674:21 Innovative Land Use Controls. –
(a) Timing incentives.
(b) Phased development.
(c) Intensity and use incentive.
(d) Transfer of density and development
rights.
(e) Planned unit development.
(f) Cluster development.
(g) Impact zoning.
(h) Performance standards.
(i) Flexible and discretionary zoning.
(j) Environmental characteristics zoning.
(k) Inclusionary zoning.
(l) Accessory dwelling unit standards.
(m) Impact fees.
(n) Village plan alternative subdivision.
II. An innovative land use control adopted under RSA 674:16
may be required when supported by the master plan and shall contain within it
the standards which shall guide the person or board which administers the
ordinance. An innovative land use control ordinance may provide for
administration, including the granting of conditional or special use permits,
by the planning board, board of selectmen, zoning board of adjustment, or such
other person or board as the ordinance may designate. If the administration of
the innovative provisions of the ordinance is not vested in the planning board,
any proposal submitted under this section shall be reviewed by the planning
board prior to final consideration by the administrator. In such a case, the
planning board shall set forth its comments on the proposal in writing and the
administrator shall, to the extent that the planning board's comments are not
directly incorporated into its decision, set forth its findings and decisions on
the planning board's comments.
III. Innovative land use controls must be adopted in
accordance with RSA 675:1, II.
IV. As used in this section:
(a) ""Inclusionary zoning''
means land use control regulations which provide a voluntary incentive or
benefit to a property owner in order to induce the property owner to produce
housing units which are affordable to persons or families of low and moderate
income. Inclusionary zoning includes, but is not limited to, density bonuses,
growth control exemptions, and a streamlined application process.
(b) ""Accessory dwelling unit''
means a second dwelling unit, attached or detached, which is permitted by a
land use control regulation to be located on the same lot, plat, site, or other
division of land as the permitted principal dwelling unit.
V. As used in this section ""impact fee'' means a
fee or assessment imposed upon development, including subdivision, building
construction or other land use change, in order to help meet the needs occasioned
by that development for the construction or improvement of capital facilities
owned or operated by the municipality, including and limited to water treatment
and distribution facilities; wastewater treatment and disposal facilities;
sanitary sewers; storm water, drainage and flood control facilities; public
road systems and rights-of-way; municipal office facilities; public school
facilities; the municipality's proportional share of capital facilities of a
cooperative or regional school district of which the municipality is a member;
public safety facilities; solid waste collection, transfer, recycling,
processing and disposal facilities; public library facilities; and public
recreational facilities not including public open space. No later than July 1,
1993, all impact fee ordinances shall be subject to the following:
(a) The amount of any such fee shall be a
proportional share of municipal capital improvement costs which is reasonably
related to the capital needs created by the development, and to the benefits
accruing to the development from the capital improvements financed by the fee.
Upgrading of existing facilities and infrastructures, the need for which is not
created by new development, shall not be paid for by impact fees.
(b) In order for a municipality to adopt
an impact fee ordinance, it must have enacted a capital improvements program
pursuant to RSA 674:5-7.
(c) Any impact fee shall be accounted for
separately, shall be segregated from the municipality's general fund, may be
spent upon order of the municipal governing body, shall be exempt from all
provisions of RSA 32 relative to limitation and expenditure of town moneys, and
shall be used solely for the capital improvements for which it was collected,
or to recoup the cost of capital improvements made in anticipation of the needs
which the fee was collected to meet.
(d) All impact fees imposed pursuant to
this section shall be assessed at the time of planning board approval of a
subdivision plat or site plan. When no planning board approval is required, or
has been made prior to the adoption or amendment of the impact fee ordinance,
impact fees shall be assessed prior to, or as a condition for, the issuance of
a building permit or other appropriate permission to proceed with development.
Impact fees shall be intended to reflect the effect of development upon
municipal facilities at the time of the issuance of the building permit. Impact
fees shall be collected at the time a certificate of occupancy is issued. If no
certificate of occupancy is required, impact fees shall be collected when the
development is ready for its intended use. Nothing in this subparagraph shall
prevent the municipality and the assessed party from establishing an alternate,
mutually acceptable schedule of payment of impact fees in effect at the time of
subdivision plat or site plan approval by the planning board. If an alternate
schedule of payment is established, municipalities may require developers to
post bonds, issue letters of credit, accept liens, or otherwise provide
suitable measures of security so as to guarantee future payment of the assessed
impact fees.
(e) The ordinance shall establish
reasonable times after which any portion of an impact fee which has not become
encumbered or otherwise legally bound to be spent for the purpose for which it
was collected shall be refunded, with any accrued interest. Whenever the
calculation of an impact fee has been predicated upon some portion of capital
improvement costs being borne by the municipality, a refund shall be made upon
the failure of the legislative body to appropriate the municipality's share of
the capital improvement costs within a reasonable time. The maximum time which
shall be considered reasonable hereunder shall be 6 years.
(f) Unless otherwise specified in the
ordinance, any decision under an impact fee ordinance may be appealed in the
same manner provided by statute for appeals from the officer or board making
that decision, as set forth in RSA 676:5, RSA 677:2-14, or RSA 677:15,
respectively.
(g) The ordinance may also provide for a
waiver process, including the criteria for the granting of such a waiver.
(h) The adoption of a growth management
limitation or moratorium by a municipality shall not affect any development
with respect to which an impact fee has been paid or assessed as part of the
approval for that development.
(i) Neither the adoption of an impact fee
ordinance, nor the failure to adopt such an ordinance, shall be deemed to
affect existing authority of a planning board over subdivision or site plan
review, except to the extent expressly stated in such an ordinance.
(j) The failure to adopt an impact fee
ordinance shall not preclude a municipality from requiring developers to pay an
exaction for the cost of off-site improvement needs determined by the planning
board to be necessary for the occupancy of any portion of a development. For
the purposes of this subparagraph, ""off-site improvements'' means those
improvements that are necessitated by a development but which are located
outside the boundaries of the property that is subject to a subdivision plat or
site plan approval by the planning board. Such off-site improvements shall be
limited to any necessary highway, drainage, and sewer and water upgrades
pertinent to that development. The amount of any such exaction shall be a
proportional share of municipal improvement costs not previously assessed
against other developments, which is necessitated by the development, and which
is reasonably related to the benefits accruing to the development from the
improvements financed by the exaction. As an alternative to paying an exaction,
the developer may elect to construct the necessary improvements, subject to
bonding and timing conditions as may be reasonably required by the planning
board. Any exaction imposed pursuant to this section shall be assessed at the
time of planning board approval of the development necessitating an off-site
improvement. Whenever the calculation of an exaction for an off-site
improvement has been predicated upon some portion of the cost of that
improvement being borne by the municipality, a refund of any collected exaction
shall be made to the payor or payor's successor in interest upon the failure of
the local legislative body to appropriate the municipality's share of that cost
within 6 years from the date of collection. For the purposes of this
subparagraph, failure of local legislative body to appropriate such funding or
to construct any necessary off-site improvement shall not operate to prohibit
an otherwise approved development.
VI. (a) In this section, ""village plan
alternative'' means an optional land use control and subdivision regulation to
provide a means of promoting a more efficient and cost effective method of land
development. The village plan alternative's purpose is to encourage the
preservation of open space wherever possible. The village plan alternative
subdivision is meant to encourage beneficial consolidation of land development
to permit the efficient layout of less costly to maintain roads, utilities, and
other public and private infrastructures; to improve the ability of political
subdivisions to provide more rapid and efficient delivery of public safety and
school transportation services as community growth occurs; and finally, to
provide owners of private property with a method for realizing the inherent
development value of their real property in a manner conducive to the creation
of substantial benefit to the environment and to the political subdivision's
property tax base.
(b) An owner of record wishing to utilize
the village plan alternative in the subdivision and development of a parcel of
land, by locating the entire density permitted by the existing land use
regulations of the political subdivision within which the property is located,
on 20 percent or less of the entire parcel available for development, shall
grant to the municipality within which the property is located, as a condition
of approval, a recorded easement reserving the remaining land area of the
entire, original lot, solely for agriculture, forestry, and conservation, or
for public recreation. The recorded easement shall limit any new construction
on the remainder lot to structures associated with farming operations, forest
management operations, and conservation uses, and shall specify that the
restrictions contained in the easement are enforceable by the municipality.
Public recreational uses shall be subject to the written approval of those
abutters whose property lies within the village plan alternative subdivision
portion of the project at the time when such a public use is proposed.
(c) The submission and approval procedure
for a village plan alternative subdivision shall be the same as that for a
conventional subdivision. Existing zoning and subdivision regulations relating
to emergency access, fire prevention, and public health and safety concerns
including any setback requirement for wells, septic systems, or wetland requirement
imposed by the department of environmental services shall apply to the
developed portion of a village plan alternative subdivision, but lot size
regulations and dimensional requirements having to do with frontage and
setbacks measured from all new property lot lines, and lot size regulations, as
well as density regulations, shall not apply.
(1) The total density of
development within a village plan alternate subdivision shall not exceed the
total potential development density permitted a conventional subdivision of the
entire original lot unless provisions contained within the political
subdivision's land use regulations provide a basis for increasing the permitted
density of development within a village plan alternative subdivision.
(2) In no case shall a
political subdivision impose lesser density requirements upon a village plan
alternative subdivision than the density requirements imposed on a conventional
subdivision.
(d) If the total area of a proposed
village plan alternative subdivision including all roadways and improvements
does not exceed 20 percent of the total land area of the undeveloped lot, and
if the proposed subdivision incorporates the total sum of all proposed
development as permitted by local regulation on the undeveloped lot, all
existing and future dimensional requirements imposed by local regulation,
including lot size, shall not apply to the proposed village plan alternative
subdivision.
(e) The approving authority may increase,
at existing property lines, the setback to new construction within a village
plan alternative subdivision by up to 2 times the distance required by current
zoning or subdivision regulations, subject to the provisions of subparagraph
(c).
(f) Within a village plan alternative
subdivision, the exterior wall construction of buildings shall meet or exceed
the requirements for fire-rated construction described by the fire prevention
and building codes being enforced by the state of New Hampshire at the date and
time the property owner of record files a formal application for subdivision
approval with the political subdivision having jurisdiction of the project.
Exterior walls and openings of new buildings shall also conform to fire
protective provisions of all other building codes in force in the political
subdivision. Wherever building code or fire prevention code requirements for
exterior wall construction appear to be in conflict, the more stringent
building or fire prevention code requirements shall apply.
Source. 1983, 447:1. 1988, 149:1, 2. 1991, 283:1, 2. 1992, 42:1.
1994, 278:1. 2002, 236:1, 2. 2004, 71:1, 2; 199:2, 3. 2005, 61:1, 2, eff. July
22, 2005. 2008, 63:1, eff. July 20, 2008.