This article shall be known and may be cited
as the "Growth Management Ordinance (GMO) of the Town of Derry, New
Hampshire."
The Growth Management Ordinance (GMO) is enacted
pursuant to the authority granted under RSA 674:16, 674:17, 674:21,
674:21-a and 674:22.
The Planning Board hereby finds that Derry's
short-term fiscal situation requires that a temporary building permit
limitation be established. Derry's schools have been found to be overcrowded
and inadequate for its existing student population. Seven hundred
students are now being educated in temporary or portable facilities.
The state has required Derry to construct new school facilities anticipated
to cost $15,000,000. These facilities are required in spite of the
fact that Derry has recently constructed a new middle school, and
in spite of the fact that Derry has one of the highest property tax
rates in the State of New Hampshire and the highest rate in Rockingham
County. The Planning Board also recognizes the uncertainty now attending
New Hampshire's system of funding public education. Derry currently
has approximately 120 outstanding and unissued single-family residential
building permits which, if used, will exacerbate an already overcrowded
school situation. Additionally, Derry's short-term capital needs must
consider the design and implementation of a viable transportation
infrastructure for Derry's core community and industrial/commercial
development needs. The Planning Board finds that these needs must
be met as a priority among Derry's capital improvement requirements
and has prepared a Capital Improvement Plan reflecting this priority.
Accordingly, and in anticipation of additional submissions of residential
plans and permit applications, the Planning Board hereby establishes
this temporary building permit limitation and permit allocation system
pursuant to RSA 674:22.
A. No more than 50 building permits for residential housing
units shall be issued in any year until the expiration of this temporary
building permit limitation.
(1) Building permits shall be allocated based upon the
following classes of priority:
(a)
Building permits for subdivisions or developments approved and otherwise eligible for the basic development right pursuant to §
165-116A below.
(b)
Other building permit applications, if any.
(2) Lots which are exempted pursuant to RSA 674:39 and
676:12, V, or which are covered under legal settlement agreements
with the Town pertaining to their status as vested lots shall not
be affected by this provision, nor shall building lots legally existing
as of the date of first posting of this article for public hearing,
June 5, 1998, which otherwise conform to this chapter and as to which
a single residential unit building permit is applied for. The provisions
of this section shall not apply to housing for older persons under
RSA 354-A:15 and supported residential care facilities under RSA 151
and New Hampshire Code of Administrative Rules He-P 805.
(3) For purposes of establishing allocation priorities,
permits shall be issued quarterly, commencing on the first days of
July, October, January and April in each fiscal year, on the basis
of a pro rata allocation of then-available permits on a first-come-first-served
basis until exhausted. All permits available in any quarter shall
be available for issuance as of the first day of such quarter. Any
unused building permits in any quarter shall be included in the next
quarter's allocation. Authorized but unissued building permits in
any year shall be carried forward and be additional to the next fiscal
year's building permit allocation.
(4) Permits shall be allocated pro rata based upon the number of applicants in each class, as defined in Subsection
A(1) above, up to the maximum allowable permits in any quarter. Each eligible applicant shall receive at least one building permit until the respective allocation is exhausted. If the relevant allocation would be exhausted, the available permits shall be allocated within each class, based upon the date and time of application filing, until exhausted. Eligible applicants who applied for building permits and were unable to receive at least one permit in each allocation shall receive priority over other applicants in the class for the next occurring allocation.
B. This permit limitation provision shall expire in four years; provided, however, that the Planning Board shall annually review and act upon this limitation as described in Subsection
C below, and further provided that the Planning Board may reimpose such building permit limitation for a period(s) not to exceed one year if it determines that conditions are such that prospective growth, based upon the number of approved but unbuilt residential lots that are then available to be built and/or the anticipated applications for additional residential building lots, will cause conditions which threaten a short-term and significant disruption of the Town's Growth Management Plan. Conditions which the Planning Board may consider are:
(1) Availability of excess school capacity of 10% or less.
(2) Projected residential growth, based on building permits
issued, which would exceed 5% over the previous year for two years
in a row or 7% in any year.
(3) Conditions of failure as determined by the Public
Works Director or the State of New Hampshire Department of Transportation
(NHDOT) of the Town's major arterial intersections:
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Ross' Corner
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Crystal Avenue and Broadway
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Shute's Corner
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Route 93 Exit 4 Interchange
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Webster's Corner
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Intersection of Fordway Extension and Route
102
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Route 102 Rotary
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Intersection of Route 28 By-pass and Tsienneto
Road
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Intersection of Tsienneto Road and Route 102
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C. Review.
(1) Any permit limitation imposed shall be reviewed annually
in April of each year starting with April of the year following the
adoption of this article by the Planning Board, which shall consider
whether:
(a)
Based on a report of the Derry School District,
sufficient school capacity is available with reserve or excess capacity
sufficient to meet the projected three-year growth in student population,
considering building permits eligible to be issued pursuant to exemptions
contained herein plus the number equal to the maximum number of permits
allowed under this section;
(b)
Based upon a report of the Town's Public Works Director the conditions of failure specified in Subsection
B(3) above have been alleviated or will be alleviated within the ensuing 12 months; and
(c)
Residential growth for the previous two years
did not exceed 5% over the previous year for two years in a row or
7% in any year.
(2) In the event the Planning Board shall find as provided in Subsection
C(2)(a) or
(b) below, the Planning Board shall, in the case of Subsection
C(2)(a), or may, in the case of a finding under Subsection
C(2)(b), suspend the permit limitation effective on the first day of the month following the finding or increase the number of permits to be issued for the next succeeding twelve-month period, as conditions warrant. Annual periods described in this section shall run from July 1 to June 30.
(b)
The Planning Board is satisfied that the improvements specified in the Capital Improvement Program for the next ensuing three years will be adequate to satisfy Subsection
C(1)(a) above and provide reasonable relief from the conditions set forth in Subsection
C(1)(b) and
(c) above so as to avoid dangers to the health, safety or welfare of the community.
Special permits shall be exercised in accordance
with the following:
A. Thirty percent of the residential lots or units approved in the special permit pursuant to §
165-115C(2) (but not to exceed 21 lots or units) shall be deemed to be units for which the applicant shall be entitled to basic development right. The Planning Board may designate which lot(s) shall be allocated to the basic development right so as to provide for orderly development of the project and to minimize its impact upon municipal facilities or services. In case computations hereunder result in fractional units, the number of units shall be rounded to the next lowest whole number.
(1) Such basic development right shall entitle the applicant to building permits for up to 1/3 of the units covered by such basic development right in the year of plan approval or five units, whichever is greater. The remainder of such basic development right building permits shall be issued in equal installments in each of the next two succeeding years until the basic development right is exhausted (based upon the Town's fiscal year). Such basic development right may only be exercised if the subdivision or site plan meets all conditions of approval, including the posting of a performance bond or other security as required by law or under Chapter
170, Land Development Control Regulations. The Planning Board, in establishing the performance bond or other security, may provide for phasing of such security in conjunction with the timing of the issuance of building permits under either this basic development right or the additional development right set forth in Subsection
B. Basic development right building permits not applied for during such period may be subsequently issued in any year thereafter unless the provisions of §
165-114 are applicable.
(2) The applicant's basic development right shall be subject to and further limited by the provisions of any temporary permit limitation set forth in §
165-114 herein, and the right to exercise such basic development right shall be extended in such case until exhausted or until any temporary permit limitation has expired.
B. The balance of the applicant's special permit shall be allocated to the applicant's additional development right. Such right shall entitle the applicant to a building permit for each such residential unit only at such time as the development shall have the required number of points under §
165-115C(2).
(1) As part of such Planning Board approval of the special permit, the Planning Board shall determine the year in which such additional development right shall be exercisable, based upon its finding as to that year that the development would attain the required number of points under §
165-115C(2). In making such determination the Planning Board shall consider the scheduled completion date of those capital improvements which it determines would be required in order to attain the requisite number of points as set forth in the Capital Improvement Plan then in effect. In the event any such capital improvements are completed in advance of the time schedule set forth in such Capital Improvement Plan, the Planning Board shall, upon request, review its finding and, if the requisite points are then available, advance the date when the additional development right shall be exercisable. Such additional development rights shall be vested at the time of Planning Board approval pursuant to §
165-115C(2) herein but shall not be exercisable until the time set forth above.
(2) The Planning Board may, as part of such approval,
require the phasing of such additional development rights at the time
of exercise, depending upon the scope of the project and other off-site
impacts or improvements required to accommodate the project. Such
phasing may be required over a maximum three-year period in the discretion
of the Planning Board.
(3) Nothing herein shall limit the authority of the Planning Board contained in §
165-114 to limit the issuance of building permits available under this Subsection
B in times where temporary residential permit limitations under §
165-114 above are in force.
Appeal of decisions of the Planning Board under
this article shall be made to Superior Court pursuant to RSA 677:15.
The fee for each special permit application pursuant to this article to the Planning Board shall be as set forth in Chapter
170, Land Development Control Regulations, payable at the time of said application, and is not refundable.
To the extent deemed appropriate, the Planning
Board may adopt regulations implementing this article pursuant to
RSA 674:36, RSA 674:44, RSA 676:4, I(a) and (b), and RSA 676:4, II
and III.