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The purpose of this section is to provide
uniform procedures for the amendment of this chapter or the Official
Zoning Map by the Board of Aldermen whenever the public necessity,
convenience, general welfare or good zoning practice so requires.
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A.
Applicability. This section applies to an action by the Board of Aldermen to amend, supplement or change the regulations, restrictions or district boundaries herein established or subsequently established. Requests for rezoning shall follow the submittal requirements set out in Article XLIII. This shall be done only after reference to the Planning Board and to the aldermanic Planning Committee.
B.
Decision. The aldermanic Planning Committee shall
conduct a public hearing for the Board of Aldermen and shall submit
its report and recommendation to the Board of Aldermen. A supermajority
vote is required where a protest petition is filed pursuant to RSA
675:5.
C.
Approval guidelines. Rezonings or text amendments are subject to the following guidelines listed in Subsections C(1) and (2) under New Hampshire law. The purpose of this section is not to limit or restrict the items required for a valid rezoning under New Hampshire law, but rather to provide guidance to applicants, the Planning Board and the Board of Aldermen in considering a proposed rezoning or text amendment.
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Purpose: Conditional use permits are
authorized by RSA 674:21 II as an innovative land use control. Conditional
use permits are like special exceptions in that they require discretionary
public hearings for designated uses. Unlike special exceptions, the
decision maker is the Planning Board rather than the ZBA.
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A.
Applicability. This section applies to any building, structure or use designated as a conditional use in the Use Matrix (§ 190-15, Table 15-1), or to any other building, structure or use designated as a conditional use by this chapter. No such building, structure or use shall be established unless and until a conditional use permit is approved as provided in this section.
B.
Initiation. An application for a conditional use permit
shall be filed with the Administrative Officer. The application may
be combined with, and processed concurrently with, an application
for site plan, or subdivision review.
C.
Completeness review. The Administrative Officer shall conduct a completeness review as set forth in § 190-125 of this chapter. The appellate agency for purposes of completeness review (See § 190-125C of this chapter.) shall be the Planning Board. Upon certification by the Administrative Officer that the application is complete and payment of required fees, the application shall be deemed complete and referred to the Planning Board for its review and decision.
E.
Decision. The Planning Board shall render a decision
approving, approving with conditions or denying the conditional use
permit after conducting a public hearing. The hearing may be conducted
concurrently with the site plan review hearing.
F.
Approval criteria. Following a public hearing on the
proposed use, the Planning Board shall issue a conditional use permit,
if it finds, based on the information and testimony submitted with
respect to the application, that:
(1)
The building, structure or use is specifically authorized by the Use Matrix, § 190-15, Table 15-1, as a conditional use;
(2)
If completed, the development in its proposed location
will comply with all requirements of this article, and with specific
conditions or standards established in this chapter for the particular
building, structure or use;
(3)
The building, structure or use will not materially
endanger the public health or safety;
(4)
The building, structure or use will not substantially
devalue abutting property;
(5)
The building, structure or use will be compatible
with the neighborhood and with adjoining or abutting uses in the area
in which it is to be located;
(6)
The building, structure or use will not have a substantial
adverse impact on highway or pedestrian safety;
(7)
The building, structure or use will not have a substantial
adverse impact on the natural and environmental resources of the City;
and
(8)
Adequate public utilities and community facilities
are available to the property to ensure that the proposed use will
not necessitate excessive public expenditures in providing public
services.
(9)
That the use of on-street parking in the downtown
zoning districts is consistent or compatible with the existing use
of on street parking in the area.
[Added 10-23-2007 by Ord. No. O-07-120]
G.
Amendments. An amendment to a conditional use permit
may be approved in the same manner as an application for a new conditional
use permit.
H.
Scope of approval. A conditional use permit shall
authorize the applicant to apply for approval of a site plan or subdivision
plan, if required, and a building permit and certificate of use and
occupancy. Conditions to a conditional use permit shall not be reduced
or eliminated unless a new notice is provided prior to the final decision.
I.
Recording procedures. All conditional use permits
shall be filed with the Administrative Officer.
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Purpose: Special exceptions are authorized
by RSA 674:33.IV. Special exceptions are like conditional uses in
that they require discretionary public hearings for designated uses.
Unlike conditional uses, the decision maker is the Zoning Board of
Adjustment rather than the Planning Board.
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A.
Applicability. This section applies to any building, structure, use or activity designated as a special exception by this chapter. The Zoning Board of Adjustment shall have power to hear and decide on applications for special exceptions to the terms of this Part 3 upon which the Board is required to pass. No such building, structure, use, or activity shall be established unless and until a special exception is approved as provided in this section.
B.
Initiation. An application for a special exception
shall be filed with the Administrative Officer.
C.
Completeness review. The Administrative Officer shall conduct a completeness review as set forth in § 190-125 of this chapter. Upon certification by the Administrative Officer that the application is complete and payment of required fees, the application shall be deemed complete and referred to the Zoning Board of Adjustment for its review and decision.
E.
Decision.
(1)
The Zoning Board of Adjustment shall render a decision
approving, approving with conditions or denying the special exception
after conducting a public hearing.
(2)
The Zoning Board of Adjustment may approve certain items designated as "special exception for minor encroachments" in § 190-16E(3) on a consent agenda. The hearing for each item placed on the consent agenda, and not removed prior to the hearing, shall be conducted concurrently. The application for approval of a special exception, any staff report, notices, and any comments submitted relating to the application shall become part of the record for any consent agenda item.
F.
Approval criteria.
(1)
In applying for a special exception, the applicant
need not demonstrate hardship, since the basis for the action is of
general benefit to the City as a whole. In granting a special exception,
the Zoning Board of Adjustment, with due regard to the nature and
condition of all adjacent structures and uses, and the district within
which the same is located, shall find all of the following general
conditions to be fulfilled:
(a)
The requested use is listed as a special exception in the Use Matrix (§ 190-15, Table 15-1) or is permitted as a special exception by another provision of this chapter;
(b)
The requested use will not create undue traffic
congestion or unduly impair pedestrian safety;
(c)
The requested use will not overload any public
water, drainage or sewer system, or any other municipal system to
such an extent that the requested use or any developed use in the
immediate area or in any other area of the City will be unduly subjected
to hazards affecting health, safety or the general welfare;
(d)
Any special regulations for the use set forth
in this article are fulfilled; and
(e)
The requested use will not impair the integrity
or be out of character with the district or immediate neighborhood
in which it is located, nor be detrimental to the health, morals,
or welfare of the residents of the City.
(2)
Upon finding all of the above conditions to be fulfilled,
the Zoning Board of Adjustment must grant the special exception. In
approving or denying special exceptions, the Zoning Board of Adjustment
shall state all its reasons for approval or denial in writing to the
applicant, a copy of which will be kept on file as a matter of public
record in the Administrative Officer's office.
G.
Amendments. An amendment to a special exception may
be approved in the same manner as an application for a new special
exception.
H.
Scope of approval. A special exception shall authorize
the applicant to apply for approval of a site plan or subdivision
plan, if required, and a building permit and certificate of use and
occupancy. The time frame for the validity of any special exception
shall be the minimum required by NH RSA 674:33 or any successor statute.
Any time to appeal a determination as to completeness of an application
does not count toward the validity period.
[Amended 2-10-2015 by Ord. No. O-14-037]
I.
Recording procedures. All special exceptions shall
be filed with the Administrative Officer.
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Purpose: The purpose of this section is to permit innovative land use controls, as authorized by RSA 674:21, in the timing of the Planning Board recommendation on a rezoning request and providing for the concurrent, conditional approval or disapproval of one or more site plans. A subdivision request shall accompany a site plan in any case in which a subdivision would be present. It is the intent of this section to provide for a streamlined review process that ensures quality, attractive, and compatible development in accordance with the general purposes of the City's Zoning Ordinance and the Master Plan. This section is intended to serve as an alternative procedure for seeking rezoning and is not intended to supersede § 190-132. This section implements the following Master Plan policies:
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•
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Consider an amendment to the Nashua
City Code to allow incentive zoning in targeted areas (i.e., the City
would allow residential density in excess of that permitted in the
existing or underlying zoning, and require that a certain percentage
of additional units be affordable).
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•
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Consider a streamlined and creative
review and approval process for industrial uses.
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A.
Applicability. This procedure may be applied to any
of the following:
(2)
Any rezoning to a PI or GI Zoning District in which
the Planning Board determines that the proposed development will generate
significant increases in jobs or employment, establish a base industry,
or generate significant increases in tax revenues without requiring
significant public expenditures for services and infrastructure; or
(3)
Any other situation in which this chapter expressly
authorizes a concurrent rezoning and site plan approval pursuant to
this section. [Examples: Flexible Use District]
B.
Initiation. After or contemporaneously with the introduction
to the Board of Aldermen of legislation amending the Zoning Ordinance
in order to accommodate the contemporaneous review, the applicant
shall submit, at a minimum, two separate and completed applications
to the Administrative Officer containing the following information,
documents and maps. An incomplete application or unsatisfactory study
or report, shall be cause for not placing the item on the Planning
Board agenda. Prior to submitting an application, the applicant is
required to have a preapplication meeting with the Administrative
Officer or designee.
D.
Notice. Abutter notice and public posting of the Planning Board meeting for requests under this section shall comply with all notice requirements for both a rezoning action and for a site plan approval, and for any subdivision request if necessary. See § 190-126 for notice requirements.
E.
Decision.
(1)
Meeting. The Planning Board may receive testimony
or evidence on both the rezoning and the site plan at the same time,
provided that the decision/recommendation on each shall be separate
and shall be made relative to the criteria pertinent to each type
of review.
(2)
Enforcement of conditions. In order to enforce the
conditions relating to the rezoning and site plan approval, the Administrative
Officer and legal department will prepare, or cause the developer
to prepare, to their satisfaction a development agreement containing
at a minimum any Planning Board conditions of approval of the site
plan. The agreement shall be signed by the applicant/owner of property
prior to scheduling final Board of Aldermen action on the rezoning.
The City may require proof of ownership interests or encumbrances
prior to the execution of the agreement. Any site plan/subdivision
approval shall be contingent upon the approval of the development
agreement and rezoning.
A.
Applicability. This section applies to any appeal
of a decision of the Administrative Officer filed pursuant to RSA
676:5.
B.
Initiation. A notice of appeal shall be filed with the Zoning Board of Adjustment within the time period prescribed by the Zoning Board of Adjustment pursuant to RSA § 676:5.I. The appeal shall contain a written statement of the reasons for which the appellant claims the final decision is erroneous. The appeal shall be accompanied by a fee established by the Board of Aldermen in Article XLIII.
C.
Completeness review. In order to avoid a conflict
of interest, no completeness review shall be conducted by the Administrative
Officer. The Administrative Officer shall forthwith transmit to the
Zoning Board of Adjustment all the papers constituting the record
upon which the action appealed from was taken.
E.
Decision.
(1)
The ZBA shall hear and decide de novo and review on
appeal any order, requirement, decision or determination made by the
Administrative Officer in the enforcement or application of this article.
(2)
Every rule or regulation, every amendment or repeal
thereof and every order, requirement, decision or determination of
the Board shall immediately be filed in the office of the Administrative
Officer and become a public record. The Board shall file with the
City Clerk for distribution as necessary a complete record of the
minutes of their meetings and public hearings. Included in the minutes
shall be the reasons for the granting or denying of a request for
a variance, together with the vote of each member on each item on
the agenda. The Board shall also forward to the City Clerk a copy
of their agendas prior to their meetings.
(3)
Pursuant to RSA 674:33, the Zoning Board of Adjustment
may reverse or affirm, wholly or in part, or may modify the order,
requirement, decision, or determination appealed from and may make
such order or decision as ought to be made and, to that end, shall
have all the powers of the administrative official from whom the appeal
is taken.
(4)
The concurring vote of three members of the Board
shall be necessary to reverse or modify any order, requirement, decision
or determination of the administrative official or to decide in favor
of the applicant on any matter on which it is required to pass.
F.
Scope of approval. The granting of an appeal by the
Zoning Board of Adjustment shall not exempt the applicant from any
provision of this article not specifically ruled upon by the Board
or specifically set forth as accepted in this particular case by a
provision of this article.
G.
Recording procedures. A record of the appeal including
the notice of appeal and the decision of the Zoning Board of Adjustment
shall be maintained by the Administrative Officer.
[1]
Editor's Note: The purpose paragraph of this
section was deleted 2-26-2008 by Ord. No. O-08-07.
A.
Applicability. This section applies to any request for a variance for a particular use or parcel of land or to an existing building thereon from the terms of Part 2.
B.
Initiation. A notice of appeal requesting a variance shall be filed with the Zoning Board of Adjustment within the time period prescribed by the Zoning Board of Adjustment pursuant to RSA 676:5. The appeal shall contain a written statement of the reasons for which the appellant claims the final decision is erroneous. The appeal shall be accompanied by a fee established by the Board of Aldermen in Article XLIII.
E.
Decision. The ZBA may on appeal authorize a variance for a particular use or parcel of land or to an existing building thereon from the terms of this article where, owing to the conditions especially affecting such parcel or such building, but not affecting generally the district in which it is located, a literal enforcement of this Part 3 would result in unnecessary hardship to the appellant, and where desirable relief may be granted without substantial detriment to the public interest and without nullifying or substantially derogating from the intent or purpose of this article. In granting variances, the Board, if it deems it proper to the carrying out of the intent and purpose of this article, may impose such reasonable and additional stipulations and conditions as will, in its judgment, better fulfill the purpose of this article. In denying variances the Board shall state fully its reasons for denial in writing to the applicant.
F.
Approval criteria.
(1)
Pursuant to RSA 674:33, the Zoning Board of Adjustment may authorize a variance from the terms of Part 2 if:
(a)
The variance will not be contrary to the public
interest;
(b)
Special conditions exist such that literal enforcement
of the ordinance results in unnecessary hardship;
(c)
The variance is consistent with the spirit of
the ordinance;
(d)
Substantial justice is done;
(e)
The variance does not diminish the value of
surrounding properties.
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Comment: See Boccia v. City of Portsmouth,
151 NH 85 (2004), Simplex Technologies v. Town of Newington, 145 N.H.
727, 731-32, 766 A. 2d 713 (2001).
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(2)
Pursuant to RSA 674:33, the Zoning Board of Adjustment
may grant a variance from the terms of a Zoning Ordinance without
finding a hardship arising from the condition of a premises subject
to the ordinance, when reasonable accommodations are necessary to
allow a person or persons with a recognized physical disability to
reside in or regularly use the premises, provided that:
(a)
Any variance granted under this paragraph shall
be in harmony with the general purpose and intent of the Zoning Ordinance.
(b)
In granting any variance pursuant to this subsection,
the Zoning Board of Adjustment may provide, in a finding included
in the variance, that the variance shall survive only so long as the
particular person has a continuing need to use the premises.
G.
Amendments. It is unlawful for any owner or person
to reconstruct, convert or alter a structure or change the use, increase
the intensity of use, or extend or displace the use of any building,
other structure or lot, or change any required limitations or special
conditions imposed by the Board in authorizing a variance without
appealing to the Board as a new case over which the Board shall have
complete administrative power to deny, approve or modify.
H.
Scope of approval. The granting of an appeal by the
Board shall not exempt the applicant from any provision of this chapter
not specifically ruled upon by the Board or specifically set forth
as accepted in this particular case by a provision of this chapter.
The time frame for the validity of any variance shall be the minimum
required by NH RSA 674:33 or any successor statute. Any time required
to appeal a determination as to completeness of that application does
not count toward the validity period.
[Amended 2-13-2007 by Ord. No. 0-06-71; 2-10-2015 by Ord. No. O-14-037]
I.
Recording procedures. A record of the appeal including
the notice of appeal and the decision of the Zoning Board of Adjustment
shall be maintained by the Administrative Officer.
[1]
Editor's Note: The purpose paragraph of this
section was deleted 2-26-2008 by Ord. No. O-08-07.
