not a substantial modification.

(f) The Planning Board's review of a determination of eligible facilities request may require the applicant to provide documentation or information only to the extent reasonably related to determining whether the request meets the requirements of this section. It may not require an applicant to submit any other documentation, including but not limited to documentation intended to illustrate the need for such wireless facilities or to justify the business decision to modify such wireless facilities.

§ 190-5.6 Accessory apartments.

[Added 3-10-1998; amended 2002; 3-18-2017]

A. Purpose. The Town of Rye recognizes the public need for the provision of a variety of housing types, including efficient and affordable housing for singles, couples, single parents, elderly and new households. Throughout the Town opportunities exist within under-utilized and/or large single-family dwellings to create small accessory dwelling units to meet these needs, as well as to provide a source of income and other assistance for property owners. To accomplish this purpose and to protect the health, safety and welfare of the existing neighborhoods, accessory units may be permitted subject to the following requirements.

B. Conditional use permit. The Planning Board may grant a conditional use permit to allow the construction of, addition to, renovation of and use and occupancy of a single-family dwelling in the Single Residence District, the General Residence District or the Business District, in order to create one subordinate accessory dwelling unit as an integrated part of said single-family dwelling, in accordance with the following performance standards.

C. Performance standards. The Planning Board shall determine that an accessory dwelling unit complies with the following standards:

(1) Each accessory dwelling unit shall have a minimum floor area of 600 square feet and a maximum floor area of 1,200 square feet and shall contain, at a minimum, a separate cooking area with a kitchen sink, one full bathroom, and not more than two bedrooms.

(2) Each accessory dwelling shall be limited to a maximum occupancy of three persons. A one-bedroom accessory dwelling unit shall not have more than two occupants.

(3) Two additional off-street parking spaces shall be provided for the accessory dwelling unit.

(4) The accessory dwelling shall be constructed and maintained in such a manner as to retain the appearance and character of the structure and site as a single-family dwelling.

(5) After construction of the ADU, the principal dwelling unit on the premises shall comply with the floor area requirements of § 190-2.3C(5) of this chapter.

[Amended 3-14-2023 by Art. 3 (Am 6)]

(6) The property owner shall reside on the premises.

(7) An approval shall be obtained from NHDES relative to the adequacy of the on-site waste disposal system. As required by RSA 674:72, V, prior to constructing an accessory dwelling unit, an application for approval for a sewage disposal system shall be submitted in accordance with RSA 485-A as applicable. The approved sewage disposal system shall be installed if the existing system has not received construction approval and approval to operate under current DES rules or predecessor rules, or the system fails or otherwise needs to be repaired or replaced.

[Amended 3-13-2018]

(8) An approval shall be obtained from the applicable supplier of public water or certification of a well of adequate capacity shall be provided.

(9) Approval of the Rye Sewer Commissioners shall be required for an accessory dwelling unit served by Town sewer.

(10) There shall be no more than one accessory dwelling unit allowed in a single-family dwelling.

(11) There shall be no more than one accessory dwelling unit allowed on a lot.

(12) If a dwelling unit is rented, it shall be for a term greater than three months.

(13) An interior door shall be provided between the principal dwelling unit and the accessory dwelling unit.

(14) An accessory dwelling unit shall not be permitted in a detached accessory building.

(15) An accessory dwelling unit shall not be permitted in single-family dwellings attached to each other, such as townhouses.

[Added 3-13-2018]

(16) An accessory dwelling unit shall not be permitted with manufactured housing.[1]

[Added 3-13-2018]

[1] Editor's Note: Former Subsection C(17), requiring that "all other zoning requirements shall be met," which immediately followed this subsection, was repealed 3-14-2023 by Art. 3 (Am 6).

D. Applications. All applications for conditional use permits shall include the following information:

(1) A property layout, including existing or proposed septic system.

(2) A parking plan.

(3) A floor plan of all rooms on the premises and the uses thereof.

(4) Plans for access and egress.

(5) Approval of the Fire Chief.

(6) All other necessary approvals required in this § 190-5.6, including, but not limited to, permits and approvals for the provision of water and sewerage/septic.

[Added 3-14-2023 by Art. 3 (Am 6)]

(7) Elevation views of buildings whenever exterior changes are proposed.

E. Except as expressly set forth in this § 190-5.6, nothing in this section shall be deemed to modify or alter any of the other requirements under this chapter.

[Added 3-14-2023 by Art. 3 (Am 6)]

F. Condominium conveyance. Notwithstanding the provision of the Condominium Act,[2] condominium conveyance of an accessory dwelling unit separate from that of the principal dwelling unit is prohibited.

[Added 3-13-2018]

[2] Editor's Note: See RSA 356-B:1 et seq.

G. Recertification. Every two years after approval and when the dwelling is sold, the owner of the dwelling and all adult occupants of the accessory dwelling unit shall file an affidavit with the Building Inspector certifying that the owner lives on the premises and that the occupancy of the accessory dwelling unit complies with § 190-5.6C(2).

H. Appeal. This is an innovative zoning provision adopted pursuant to RSA 674:21. Appeals of decisions on applications for a conditional use permit may be filed with the Rockingham County Superior Court or the Housing Appeals Board within 30 days of the date of decision.

[Amended 3-8-2022 by Art. 3]

§ 190-5.7 Stormwater management.

A. Purpose. It is the intent of this section to protect, maintain and enhance the public health, safety and environment by regulating building and land development so that surface water drainage from building and land development does not adversely affect adjacent properties, watercourses or the Town's storm drainage system.

[Amended 3-18-2017]

B. Drainage onto adjacent properties. No use of land; no construction, reconstruction, alterations, replacement, or expansion of buildings, structures and impervious surfaces; no grading or excavation of the land; and no destruction or alteration of natural vegetation or ground cover shall increase the surface water drainage flowing onto an adjacent property unless a drainage easement allowing such flowage in perpetuity is recorded.

[Amended 3-14-2023 by Art. 3 (Am 6)]

C. Drainage into watercourses/Town drainage system. No use of land; no construction, reconstruction, alterations, replacement, or expansion of buildings, structures and impervious surfaces; no grading of the land; and no destruction or alteration of natural vegetation or ground cover shall increase the surface water drainage or flowage into existing watercourses or into the Town's storm drainage system, and it is incumbent upon the applicant to prove via approved engineering plans the Town's storm drainage system has the capacity to accommodate the additional flow.

[Amended 3-12-2024 by Art. 3 (Am 3)]

D. Drainage and grading plan. The Building Inspector may require submission of a detailed stormwater management and erosion control plan which includes a drainage and grading plan at his/her sole discretion and at the expense of the property owner whenever there is construction of a new building/structure, expansion of a building/structure, reconstruction, or changes to the impervious surface or whenever there is question regarding compliance with this section.

[Amended 2002; 3-18-2017]

§ 190-5.7.1 (Reserved) [1]

[1] Editor's Note: Former § 190-5.7.1, Illicit discharge detection and elimination (IDDE), added 3-10-2020 by Art. 4, was repealed 3-14-2023 by Art. 3 (Am 6). See now Ch. 70, Illicit Discharge Detection and Elimination.

§ 190-5.8 Small wind energy systems.

[Added 2009]

A. Authority. This section is adopted in accordance with RSA 672:1, as amended by Chapter 357 of the New Hampshire Session Laws of 2008, and RSA 674:62 et seq., which is effective July 11, 2009.

[Amended 3-10-2020 by Art. 3]

B. Purpose. The purpose of this section is to provide for distributed generator/small wind energy systems intended primarily to reduce on-site consumption of utility power in appropriate locations, while minimizing any adverse visual, safety and environmental impacts of a system. Small wind energy systems increase local energy independence, reduce pressure on the local electricity grid and reduce pollutants from traditional forms of energy.

C. Definitions. The following definitions shall apply to this section:

FALL ZONE

The potential fall area for the small wind energy system. It is measured by using 120% of the total system height as the radius around the center point of the base of the tower, e.g., if the total system height is 60 feet, the fall zone would be defined by a circle with a radius of 120% of 60 feet = 72 feet around the tower (as measured from the center of the base of the tower).

FLICKER

The moving shadow created by the sun shining on the rotating blades of the wind turbine.

METEOROLOGICAL TOWER (MET TOWER)

A temporary tower which includes the tower, base plate, anchors, guy wires and hardware, anemometers (wind speed indicators), wind direction vanes, booms to hold equipment for anemometers and vanes, data loggers, instrument wiring, and any telemetry devices that are used to monitor or transmit wind speed and wind flow characteristics over a period of time for either instantaneous wind information or to characterize the wind resource at a given location. Met towers are only those towers whose purpose is to analyze the environmental factors needed to assess the potential to install, construct or erect a small wind energy system.

NET METERING

The difference between the electricity supplied to a customer over the electric distribution system and the electricity generated by the customer's small wind energy system which is fed back into the electric distribution system over a billing period.

POWER GRID

The transmission system, managed by ISO New England, created to balance the supply and demand of electricity for consumers in New England.

SHADOW

The outline created on the surrounding area by the sun shining on the small wind energy system.

SMALL WIND ENERGY SYSTEM

A wind energy conversion system consisting of:

(1) A vertical or horizontal wind turbine, a tower, and associated control or conversion electronics, which has a rated capacity of 60 kilowatts or less and will be used primarily for on-site consumption; or

(2) A horizontal or vertical turbine mounted on a building and associated control or conversion electronics, which has a capacity of 60 kilowatts or less and will be used primarily for on-site consumption.

TOTAL SYSTEM HEIGHT

The vertical distance from grade to the tip of the wind turbine blade when it is at its highest point.

TOWER

The monopole or guyed monopole structure that supports a wind turbine.

TOWER HEIGHT

The height above grade of the fixed portion of the tower, excluding the wind turbine.

WIND TURBINE

The blades and associated mechanical and electrical conversion components mounted on top of the tower whose purpose is to convert kinetic energy of the wind into rotational energy used to generate electricity.

D. Permits. The installation or modification of a small wind energy system shall require a building permit from the Building Inspector and a conditional use permit (CUP) from the Planning Board. The permits shall be applied for simultaneously. The Planning Board shall prepare a single permit application for this purpose.

(1) Required information. The information required by § 190-5.8F shall be submitted with the application.

(2) Abutter notice. The Building Inspector shall comply with the notice requirement of RSA 674:66, which provides abutters with a thirty-day comment period prior to issuance of a building permit. The Building Inspector's notice may be mailed concurrently with the Planning Board's notice of its hearing on the CUP application.

E. Conditional use permit.

(1) Review process. Conditional use permit applications shall be processed in accordance with the Rye Planning Board's procedures for major site developments (i.e., major site plans). Upon the request of the applicant, the Planning Board shall grant waivers of its requirements for soils plans, surface water drainage plans and erosion control plans where no purpose would be served by reviewing such plans.

(2) Approval of CUP. Prior to approving an application for a CUP, the Planning Board shall determine that all of the criteria of § 190-5.8G are met.

[Amended 3-14-2023 by Art. 3 (Am 6)]

(3) Appeal. In accordance with RSA 674:21 and RSA 676:5, III, appeals of Planning Board decisions on applications for a conditional use permit may be taken to the Superior Court or the Housing Appeals Board as provided by statute.

[Amended 3-8-2022 by Art. 3]

F. Required information. Applications for a building permit/CUP shall include the following information:

(1) A site plan stamped by a professional engineer or land surveyor licensed by the State of New Hampshire showing:

(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, including equipment associated with hybrid systems.

(d) Setback requirements and fall zone radius.

[Amended 3-14-2023 by Art. 3 (Am 6)]

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

(f) Any overhead utility lines.

(g) Any wetland, marsh, stream, pond, ocean or other water body within the fall zone.

(h) Tree and vegetation cutting at the site.

(i) The Planning Board may require the applicant to submit photosimulation of the proposed small wind energy facility from the vantage point of abutting properties (or the public right-of-way adjacent thereto), important community resources (parks, conservation areas, schools, etc.) and from other publicly accessible views. Applicants are encouraged to discuss potential photographic locations with the Town Planner during the preliminary processes outlined in Chapter 202, Land Development Regulations.

[Amended 3-14-2023 by Art. 3 (Am 6)]

(2) Small wind energy system specifications, including manufacturer, model, rotor diameter, tower height, tower type (freestanding or guyed), and nameplate generation capacity.

(3) If the small wind energy system will be connected to the power grid, documentation shall be provided regarding the notification of the intent with the utility regarding the applicant's installation of a small wind energy system.

(4) Tower foundation blueprints or drawings.

(5) Tower blueprint or drawings.

(6) Sound level analysis prepared by the wind turbine manufacturer or qualified engineer.

(7) Electrical components in sufficient detail to allow for a determination that the manner of installation conforms to the National Electrical Code.

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

(9) List of abutters.

G. Criteria. All small wind energy systems shall comply with the following requirements. The applicant has the burden of providing sufficient information to establish that the criteria are met.

(1) Setbacks.

(a) A small wind energy system mounted on a tower shall be set back a distance equal to 120% of the total system height from:

[1] Any public road right-of-way, unless written permission is granted by the governmental entity with jurisdiction over the road.

[2] Any overhead utility lines.

[3] All property lines, unless the affected landowner provides written permission through a recorded easement allowing the small wind energy system's fall zone to overlap with the abutting property.

[4] Any travel way, including but not limited to driveways, parking lots, nature trails or sidewalks.

[5] Wetlands, marshes, streams, ponds, the ocean (measured from the highest observable tide line) and water bodies.

[6] Occupied residential structures.

[Added 3-14-2023 by Art. 3 (Am 6)]

(b) Small wind energy systems shall meet all yard setbacks for the zoning district in which the system is located.

(c) The setback shall be measured to the center of the tower's base.

(d) Guy wires used to support the tower are exempt from all setback requirements but shall be located on the same lot as the tower.

(2) Tower.

(a) Lattice towers are prohibited.

(b) Tower height shall not exceed 140 feet.

(c) The applicant shall provide evidence that the proposed tower height does not exceed the height recommended by the manufacturer of the wind turbine for the proposed location.

[Amended 3-14-2023 by Art. 3 (Am 6)]

(d) In reviewing the proposed height in an application for a CUP, the Planning Board may consider the prevailing industry standard that the bottom of rotor blades should be at least 30 feet above any obstruction within 300 feet. The Planning Board may also consider that increased tower height may yield high returns on power production.

[Amended 3-14-2023 by Art. 3 (Am 6)]

(3) Building-mounted systems. Building-mounted small wind energy systems may be located only on those parts of a building which comply with yard setback requirements.

(a) The application for a CUP/building permit shall include the certification of a structural engineer licensed by the State of New Hampshire that the building will safely support the small energy wind system.

(b) In no case shall the total height exceed twice the height of the building.

(4) Sound level. The small wind energy system shall not exceed limits specified by rules of the State Site Evaluation Committee, except during short-term events such as severe wind storms and utility outages. For the purpose of determining compliance with the Site Evaluation Committee rules, the interval period for the measurement of sound generated by a small wind energy system shall be measured at an Leq interval rate of one minute. Therefore, sound collected shall be averaged over a period of one minute to determine whether an exceedance of the applicable noise standards as set forth in Rule Sec. 3014(f)(2) have been exceeded.

[Amended 3-10-2020 by Art. 3; 3-14-2023 by Art. 3 (Am 6)]

(5) Shadowing/flicker. Small wind energy systems shall be sited in a manner that does not result in significant shadow flicker impacts. The applicant has the burden of proving that there will not be significant shadow flicker impacts. Significant shadow flicker is more than 30 hours per year on an occupied building. Potential shadow flicker shall be addressed either through siting or mitigation measures.

(6) Signs. All signs, both temporary and permanent, are prohibited on the small wind energy system, except as follows:

(a) Manufacturer's or installer's identification on the wind turbine; and

(b) Appropriate warning signs.

(7) Code compliance. The small wind energy system shall comply with all applicable sections of the New Hampshire State Building Code and the Rye Building Code.[1]

[1] Editor's Note: See Ch. 35, Building Code.

(8) Aviation. The small wind energy system shall be built to comply with all applicable Federal Aviation Administration requirements, 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. Evidence of compliance or nonapplicability shall be submitted with the application.

[Amended 3-10-2020 by Art. 3]

(9) Visual impacts. It is inherent that small wind energy systems may pose some visual impacts due to the tower height needed to access the wind resources. The purpose of this section is to reduce the visual impacts, without restricting the owner's access to the wind resources.

(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, points of public importance and the community. This may include but not be limited to information regarding site selection, turbine design or appearance, buffering, and screening of ground-mounted electrical and control equipment.

[Amended 3-14-2023 by Art. 3 (Am 6)]

(b) The color of the small wind energy system shall either be a neutral stock color from the manufacturer or painted with a nonreflective, unobtrusive color that blends in with the surrounding environment, as approved by the Planning Board. The owner shall be responsible for maintaining the color of the small wind energy system over time.

(c) A small wind energy system shall not be artificially lit unless such lighting is required by the Federal Aviation Administration (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 and shall consider mitigation for said lighting, including radar-activated lighting.

[Amended 3-14-2023 by Art. 3 (Am 6)]

(d) All electrical conduits shall be underground. All electrical conduits and control wiring shall be underground or wireless.

(e) Towers will be landscaped with a buffer of plant material that effectively screens the view of the tower compound from adjacent residential properties.

(10) Utility connections. If the proposed small wind energy system is to be connected to the power grid through net metering, it shall adhere to RSA 362-A:9.

(11) Access. All ground-mounted electrical and control equipment shall be labeled and secured to prevent unauthorized access. The tower shall be designed and installed so as to not 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) Approved wind turbines. The manufacturer and model of the wind turbine to be used in the proposed small wind energy system must be approved by the California Energy Commission or the New York State Energy Research and Development Authority or, when approval lists become available, by the Small Wind Certification Council or the State of New Hampshire.

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

H. Abandonment.

(1) At such time that a small wind energy system 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 small wind energy system 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, removal of the wind turbine and tower and related above-grade structures and restoration of the location of the small wind energy system to its natural condition, except that any landscaping, grading or below-grade foundation may remain in the after-conditions.

(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. The Building Inspector shall withdraw the notice of abandonment and notify the owner that the notice has been withdrawn if the owner provides information that demonstrates the small wind energy system has not been abandoned.

(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 small wind energy system has been abandoned or discontinued, the owner of the small wind energy system shall remove the wind turbine 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 small wind energy system, the Town shall have the authority to remove it pursuant to the process set forth in RSA 676:17-a.

(5) The Planning Board may require the applicant for a CUP to provide a form of surety (i.e., post a bond, letter of credit or establish an escrow account or other) at the time of construction to cover costs of the removal in the event the Town must remove the facility. The applicant shall submit a fully inclusive estimate of the costs associated with removal, prepared by a qualified engineer. The amount shall include a mechanism to accommodate the rate of inflation over 25 years. The Planning Board shall retain jurisdiction to require additional surety if, during the the life of the small wind energy system, the amount of surety is deemed insufficient to cover the costs of removal.

[Amended 3-14-2023 by Art. 3 (Am 6)]

I. Meteorological (met) towers. The construction of a met tower for the purpose of collecting data to develop a small wind energy system shall abide by the following requirements:

(1) The construction, installation or modification of a met tower shall require a building permit and shall conform to all applicable sections of the New Hampshire State Building Code and the Rye Building Code.[2] The information required by § 190-5.8F shall be submitted with the application for a building permit.

[2] Editor's Note: See Ch. 35, Building Code.

(2) Met towers shall be permitted on a temporary basis not to exceed 18 months.

(3) Met towers shall comply with all requirements of § 190-5.8G.

(4) A conditional use permit is not required to construct, install or modify a met tower.

§ 190-5.9 Demolition review.

[Added 2009; amended 3-12-2013]

A. Purpose. The purpose of this section is to encourage the preservation of buildings and places of historic, architectural and community value.

B. Demolition. For the purposes of this section, the word "demolition" means the act of pulling down, destroying, dismantling, removing or razing a building or part of a building. This shall include a monument, statue, memorial, or accessory building. It does not include interior demolition which does not alter the appearance of the exterior of the building.

[Amended 3-10-2020 by Art. 3]

C. Demolition subject to review. Any demolition within the Town of Rye, excluding the Historic District, shall be subject to the requirements of this section where:

[Amended 3-10-2020 by Art. 3; 7-13-2021 by Art. 3]

(1) The demolition is:

(a) A building or part of a building greater than 500 square feet of gross floor area; or

(b) A monument, statue, or memorial; or

(c) An accessory building less than 500 square feet of historical or architectural interest; and

(2) The building or part of a building, monument, statue, memorial, or accessory building was constructed more than 50 years before the date of application for a demolition permit.

D. Demolition Review Committee. A Demolition Review Committee is hereby established consisting of three persons and three alternates.

[Amended 3-10-2020 by Art. 3]

(1) The Demolition Review Committee members shall be appointed by the Select Board to three-year terms, with the initial terms staggered as one-, two- and three-year terms, respectively. The initial terms of alternates shall be staggered as two- and three-year terms, respectively.

[Amended 3-14-2023 by Art. 3 (Am 6)]

(2) One member of the Demolition Review Committee shall be a member of the Historic District Commission, one member shall be a member of the Planning Board, and one member shall be a representative of the Rye Historical Society.

(3) If the Town establishes a Heritage Commission pursuant to RSA 673:1 and RSA 673:4-a, the Demolition Review Committee shall be comprised of three members of the Heritage Commission and two alternates appointed by the Chair of the Heritage Commission. If the Demolition Review Committee already exists pursuant to Subsection D(2) above, such appointments shall be made as replacements for the existing Demolition Review Committee members as the terms of the existing members expire.

E. Demolition review procedure.

(1) When an application for a demolition permit, or a building permit involving demolition, or a site plan review involving demolition, is made, or a formal written application is submitted to the Building Inspector for a determination under this section, the Building Inspector will determine if the building, or section of the building, meets the criteria of § 190-5.9C. If it does, the Building Inspector shall:

(a) Notify the applicant in writing within five business days of the filing that the demolition must be reviewed before proceeding and that the delay will not exceed 49 days.

(b) Within five business days forward the application to each member of the Demolition Review Committee.

(2) The Demolition Review Committee shall meet within 10 business days after receipt of the application and make one of the following two determinations:

[Amended 3-10-2020 by Art. 3; 3-12-2024 ATM by Art. 3 (Am 4)]

(a) If the Demolition Review Committee determines that the building is not potentially significant and its loss will not be detrimental to the neighborhood, it shall, within three business days of making that determination, notify the Building Inspector of the determination. In such a case, a demolition permit may be issued by the Building Inspector provided all other requirements applicable to the demolition have been met.

(b) If the Demolition Review Committee determines that the building is potentially significant and its loss will be detrimental to the neighborhood, it shall schedule a public hearing within 12 business days of making that determination, and within three days of making that determination notify the Building Inspector of that determination. Notice of the public hearing shall be posted in two public places and published at least five days prior to the hearing, not including the day of the hearing or the day of posting. Notice to abutters shall be made by certificate of mailing to all abutters not less than five calendar days before the date of the hearing.

[Amended 7-13-2021 by Art. 3]

(3) Within five business days of the Demolition Review Committee's decision to hold a public hearing, the Building Inspector shall notify the applicant that a sign identifying the building as proposed for demolition and the date, time, and place of the public hearing on the proposed demolition is ready for posting in a visible location on the building or site. Posting of the sign within five business days of receiving notification from the Building Inspector shall be the responsibility of the applicant.

(4) At the public hearing, the Demolition Review Committee shall hear all public testimony regarding demolition of the building. The owner or the owner's representative is expected to attend the hearing.

[Amended 3-12-2024 by Art. 3 (Am 4)]

(5) During the hearing, the Demolition Review Committee shall discuss alternatives to demolition.

[Amended 3-12-2024 by Art. 3 (Am 4)]

(6) The demolition review process shall not delay the issuance of a demolition permit by more than the 49 days provided by § 190-5.9E(1)(a), except in the following circumstances:

(a) An owner's (or his/her representative's) unwillingness or inability to meet with the Demolition Review Committee shall extend the period until such a meeting is held and for 20 days following the date of the meeting.

(b) An owner's delay in posting the sign required by § 190-5.9E(3) shall extend the period by the number of days of delay in posting the sign.

F. Demolition.

(1) If no alternatives to demolition have been identified and agreed to by the applicant, after the meeting provided for in § 190-5.9E(4), the applicant is free to proceed with demolition, provided all other requirements for demolition are met. Prior to demolition, and if the applicant is in agreement, the Demolition Review Committee shall photographically document the building. The Demolition Review Committee shall also encourage the applicant to salvage significant architectural features.

[Amended 3-12-2024 by Art. 3 (Am 4)]

(2) Nothing in this section shall be construed to prevent immediate demolition where public safety is at stake and the building has been determined by the Building Inspector to be a public hazard and demolition is the only viable recourse.

(3) A demolition permit shall be conditioned upon receipt of all local, state, and federal permits required for the demolition activity.

[Added 3-10-2020 by Art. 3]

G. Criteria. In determining if a building is "potentially significant" or "significant" the Demolition Review Committee shall consider whether:

(1) The building is of such interest or quality that it would meet national, state or local criteria for designation as a historic, cultural or architectural landmark.

(2) The building is of such an unusual or uncommon design, texture or materials that it could not be reproduced or could be reproduced only with great difficulty and expense.

[Amended 3-12-2024 by Art. 3 (Am 4)]

(3) The building is of such historic, architectural or community value that its removal would be to the detriment of the public interest.

(4) Retention of the building would help preserve and protect a historic place or area of historic interest.

§ 190-5.10 Fences and walls.

[Added 3-14-2017; amended 3-10-2020 by Art. 3; 3-8-2022 by Art. 3; 3-14-2023 by Art. 3 (Am 6)]

All fences, walls, and similar enclosures, except trees, shrubs and natural vegetation, are subject to the restrictions of this section. For the purposes of this section, retaining walls (over three feet) and similar walls intended to hold earth shall not be considered fences, walls, or similar enclosures; instead, such retaining walls (over three feet) shall be considered structures and shall be subject to all setback requirements related to structures.

A. Permits. No fence or wall shall be erected or replaced prior to obtaining a permit from the Building Inspector, except wire or rail fencing for agricultural use, which is exempt from the permit requirement.

B. Common boundary line fences and wall permits. Common boundary line fences and walls are those placed along the common boundary line of properties. A common boundary line fence or wall permit application shall be signed by all property owners of the land involved. The permit shall hold the Town harmless from any disputes which may arise concerning such structures or the location of the boundary line.

C. Height. Fences and walls, other than retaining walls (over three feet), shall not exceed six feet in height.

D. Setback. All fences and walls, except common boundary line fences and walls, shall be located at least one foot from the property line. The applicant is responsible for establishing the boundary with a survey by a licensed New Hampshire surveyor.

E. Finished side. Any fence within 10 feet of a lot line shall have the finished side face the abutting properties, and the side of a fence containing the posts and other bracing appurtenances shall face inward to the property on which the fence is located. For common boundary line fences, the finished side(s) shall be as designated by the property owners in the application.

F. Sight distance. All fences and walls shall comply with the corner clearance requirements of Article II of this chapter.

G. Town rights-of-way. Erection of fences and walls within Town or state rights-of-way is prohibited. Fences abutting a right-of-way shall be set back at least one foot from the right-of-way line.

H. Applicability. This section shall apply to all fences erected or replaced after January 2, 2001.

§ 190-5.11 Solar energy systems.

[Added 3-11-2025 by Art. 3]

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

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

(1) Enable and promote the development of solar energy systems in appropriate locations in the Town of Rye, in a manner that:

(a) Minimizes disturbance of environmentally sensitive lands and the productive capacity of agricultural lands;

(b) Protects the character of Rye's semi-rural/rural and scenic lands, and considers historic properties and property values; and

(c) Protects the public's health, safety and welfare.

(2) Facilitate the goals of developing clean, safe, renewable energy resources in accordance with the enumerated policies of NH RSA 374-G and 362-F that include national security and economic and environmental sustainability.

(3) Encourage:

(a) The development of Solar Energy Systems; and

(b) Environmentally sensitive site selection, preparation, and design that avoids, minimizes, and mitigates adverse impacts related to excessive deforestation, soil disturbance, sensitive habitat loss, stormwater runoff, potential for erosion, visual impacts, and nuisance to residential neighborhoods.

C. Definitions.

DESIGNED TO PROVIDE ENERGY PRIMARILY FOR THE USE

Being designed to either be consumed by or credited toward all or a portion of the anticipated energy consumed on the property. The fact that energy actually generated by a solar energy system exceeds the energy consumed on the property shall not transform such a system into an Enterprise Solar Energy System (defined below).

ENTERPRISE SOLAR ENERGY SYSTEM

A system designed to generate energy for use off-site through connection to utility owned distribution or transmission lines or that is designed to generate more than the anticipated energy needs of the uses or structures on the property on which said system is located.

FREESTANDING SOLAR ENERGY SYSTEM

A ground-mounted solar energy system, including, but not limited to, fixed, passive or active tracking racking systems. These systems include a system mounted on top of a freestanding carport designed and constructed specifically for mounting a solar energy system over a parking lot.

INVERSION

The electrical conversion process to change direct current (DC) power to alternating current (AC) power. Solar voltaic panels generate direct current power that must be changed, i.e., inverted, to alternating current power that is transmitted to power lines and consumed by end users.

MULTIUNIT RESIDENTIAL OR NONRESIDENTIAL SOLAR ENERGY SYSTEM

A permissible on-site system that is designed to provide energy primarily for the use of a non-residential or residential dwelling structures containing three or more dwelling units.

RATED NAMEPLATE CAPACITY

Maximum rated alternating current (AC) output of solar collection system based on the combined capacity of the solar modules present in the system, measured in megawatts (MW) or kilowatts (KW).

ROOF- OR BUILDING-MOUNTED SOLAR ENERGY SYSTEM

A solar energy system attached to and supported by a building. These systems may include limited accessory equipment that is ground-mounted.

SHARED/COMMUNITY SOLAR ENERGY SYSTEM

A solar energy system that serves a group of local energy users situated on one or more separate lots, which are not necessarily contiguous, pursuant to a group net metering agreement, power purchase agreement, or similar agreement. These systems may be connected to privately owned distribution lines or utility-owned distribution or transmission lines.

SINGLE-FAMILY OR DUPLEX RESIDENTIAL SOLAR ENERGY SYSTEM

An on-site system that is designed to provide energy primarily for the use of a single-family or duplex residential dwelling structure or ancillary uses to same.

SOLAR ENERGY

Radiant energy, whether direct, diffuse, or reflected, received from the sun at wavelengths suitable for conversion into thermal or electrical energy.

SOLAR ENERGY SYSTEM

Equipment for the purpose of: (1) collecting solar energy; and (2) preparing that energy for use in relation to any use permitted under this Zoning Ordinance or authorized by Special Exception or Conditional Use Permit. A solar energy system includes all related equipment to generate, condition, store, and transfer energy for on-site use or for utilization and/or distribution onto the electrical grid. These systems include the following:

(1) Solar Photovoltaic Systems that convert sunlight into electricity through systems that include solar collection, inversion, storage and distribution; and

(2) Solar Thermal Systems, which are solar collection systems that directly heat water or other mediums using sunlight. Solar thermal systems are used for such purposes as space heating, domestic hot water, and heating pool water.

STORAGE SYSTEMS

These are arrays of batteries sized by application, as follows:

(1) Residential storage units are wall mounted units that can be installed inside or outside a home. These are not large but require access for installation and maintenance.

(2) Commercial storage units can be installed in a larger utility area or stand-alone units that may be combined with energy inversion equipment. Fire safety and spacing must be a consideration in location selection.

D. Uses by district.

P = Permit.

CUP = Conditional Use Permit.

X = Not applicable.

System Type	SRES*	GRES*	BUS*	COMM*	MF
Roof- or building-mounted	P	P	P	P	CUP
Freestanding single-family or duplex residential	P	P	P	X	X
Freestanding multiunit residential or nonresidential	X	X	CUP	CUP	CUP
Freestanding enterprise	X	X	CUP	CUP	CUP

NOTES:
*	Condos of 3 or more will require CUP; 2 or less will require a Building Permit.

(1) Roof- or building-mounted systems.

(a) Roof- or building-mounted systems are permitted on all buildings in all districts regardless of primary building use, subject to issuance of a building permit. Systems in the Historic District require the Historic District Commission's review and approval, as contained in § 190-3.3E(8) of this chapter. All systems shall comply with the following:

[1] All roof- or building-mounted systems shall comply with all relevant building and fire codes.

[2] When mounted on multifamily, commercial or industrial buildings, if any ancillary equipment for energy conversion, storage, or distribution will be ground-mounted (other than photovoltaic cells), said ancillary equipment shall be subject to the Town of Rye's Land Development Regulations[1] and said ancillary equipment shall be approved by the Town of Rye Planning Board, which may be approved as part of a non-residential minor development.

[1] Editor's Note: See Ch. 202, Land Development Regulations.

[3] Roof- or building-mounted systems shall comply with the zoning height standards in all districts; however, systems above the height requirement may be permitted by special exception per § 190-7.1A(3).

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

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

[1] Freestanding Solar Energy Systems shall be considered structures and shall comply with building setback requirements from lot lines for the entire system. All setbacks shall be measured from the point and time where the array is closest to the lot line. No portion of a Freestanding Solar Energy System may cross into any applicable lot line setback established under this chapter. Freestanding Solar Energy Systems shall constitute impervious coverage for the purpose of calculating lot coverage and said area shall be the aggregate surface area covered by impervious items. These items include, but are not limited to foundations, poles, ballast blocks, and ancillary ground-mounted equipment of the photovoltaic cells and any ancillary equipment. Any runoff created by the photovoltaic cells shall be mitigated using best engineering practices and shall comply with § 190-5.7.

[2] The location of Freestanding Solar Energy Systems shall be selected and prepared to minimize soil disturbance and grading. Systems shall not be sited in a manner that disturbs wetlands.

[3] All Freestanding Solar Energy Systems shall be sited to avoid encroachment into the Wetlands Conservation District as defined in § 190-3.1 of this chapter, and Protected Shoreland as defined in NH RSA 483-B:4, IV.

[4] Freestanding Solar Energy Systems shall not be sited in the 100-year Flood Zone.

[5] The Freestanding Solar Energy System, with the exception of Single-Family or Duplex Residential Solar Energy 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) Freestanding Solar Energy Systems that constitute Single-Family or Duplex Residential Solar Energy Systems (an on-site, accessory use) are permitted in the Single Residence, General Residence, and Business Districts subject to issuance of a building permit and the following:

[1] The system adheres to § 190-5.11D(2)(a)[1] through [6].

[2] When possible, systems shall be sited on slopes not to exceed 20% when measured in two-foot intervals and in locations that minimize the need for clearing of forest and site grading. All disturbed soils shall be properly stabilized and revegetated.

[3] Be located in a side or rear yard only.

[4] Not exceed 15 feet in height above the ground, except in the case of abutting single-story residence(s), which shall not to exceed a height of 10 feet above ground.

[5] Be screened from adjacent properties by fencing or a combination of evergreen and deciduous plantings. All disturbed soils shall be properly stabilized and revegetated.

(c) Freestanding Solar Energy Systems that constitute Multiunit Residential or Nonresidential Solar Energy Systems in the Commercial District are subject to the following:

[1] Multiunit Residential and Nonresidential Solar Energy Systems shall constitute Freestanding Solar Energy Systems and shall adhere to § 190-5.11D(2)(a)[1] through [6].

[2] Multiunit Residential and Nonresidential Solar Energy Systems shall be subject to Planning Board Review as a Multifamily residential or Nonresidential development and a Conditional Use Permit (CUP). All Multiunit Residential and Nonresidential Solar Energy Systems shall require a building permit.

[3] Multiunit Residential or Nonresidential Solar Energy Systems under this § 190-5.11D(2) may include Shared/Community Solar Energy Systems.

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

[5] The systems shall be located in the rear of the property between the building and rear property line when feasible. The systems shall adhere to all applicable buffer requirements set forth in § 190-2.2I. Systems may not be sited in the front of a building unless adequately screened, as determined by the Planning Board.

(d) Enterprise Solar Energy Systems not to exceed 5 MW AC of Rated Nameplate Capacity are permitted in the Business and Commercial Districts subject to the following:

[1] These systems may include Shared/Community Solar Energy Systems.

[2] Enterprise Solar Energy Systems shall adhere to § 190-5.11D(2)(a)[1] through [6] shall be subject to Planning Board review as a Nonresidential development and a Conditional Use Permit (CUP). All Enterprise Solar Energy Systems shall also require a building permit.

[3] Enterprise Solar Energy Systems shall constitute Freestanding Solar Energy Systems and shall adhere to § 190-5.11D(2)(a)[1] through [6]. The systems shall further adhere to all applicable buffer requirements set forth in § 190-2.2I.

[4] Systems sited on previously disturbed commercial or industrial properties, including brownfield sites, capped landfills, underutilized parking areas, and other underutilized commercial or industrial sites, may be approved pursuant to a Nonresidential development and a Conditional Use Permit (CUP), provided that:

[a] Compliance with standards set forth in § 190-5.11D(2)(a)[1] through [6] can be demonstrated;

[b] The site does not require clearing vegetation or soil disturbance in excess of what is necessary for providing access to the proposed site of the system, the placement of subsurface conduit, or the placement of accessory equipment;

[c] The site plan demonstrates that stormwater will be properly managed on the site and all disturbed soils on the site will be properly stabilized.

E. Solar collection system conditional use permit.

(1) General. Pursuant to RSA 674:21, the Planning Board is hereby authorized to grant a Conditional Use Permit for a solar collection system, provided that the Planning Board determines that the following conditions are met:

(a) The use is specifically authorized by § 190-5.11 of this chapter as a conditional use.

(b) The proposed use complies with all other applicable sections of this chapter.

(c) The proposed use will be developed in a manner compatible with the spirit and intent of this chapter.

(d) The applicant provides adequate surety of decommissioning as required by § 190-5.11F.

(e) The use will not endanger the health, safety, and welfare of the public.

(f) The proposed use will not result in undue municipal expense.

(g) The proposed use will not result in a diminution of surrounding property values.

(h) The proposed use will not adversely affect the capacity of existing or planned community facilities and services (including streets and highways).

(2) Fees. The Planning Board may require that the applicant provide data or reports prepared by a professional engineer to assess: the satisfaction of any of the criteria set forth in § 190-5.11F(1); any potential damage to the environment; or the impact to the safety and general welfare of the community that may result from the proposed use. The Planning Board shall engage such professional assistance as it requires to adequately evaluate such reports and to evaluate, in general, the proposed use considering the above criteria. Costs incurred shall be the responsibility of the applicant.

(3) Conditional use permit information requirements. In granting a conditional use permit for a solar collection system, the Planning Board may impose any reasonable conditions or restrictions deemed necessary to carry out the intended purpose of this section.

(a) Applications for a solar collection system conditional use permit shall be made in writing to the Planning Board. In addition to applicable site plan application requirements, the following supplemental information shall be submitted with the Conditional Use Permit application:

[1] A detailed Plan showing the following:

[a] Property lines, and physical and natural features of the site, including, but not limited to, existing trees and vegetation, roads, water bodies, wetlands, floodplains, etc.

[b] Total acreage of the property and total existing impervious cover, and the proposed impervious cover of the proposed solar energy system.

[c] Proposed changes to the landscape of the site, grading, vegetation clearing and planting, exterior lighting, screening vegetation or structures.

[2] Blueprints or drawings of the solar energy system showing the proposed layout of the system, any potential shading from nearby structures, proposed lighting, the distance between the proposed solar collector and all property lines, existing on-site buildings and structures, and the tallest finished height of the solar collector.

[3] Documentation of the major system components to be used, including panels, mounting system, inverter(s), batteries, if applicable, conduits and lines, and the point of interconnection with the electric utility grid.

[4] Name, address, and contact information of the proposed system installer, owner, applicant, and co-proponents or property owners, if any.

[5] A one- or three-line electrical diagram detailing the solar photovoltaic installation, associated components, and electrical interconnection methods.

[6] Landscaping Plan showing the location, height and spacing of existing vegetation to be preserved, and areas where new planting will be required. Buffer areas shall contain sufficient existing vegetation, as approved by the Planning Board, or be planted with evergreen type plantings of such height, spacing and arrangement as, in the judgment of the Planning Board, will effectively screen the solar energy system from neighboring areas.

[7] Stormwater management plan in accordance with the standards of Article IX of the Rye Land Development Regulations.[2]

[2] Editor's Note: See Ch. 202, Land Development Regulations.

[8] Fencing. Fencing shall be installed as required by the National Electric Code or Utility. Additional security or fencing may be required if the location of the system presents a safety concern for abutting land uses.

[9] Operation and Maintenance Plan prepared by a licensed engineer for Multiunit Residential and Nonresidential Solar Energy Systems at or above 100 kW, and Enterprise Solar Energy Systems including Shared/Community Solar Energy Systems.

[10] Emergency Response Plan (ERP) for Multiunit Residential and Nonresidential Solar Energy Systems, and Enterprise Solar Energy Systems including Shared/Community Solar Energy Systems. The solar energy system owner or operator shall provide a copy of the project summary, electrical schematic, and Site Plan to the Rye Fire Chief and Rye Police Chief. All means of shutting down the solar energy system shall be clearly described in the ERP. The owner or operator shall identify a responsible person for public inquiries throughout the life of the installation and operation.

§ 190-5.12 Effluent disposal systems.

[Added 3-11-2025 by Art. 3]

All dwellings and all commercial, public or industrial buildings shall be provided with adequate and sanitary effluent disposal systems. Wherever, or so long as, a public sewer is not available, a private effluent disposal system shall be installed on the lot subject to the following requirements:

A. Effluent disposal systems permits. No building permit shall be issued by the Building Inspector when the use of an effluent disposal system is proposed until:

(1) Pit and percolation tests have been completed in accordance with the standards of § 190- 5.11B(1).

(2) The New Hampshire Department of Environmental Services has approved detailed plans for the effluent disposal system.

(3) Such plans and the installation concerned comply with the requirements of this chapter and Chapter 35, the Building Code.

B. Effluent disposal system siting requirements.

(1) Test pits. In selecting the location for a proposed effluent disposal system, test pits shall be dug as follows:

(a) Test pits shall be dug to at least 10 feet depth or refusal; and shall not be performed between June 15 and September 15 unless waived by the Building Inspector.

(b) The number of test pits shall be determined by the designer but in no event shall fewer than two test pits be dug at each effluent disposal site to reliably indicate the nature of the receiving soils. Test pits for replacement effluent disposal systems shall be governed by state requirements.

(c) Test pits shall be located within the proposed effluent disposal area, and the two test pits shall be spaced at least 30 feet apart. Test pits for replacement effluent disposal systems shall be governed by state requirements.

(d) Test pits shall be witnessed by the Building Inspector or an authorized representative.

(e) All holes dug to test the soil except for holes dug to determine a wetland boundary shall be considered test pits. All shall be logged and the data submitted to the Building Inspector.

(f) All other rules and procedures governing test pits and percolation tests prescribed by the New Hampshire Department of Environmental Services in New Hampshire Administrative Rules Chapter Env-Wq 1000 for individual effluent disposal systems shall apply.

(2) Ledge lots.

(a) Definition.

LEDGE LOT

Is any lot where one of the following conditions exists:

[1] The existence of ledge within six feet of the surface is indicated on the approved plan either within the designated leach field area (DLA) or within 75 feet of it; or

[2] Test pits and/or ledge probes indicate the presence of ledge within six feet of the surface either under or within 75 feet of the proposed effluent disposal area (EDA).

(b) Requirements for siting effluent disposal systems on ledge lots.

[1] The Building Inspector may require additional test pits and/or ledge probes in order to determine whether a lot is or is not a ledge lot.

[2] Septic systems proposed for ledge lots require special review to determine that the system will properly function. Prior to approval of septic systems located on ledge lots, the Town shall have the design reviewed by an independent New Hampshire licensed septic designer or licensed civil engineer, at the applicant's expense, in order to determine that the proposed system will properly function. Additional test pits and/or ledge probes may be required as part of the review of the proposed system. The Building Inspector shall make the final determination as to the approval of a septic system on a ledge lot.

(3) Wetlands. Effluent disposal systems are prohibited in the protected wetlands of § 190-3.1A(1) and wetlands buffer of § 190-3.1H of this chapter.

(4) Systems on different lots. Septic systems shall be located on the same lot as the building which they service for all new construction, as defined by Subsection F. Replacement septic systems may be located on a different lot, provided all of the following criteria are met:

(a) The effluent disposal system cannot be located on the same lot.

(b) An easement which runs with the land is granted for the septic system. The easement shall be reviewed and approved by Town Counsel.

(c) The easement adequately provides for the maintenance, repair and replacement responsibilities for the system.

(d) It is determined that the septic system will not affect any other septic system on the lot.

(e) It is determined that the septic system will not constrain future building and development on the lot or, if the system will constrain future building and development on the lot, adequate restrictions on such building and development are imposed by the easement.

(5) Flooding. All new effluent disposal systems shall be located so as to avoid impairment to them or contamination from them during flooding.

(6) Mounding. If mounding is required for an on-site waste disposal system, the mounding shall not cause an increase in surface runoff onto adjacent properties.

(7) Setbacks. Effluent disposal systems shall be set back 20 feet from side and rear lot boundaries and 10 feet from the front boundary. Appeals for variance from this requirement shall be accompanied by a survey plan clearly identifying the encroachment.

C. Design criteria. Effluent disposal systems shall be designed to meet the following requirements. Fill may be added to meet the standards imposed by this section.

(1) The bottom of the proposed effluent disposal area shall be a minimum of eight feet above the top of any bedrock or impermeable substratum unless there is a municipal or state-approved community water supply, in which case, the distance to bedrock or impermeable substratum may be reduced to six feet to meet this requirement.

(2) The bottom of the proposed effluent disposal shall be a minimum of four feet above the seasonal high water table.

D. Prohibited conditions.

(1) The following are considered unsuitable for the disposal of septic and effluent and may not be remediated by the addition of fill, blasting, excavating or other methods:

(a) The wetlands of § 190-3.1A(1) and wetlands buffer of § 190-3.1H of this chapter except replacement of existing septic systems pursuant to § 190-3.1H(2)(b) of this chapter.

(b) Soils with a seasonal high water table at or within 24 inches of the surface.

(c) Soils where bedrock or impervious substratum is within 36 inches of the surface.

(d) Any land having a natural slope of 15% or greater.

(e) Soils with a percolation rate greater than 60 minutes per inch.

(f) Poorly drained or very poorly drained soils.

(2) Exceptions. Existing septic system in the above-described areas may be replaced in accordance with state requirements.

E. Standard document. All subsurface effluent disposal systems must be designed and constructed to meet the minimum standards set forth in New Hampshire Administrative Rules Chapter Env-Wq 1000.

F. New construction standards. Whenever any of the following circumstances exist, septic application including plans and specifications which meet new construction standards shall be required unless a valid construction and operating approval exists and the total sewage load will not be increased:

(1) New construction, including demolition/reconstruction of an entire building, even if there is no expansion.

(2) Increase in number of bedrooms, including converting existing rooms to additional bedrooms.

(3) Seasonal or temporary structure converted to year-round use. Occupancy for more than six months in any year is considered year-round use.

(4) Expansion of the existing dwelling area, excluding decks, open porches and other unenclosed areas.

(5) Expansion or change of use, conversion of use from residential to commercial use, and conversion from residential use to residential plus commercial use.

(6) Any and all other modifications, additions to, or replacement of an existing building which would result in a substantial increase in sewage load.

(7) Whenever an approval for a new design has been obtained pursuant to this section, the new design shall be installed as a condition of issuance of the building permit for construction or change of use unless specifically waived by the Building Inspector and so noted on the construction permit. Waiver by the Building Inspector must be accompanied by a report from a professional of competent authority certifying that the existing system is in good working order and that failure is not anticipated due to the change proposed. The new design shall be installed if the existing system fails or is for any reason to be repaired or replaced.

G. Existing effluent disposal systems. Effluent disposal systems serving existing buildings may be repaired or replaced in accordance with state requirements. In such circumstances, the Building Inspector is authorized to waive any requirements of this Building Code which are stricter than state requirements, provided the requirements of Subsection F do not apply.