Derry, NH Zoning Ordinance

Before a permit shall be issued by the Building Inspector, he shall determine whether the proposed work complies with all applicable provisions of this chapter and all other applicable building, electrical, fire, and other codes, ordinances and regulations of the Town of Derry. A specific blueprint or other appropriate record of the approved plan shall be filed with the Building Inspector before a building permit is issued.

The Building Inspector shall act to approve or disapprove the building permit application within 10 days of the receipt of said application. The Building Inspector shall make inspections of all buildings in the process of construction and shall report any violations to the Town Council.

Permit to be withheld. No permit shall be issued for construction or alteration unless the proposed structure will present a reasonable appearance and will be in keeping with the neighborhood and unless the building is to be finished on the exterior in a permanent manner and is to be suitably painted on the outside whenever the same is of wood or a material customarily painted. This is intended to eliminate the erection of structures obviously out of place for the neighborhood where they are located and which may be detrimental to property values and neighborhood character.

Permit duration and renewal. Building permits shall be valid for one year from the date of issuance. Said permits may be renewed for a period of one year provided that construction under the original permit was commenced during the first year. On a new building, "construction commenced" shall mean the completion of at least the foundation. After the foundation is constructed, buildings must be completed within one year unless the permit is extended by the Building Inspector for good cause. All permits issued prior to the enactment of this chapter shall expire one year from the date of enactment of this chapter unless renewed as provided herein.

Permit fees. The building permit fee schedule shall be as is contained in the International Building Code as currently adopted by the State of New Hampshire and as amended by the Town of Derry under Chapter 30 of the Town of Derry Code.

[Amended 10-17-2005; 3-24-2015, effective 4-24-2015]

Construction requirements. All construction shall be in accordance with:

[Amended 10-17-2005; 3-24-2015, effective 4-24-2015]

The State Building Code as currently adopted by the State of New Hampshire and as adopted by the Town of Derry under Chapter 30 of the Town of Derry Code and shall include the:

International Building Code as amended by the Town of Derry under Chapter 30 of the Town of Derry Code; as amended by the State of New Hampshire;

International Residential Code as amended by the State of New Hampshire;

International Plumbing Code as amended by the State of New Hampshire;

International Mechanical Code as amended by the State of New Hampshire;

International Energy Conservation Code as amended by the State of New Hampshire;

(f)

International Existing Building Code as amended by the State of New Hampshire; and the

(g)

National Electrical Code (NFPA 70) as amended by the State of New Hampshire.

In addition to the State Building Code, all codes as may be currently adopted by the State of New Hampshire Fire Marshall's office and as contained in Chapter SAF-C6000- State Fire Code; and the International Property Maintenance Code as amended and adopted by the Town of Derry under Chapter 30 of the Town of Derry Code.

Sewage. All dwellings and buildings containing required plumbing fixtures shall be equipped with sewage disposal systems approved by the State of New Hampshire Water Supply and Pollution Control Division. If the sewer line comes within 125 feet of the property line, or for special use of lagoons, refer to Chapter 122, Sewers, and amendments thereto.

[Amended 3-24-2015, effective 4-24-2015[1]]

Editor’s Note: This ordinance also redesignated former Subsection F(1) as Subsection G.

§ 165-23 Buffer zones.

[Amended 11-1-2005]

In all industrial district zones and in the Office/Research and Development District, before any building, parking lot, or driveway can be constructed that is nonresidential in nature and abuts a residence or residential district, a buffer zone shall be established with the following minimum characteristics:

It shall be a minimum of 50 feet wide.

It shall be landscaped and maintained with the purpose in mind to diminish the effect of lighting, sound and odor created by the nonresidential use.

Minimum plantings for the buffer zone shall be three rows of coniferous-type trees running parallel with the residential district. These trees shall have a minimum height of six feet and be planted at a distance of 12 feet to 16 feet on center. They shall be staggered so as to present a more dense buffer zone.

When the existing trees and understory vegetation in the buffer zone are sufficiently dense so as to provide screening at least as effective as the minimum plantings specified in Subsection C above, the Planning Board may opt to require the maintenance of the existing vegetative buffer in lieu of cutting it down to accommodate new plantings, or may opt to require a combination of new plantings and existing vegetative buffer.

Landscaping of the buffer zone shall be approved by the Planning Board.

§ 165-24 Temporary use of manufactured housing.

The Building Inspector may issue a temporary occupancy permit, upon application, for the use of a manufactured housing unit as a temporary residence or as a temporary construction office only after a building permit has been issued for a new or replacement structure and under the following conditions:

Temporary residence. Such unit may be used only by the owner of the primary residence where the primary residence has been damaged by fire or other unforeseen event.

Temporary construction office. Such unit may be used by the contractor for office use only.

A unit to be used as a temporary residence shall be connected to approved water supply and wastewater disposal systems in accordance with state and local requirements.

Any such unit shall be located on the lot where the construction activity is occurring and shall be placed so as to comply with the setback requirements of the district in which it is located.

The temporary occupancy permit shall be valid for a period of one year. The Building Inspector may renew said permit for an additional year, upon application made at least 30 days prior to the expiration date, provided the construction has been diligently pursued and it can be shown that the work will be completed (under a valid building permit) within the renewal period.

The temporary residence or construction office shall be removed from the lot within 30 days of the issuance of the occupancy permit for the new or replacement structure.

§ 165-25 Accessory dwelling unit.

[Amended 10-17-2005; 7-20-2017; 2-21-2025]

The creation of an accessory dwelling unit in an existing single-family detached dwelling shall be subject to all of the following conditions:

The structure shall meet the appropriate building setbacks.

Adequate provisions for sewer discharge disposal shall be required in accordance with state law.

One additional off street parking space shall be provided for the accessory dwelling unit.

The floor area of the accessory dwelling unit shall not exceed 800 square feet of living space.

The accessory dwelling unit must be contained within or be attached to the existing dwelling or be within a structure which is attached to the existing dwelling, and include an interior door which shall be provided between the principal dwelling unit and the accessory dwelling unit.

The conversion of an independent freestanding accessory structure for the purpose of creating an accessory dwelling unit is prohibited.

The accessory dwelling unit shall be composed of a kitchen, a living room, a bathroom, and one or two bedrooms.

Room sizes in the accessory dwelling unit must conform to the minimum requirements of the International Residential Code.

Once an accessory dwelling unit is created under this section, no further conversion of the structure will be allowed for purposes of creating an additional dwelling unit.

The structure and the lot shall not be converted to a condominium or any other form of legal ownership distinct from the ownership of the existing single-family dwelling.

The design of any addition required to facilitate the construction of an accessory dwelling unit shall maintain continuity with the look of the primary dwelling unit.

Owner occupancy must occur in either the primary or accessory dwelling unit.

§ 165-26 Modular or pre-site built housing.

[Amended 10-17-2005; 3-24-2015, effective 4-24-2015]

Modular or pre-site built housing constructed in accordance with the Town and State Building Codes shall be allowed in all areas of the Town where residential construction is presently allowed, under the same requirements as conventional single-family housing in the same district.

§ 165-27 Sexually oriented businesses.

Purpose and intent.

The Town of Derry, through its Planning Board, conducted several public hearings regarding the concentration of sexually oriented businesses within the Town of Derry and the secondary effects of such businesses upon the health, safety and general welfare of the Town. At these public hearings, several citizens presented information regarding the adverse secondary effects of the concentration of sexually oriented businesses on the community. The Planning Board also received and reviewed printed materials and reports regarding the adverse secondary effects of such businesses on the community. All such materials and testimony are a part of the record of the Planning Board in recommending amendments to this chapter addressing the concentration of sexually oriented businesses and the adverse secondary effects of such concentration upon the health, safety and general welfare of the community.

ADULT BOOKSTORE or ADULT VIDEO STORE

Based upon the record established by the Planning Board, it is the purpose and intent of this section to establish reasonable and uniform regulations to prevent the concentration of sexually oriented businesses within the Town of Derry; and it is the intent to promote the health, safety and general welfare of the citizens of the Town of Derry; and it is the intent of this section that the regulations be utilized to prevent problems of blight and deterioration which accompany and are brought about by the concentration of sexually oriented businesses; and the provisions of this section have neither the purpose nor the effect of imposing limitation or restriction on the content of any communicative materials, including sexually oriented materials; and it is not the intent nor the effect of this section to restrict or deny access by adults to sexually oriented materials protected by the First Amendment to the Constitution of the United States of America or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended markets; and neither is it the intent or effect of this section to condone and legitimize the distribution of obscene material.

Definition of sexually oriented businesses. A sexually oriented business is any place of business at which any of the following activities is conducted:

An establishment that devotes more than 15% of the total display, shelf, rack, wall, table, stand or floor area utilized for the display, sale, rental, or distribution for consideration, or offers for sale, rental, or for any other form of consideration, of the following, or an establishment which, as one of its principal business purposes, offers for sale, rental, or for any other form of consideration any one or more of the following:

Books, magazines, periodicals, or other printed matter, or photographs, films, motion pictures, videocassettes, video reproductions, slides, tapes, records, CD-ROMs or other forms of visual or audio representations which depict or describe specified sexual activities or specified anatomical areas or meet the definition of "harmful to minors" and/or "sexual conduct" as set forth in RSA 571-B:1; or

Instruments, devices or paraphernalia which are designed for use in connection with sexual conduct as defined in RSA 571-B:1, other than birth control devices.

An establishment may have other principal business purposes that do not involve the offering for sale or rental of material depicting or describing specified sexual conduct or activities and still be categorized as an adult bookstore or adult video store. Such other business purposes will not serve to exempt such establishment from being categorized as an adult bookstore or adult video store so long as one of its principal business purposes is offering for sale or rental or for other consideration specified materials which depict or describe specified sexual conduct or activities or specified anatomical areas.

ADULT MOTION-PICTURE ARCADE

An adult bookstore or adult video store does not include an establishment that sells, rents, or distributes for any other form of consideration or offers for sale, rent, or distribution for any other form of consideration material described in Subsection 1(a) or (b) hereof as an incidental or accessory part of its principal stock-in-trade, does not devote more than 15% of the total display area of the establishment to the sale, rent, or distribution of material described in Subsection 1(a) or (b) hereof, and such enterprise does not constitute a principal business purpose.

ADULT CABARET

A nightclub, bar, restaurant, or similar establishment which, during a substantial portion of the total presentation time, features live performances which meet the definition of "harmful to minors" and/or "sexual conduct," as set forth in RSA 571-B:1, and/or feature films, motion pictures, videocassettes, slides or other photographic reproductions, a substantial portion of the total presentation time of which is devoted to the showing of material which meets the definition of "harmful to minors" and/or "sexual conduct" as set forth in RSA 571-B:1.

ADULT DRIVE-IN THEATER

An open lot or part thereof, with appurtenant facilities, devoted primarily to the presentation of motion pictures, films, theatrical productions and other forms of visual production, for any form of consideration, to persons in motor vehicles or in outdoor seats, in which a substantial portion of the total presentation time being presented for observation by patrons is devoted to the showing of material which meets the definition of "harmful to minors" and/or "sexual conduct" as set forth in RSA 571-B:1.

ADULT MOTEL

A motel or similar establishment offering public accommodations for any form of consideration which provides patrons with closed-circuit television transmissions, films, motion pictures, videocassettes, slides or other photographic reproductions, a substantial portion of the total presentation time of which is distinguished or characterized by an emphasis upon the depiction or description of materials which meet the definition of "harmful to minors" and/or "sexual conduct" as set forth in RSA 571-B:1.

Any place to which the public is permitted or invited wherein coin- or slug-operated electronically or electrically or mechanically controlled still- or motion-picture machines, projectors, or other image-producing devices are maintained to show images to five or fewer persons per machine at any one time, in which a substantial portion of the total presentation time of the images so displayed is devoted to the showing of material which meets the definition of "harmful to minors" and/or "sexual conduct" as set forth in RSA 571-B:1.

ADULT MOTION-PICTURE THEATER

An establishment with a capacity of five or more persons where, for any form of consideration, films, motion pictures, videocassettes, slides or similar photographic reproductions are shown and in which a substantial portion of the total presentation time is devoted to the showing of material which meets the definition of "harmful to minors" and/or "sexual conduct" as set forth in RSA 571-B:1 for observation by patrons.

ADULT RESTAURANT

A bar, restaurant, retail seller of food and/or beverages for consumption on premises or off premises or any similar establishment which employs, hires, contracts with, or uses any person to provide any service for such bar, restaurant, retail seller of food and/or beverages for consumption on premises or off premises or any similar establishment in a state of nudity.

ADULT THEATER

A theater, concert hall, auditorium or similar establishment, either indoor or outdoor in nature, which, for any form of consideration, regularly features live performances, a substantial portion of the total presentation time of which is distinguished or characterized by an emphasis on activities which meet the definition of "harmful to minors" and/or "sexual conduct" as set forth in RSA 571-B:1.

NUDE MODEL STUDIO

A place where a person who appears in a state of nudity or displays male genitals in a state of sexual arousal and/or the vulva or more intimate parts of the female genitals is observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons who pay money or any form of consideration and such display is characterized by an emphasis on activities which meet the definition of "harmful to minors" and/or "sexual conduct" as set forth in RSA 571-B:1.

SEXUAL ENCOUNTER CENTER

A business or commercial enterprise that, as one of its principal business purposes, offers for any form of consideration:

Physical contact in the form or wrestling or tumbling between persons of the same or opposite sex where such physical contact is characterized by an emphasis on activities which meet the definition of "harmful to minors" and/or "sexual conduct" as set forth in RSA 571-B:1; or

Activities between male and female persons and/or persons of the same sex when one or more persons are in the state of partial nudity or nudity.

Terminology definitions. The following terms shall have the following meanings for the purposes of this section:

NUDE or NUDITY

The showing of:

Human male or female genitals or pubic area with less than a fully opaque covering;

Any portion of the anal cleft or cleavage of the male or female buttocks. Attire that is insufficient to comply with this requirement includes, but is not limited to, g-strings, t-back thongs, and other clothing or covering that does not completely and opaquely cover the anal cleft or cleavage of the male or female buttocks;

The portion of the human female breast directly or laterally below a point immediately above the top of the areola with less than a fully opaque covering; this definition shall include the entire lower portion of the human female breast but shall not include any portion of the cleavage of the human female breast exhibited by a dress, blouse, shirt, leotard, bathing suit or other clothing, provided the areola is not exposed; or

PRINCIPAL BUSINESS PURPOSES

Human male genitals in a discernibly turgid state, even if completely and opaquely covered.

Such activity constitutes at lease 10% of the gross revenues of the establishment at the specific location operated by the establishment.

SPECIFIC ANATOMICAL AREAS

Include any of the following:

The fondling or other erotic touching of the human genitals, public region, buttocks, anus, or female breasts;

Sex acts, normal or perverted, actual or simulated, including intercourse, copulation or sodomy;

Masturbation, actual or simulated; or

SPECIFIED SEXUAL CONDUCT OR ACTIVITIES

Excretory function as part of or in connection with any of the activities set forth in Subsection (1), (2) or (3) above.

The male genitals in a state of sexual arousal and/or the vulva or intimate parts of the female genitals.

SUBSTANTIAL PORTION OF TOTAL PRESENTATION TIME

The presentation of films or shows for viewing on more than seven days within any fifty-six-consecutive-day period.

Locational requirements. Sexually oriented businesses, as defined in this section, shall be permitted in the General Commercial District, provided that all of the regulations, requirements and restrictions for the General Commercial District are met and the following conditions, regulations and requirements are met:

Separation of uses. Sexually oriented businesses shall not be permitted within 1,000 feet of another existing sexually oriented business or one for which a building permit or a zoning certificate of use has been applied for.

Use setbacks. Sexually oriented businesses shall not be permitted within 450 feet of:

Any residence or any building used principally as a residence, such as an apartment building or rooming house;

Indoor and/or outdoor amusement establishment;

Any church, place of worship, parish house, or convent;

Public, parochial or private school or kindergarten;

Licensed day care and/or day nursery or state-approved day-care center;

(f)

Public sports or recreation park; or

(g)

Any building, structure, property, or marker designated as historic by any federal, state, or local board, agency, or commission.

Zoning district setbacks.

Sexually oriented businesses shall not be permitted within 450 feet of the following zoning district boundaries:

Any residential district;

Any industrial district;

Central Business District;

Office/Business District; and

Neighborhood Commercial District.

Sexually oriented businesses are prohibited in all zoning districts within the Town of Derry other than the General Commercial District.

Setback from governmental offices. Sexually oriented business shall not be permitted within 450 feet of any building owned or used by the Town of Derry or any other governmental agency for governmental purposes.

Town setback. Sexually oriented business shall not be permitted within 450 feet of the Town line.

Restrictions within a building. Sexually oriented businesses shall not be permitted within a building, premises, or structure or other facility that constitutes or includes a sexually oriented business.

Measure of distance. The distance between any sexually oriented business and other named point of reference shall be measured in a straight line, without regard to intervening structures, from the closest property line of the site identified in Subsection D(1) through (5) above to the closest exterior wall of the building in which the sexually oriented business operates. When the measurement of distances involves a geographic boundary, the point of reference shall be deemed to be the boundary.

Application procedures. The Planning Board shall review and approve, or approve with conditions, or disapprove applications for sexually oriented businesses under site plan regulations for the Town of Derry. When approving applications, the Planning Board may impose reasonable restrictions for buffering, outdoor lighting, signage, parking, adequate ingress and egress from the site off and onto public roads, and pedestrian movement and provide for appropriate landscaping and building aesthetics consistent with the site plan regulations for the Town of Derry, New Hampshire, and avoid site development layout which may result in negative environmental impact to ensure that any displays of merchandise visible to the general public are in conformity with RSA 571-B.

Applicability. This section shall be effective upon passage. Any sexually oriented business which was in operation prior the adoption of this section shall be subject to the provisions of Article XIII, § 165-106.

Enforcement. Notwithstanding any other provision of this chapter, any person, partnership, corporation, or other entity who or which is found in violation of this section shall be subject to a fine in an amount not to exceed $100 per day for each violation.

§ 165-28 Wireless communications facilities.

Purpose and intent. The purpose of this section is to establish regulations for wireless communications facilities. The goals of this section are to:

Protect residential areas and lands by minimizing adverse impacts of towers;

Encourage the location of towers in nonresidential and otherwise appropriate zoning districts;

Minimize the total number of towers in the community;

Encourage the joint use of new and existing tower locations;

Ensure that towers are located in areas that minimize adverse impacts;

Ensure towers and antennas are configured in a way that minimizes adverse visual impacts by careful design, appropriate siting, landscape screening, and innovative camouflaging techniques;

(7)

Enhance the ability to provide telecommunications services to the community quickly, effectively and efficiently;

(8)

Consider public health and safety impact on the community of the telecommunications facilities;

(9)

Avoid damage to adjacent properties from tower failure through careful engineering and locating of tower structures;

(10)

Encourage the attachment of antennas to existing structures; and

(11)

Facilitate the provision of telecommunications services throughout the municipality.

Wireless facilities; regulation and performance criteria. The location, placement on a lot, and construction of wireless communications facilities shall be in accordance with this section as follows:

Location.

Construction of wireless communications facilities is prohibited in the following districts, except as provided in the Telecommunication Overlay Zone:

Medium-High Density Residential District (MHDR).

Medium Density Residential District (MDR).

Manufactured Housing Park District (MHPD).

Multifamily Residential District (MFRD).

Central Business District (CBD).

[6]

General Commercial District (GC).

[7]

Office Business District (OBD).

[8]

Low Density Residential District (LDR).

[9]

Low-Medium Density Residential District (LMDR).

Construction of wireless communication towers shall be allowed in the following Telecommunication Overlay Zone:

	Tax Map No.	Parcel No.
	101	0115
		0115-1 through 15
		0118
		0119
		022-1
		022-8 through 11
		022-11-1
	102	0119-1 through 30
	107	022-1
		022-2 through 7
		023-3
		023-3-1
		023-3-2
		023-4
		024
		025
		028
		0218

Construction of wireless communications facilities is a permitted use by right in the following districts only if the criteria of Table D of this section are met:[1]

Industrial District-I (IND-I).

Industrial District-II (IND-II).

Industrial District-III (IND-III).

Industrial District-IV (IND-IV).

Office/Medical/Business District (OMB).

[6]

Office/Research and Development District (ORD).

Editor's Note: Table D is included at the end of this section.

Towers shall be at least 3/4 of a mile apart.

Collocation.

Collocation is the sharing of telecommunication facilities by more than one wireless provider. This section encourages that wireless communications antenna be placed on an existing wireless facility tower if it is physically and legally possible. Antennas may be attached to an existing tower which is in compliance with all requirements of this section, as long as the height of the tower is not increased. The new antenna and any telecommunications support facilities must comply with all applicable regulations in this chapter. If a tower is replaced to accommodate collocation, only one tower may remain on the lot.

In order to facilitate the maximum use of an existing tower, promote collocation and to reduce the potential for new towers, where an existing tower is on a nonconforming lot or is a valid preexisting nonconforming use, the Zoning Board of Adjustment shall grant a special exception to allow additional antennas on such existing tower and additional ground support facilities if all of the following conditions are met:

There is no increase in the existing height of the tower.

The proposed expansion of any ground support facility and buildings shall otherwise meet all setback requirements and any buffer restrictions applicable to the lot.

The Board finds that the proposed expansion to the wireless communication facility is necessary and essential to providing the applicant's telecommunication service.

In granting a special exception, the Board of Adjustment may impose conditions, including buffers or screening, to the extent the Board concludes such conditions are necessary to minimize any adverse effect of the proposed expansion on adjoining properties and preserve the intent of this section.

Variances to this section by the Zoning Board of Adjustment are subject to site plan review.

Wireless facility performance criteria. See Table D attached hereto.[2]

Editor's Note: Table D is included at the end of this section.

All new ground towers shall be subject to site plan review. The assessment and review of each application for a wireless facility's compliance with the performance criteria of Table D shall be the responsibility of the Building Inspector after consultation with the Planning Director. This assessment shall be in writing and provided to any board or authority exercising jurisdiction over the application. Applications for collocation of antenna on existing facilities shall be expedited and, unless there is an additional impact on the site caused by the addition, site plan approval shall be waived upon such a finding by the Building Inspector.

As part of the site plan review process, the Planning Board shall set the form and amount of security that represents the cost for removal and disposal of abandoned towers in the event that the tower is abandoned and the tower owner is incapable or unwilling to remove the tower. Any antenna or tower that is not operated for a continuous period of 12 months shall be considered abandoned, and the owner of such antenna or tower shall remove the same within 90 days of the issue date of the notice to remove the tower or antenna. If the abandoned tower is not removed within 90 days, the municipality may execute the security and have the tower removed. If there are two or more users of a single tower, this provision shall not become effective until all users cease using the tower.

(7)

Towers are allowed only in the zoning districts set forth in Subsection B(1)(b) and (c) and shall be considered a permitted use in those zones. The existence of another structure or use on the same zone lot shall not preclude the installation of a tower provided all other requirements are met, that is in compliance with the regulations contained herein and the structure is permitted by right for the zone in which it is located.

(8)

Towers and/or antennas shall meet the following requirements, all of which shall be reviewed as part of the Planning Board site plan review:

The design of towers, antennas, and telecommunications support facilities shall use materials, colors, textures, screening, and landscaping that create compatibility with the natural setting and surrounding structures and minimize impact on surrounding properties.

The towers, antennas and telecommunication support facilities shall be constructed in a manner of material which ensures the safety of the public, abutters and occupants of the lot upon which the structure is constructed. If there is a health safety concern, the Planning Board may require such engineering or other scientific studies to determine the issue as it deems appropriate at the applicant's expense. All towers shall conform to National Tower Code ANSI/EIA/TIA0222-F.

Signs shall be limited to those signs required for cautionary or advisory purposes only.

Towers.

Setbacks and height. Height and setback requirements are governed by Table D. Tower height shall be the distance measured from the lowest point within 10 feet of the structure to the highest point on the tower or other alternative tower structure, including the base pad and any antenna attached to the tower.

Color. Towers shall be finished in a color to reduce visual obtrusiveness and meet the requirements of Subsection B(8)(a), subject to any applicable standards of the Federal Aviation Administration (FAA).

Support facilities and buildings associated with towers shall, in addition to the setback and height requirements of Table D, maintain the minimum setback requirements of the zone district in which they are located.

Support facilities and buildings associated with towers shall provide solid view-obscuring security fencing not less than eight feet in height.

Support facilities and buildings associated with towers shall provide landscaping in accordance with the following requirements:

[a]

The tower compound shall be landscaped with a buffer of plant materials that effectively screens the view of the tower base and support facilities from property used for residences. The standard buffer shall consist of a landscaped strip of at least five feet wide outside the perimeter of the improvements and shall provide for and maintain suitable landscaping on the remainder of the lot so as to accomplish the purpose of this section.

[b]

In locations where the visual impact of the tower would be minimal, the landscaping requirement may be reduced or waived by the Planning Board as part of the site plan review process.

[c]

Existing mature tree growth and natural land forms on the site shall be preserved to the maximum extent possible. For towers located on large, wooded lots, natural growth around the property perimeter may be considered a sufficient buffer.

[6]

Lighting. Towers shall not be artificially illuminated unless required by the Federal Aviation Administration (FAA) or other governmental regulation. Ground-level security lighting not more than 20 feet in height may be permitted if designed to minimize impacts on adjacent properties.

Antennas installed on a structure other than a tower.

Height. Height of the antenna shall be governed by Table D.[3]

Editor's Note: Table D is included at the end of this section.

Telecommunications support facilities:

[a]

Telecommunications support facilities may be located on the roof of a building, subject to applicable building and safety or fire codes.

[b]

The antenna and telecommunications support facilities shall be a neutral color that is identical to, or closely compatible with, the color of the supporting structure.

(9)

Application. The provisions of this section and the Town of Derry site plan review regulations, where applicable, shall govern all applications for wireless communications facilities.

In order for an application to be acted on, the following must be submitted in addition to any requirements required under the site plan review regulations contained in the land use regulations of the Town of Derry:

The first application for a permit by a provider or an applicant for a provider shall include an inventory of all of that provider's existing towers, antennas, or sites approved for towers or antennas that are either within Derry or within 2,000 feet of the border thereof.

A vicinity map drawn to scale showing adjacent land uses within 1,000 feet, including those in adjacent municipalities.

A scaled set of plans containing the following information in addition to information required by the municipality's site plan review regulations:

[a]

Location and legal description of the proposed site;

[b]

Type and height of the proposed tower;

[c]

On-site land uses and zoning;

[d]

Adjacent roadways;

[e]

Proposed means of access;

[f]

Setbacks from property lines;

[g]

Architectural elevation drawings of the proposed tower, antenna and any other telecommunications support facilities;

[h]

Site topography;

[i]

Parking;

[j]

A landscape plan showing specific landscape materials and details;

[k]

The method of fencing, finished color and, if applicable, the method of camouflage and illumination.

An affidavit from the owner of the property acknowledging that the owner of the property is responsible for the removal of a tower that is abandoned or is unused for a period of 12 months. The landowner is only responsible in the case of the insufficiency of the bond that is specified in Subsection B(6).

All towers, antennas and telecommunication support facilities shall meet applicable regulations of the Federal Aviation Administration (FAA). The engineer preparing the site plan shall certify that such requirements are met.

Regardless of whether site plan review is required, every applicant for an antenna shall provide the Building Inspector with the information required in Subsection B(9)[a][3], [4] and [5] of this section.

The Building Inspector may share information, except for the confidential proposed system design, with other applicants applying for administrative approvals or use exceptions under this section or other organizations seeking to locate towers/antennas in Derry, except that the Building Inspector is not, by sharing such information, in any way representing or warranting that such sites are available or suitable for any use.

Inventory and tracking. The Building Inspector shall compile a list of towers and maintain and update the same from information furnished by all service providers.

Applicability.

Amateur radio and citizen band radios.

This section shall not govern any tower or the installation of any antenna that is owned and operated by a federally licensed amateur radio station operator and where the tower or antenna is used for the exclusive purpose of amateur radio operations. This application adopts the provisions and limitations as referenced in RSA 674:16, IV.

This section shall not govern the installation of any antenna that is used for the exclusive purpose of facilitating the use of a citizen band radio, except any towers in this section shall be limited to 70 feet in height.

Receive-only antennas. This section shall not govern any tower or the installation of any antenna that is used exclusively for receive-only antennas, except any towers in this section shall be limited to 70 feet in height.

Home business antennas. This section shall not govern the installation of any antenna that is used exclusively for a home business in a residential zone, except any towers in this section shall be limited to 70 feet in height.

Essential services and public utilities. Wireless communications facilities shall not be considered infrastructure, essential services, or public utilities, as defined or used elsewhere in the municipality's ordinances or regulations.

Public property. The provisions of this section shall not apply to antennas or towers located on property owned, leased or otherwise controlled by the municipality.

Existing towers. The provisions of this section shall not apply to the addition of antenna to existing wireless communications towers as of the effective date of this chapter unless the addition of such will increase the height of the tower or otherwise additionally impact the existing tower's site. Modifications to existing towers, except as set forth in the preceding sentence, shall be subject to the terms thereof.

Table D Wireless Facility Performance, Criteria
	MHPD, MFRD, NC, CBD, GC, OBD, MDR, MHDR, LDR and LMDR	IND-I, IND-II, IND-III, IND-IV, OMD, ORD and Telecommunication Overlay Zone
D.1. Antenna to be affixed to a new (proposed) ground tower	Not allowed	Allowed Maximum tower height: 190 feet Setbacks: The greater distance by application of the following:
		(1) 50% of tower height plus 10 feet from site boundaries or residential structures; or
		(2) All facilities must meet setback requirements of this chapter and Chapter 170, Land Development Control Regulations.
		The tower shall be fenced to a minimum height of 8 feet with 2 strands of barbed wire.
		Site plan review required.
D.2. Antenna to be affixed to an existing building without a roof tower	Not allowed	Allowed Antenna may be placed on a facade or roof of conforming building or structures without regard to height or setback of the building.
		Antenna support structures will be considered to be roof towers if the height of the structure exceeds 10 feet above permitted height of building.
D.3. Antenna to be affixed to a new (proposed) roof tower	Not allowed	Roof towers may be placed on the roof of a conforming building using either of the following to determine tower height and setback:
		(1) Tower height above the roof may be as high as the setback distance to the nearest roof edge.
		(2) The heights allowable for a ground tower may be used for a roof tower if the required setbacks for a ground tower are met.
D.4. Antenna to be added to an existing approved or permitted tower	Not allowed	Allowed Allowed if the following conditions are met:
		(1) The tower height is not increased.
		(2) No ancillary features are added to the tower other than antenna, required safety hardware, and ancillary equipment buildings.
		(3) All conditions of the previous tower approval have been satisfied.
D.5. Existing nonconforming tower	N/A	Subject to zoning requirements concerning nonconforming structures.
D.6. Ancillary equipment building(s)	Not allowed	Subject to all requirements of appropriate zone (i.e., bulk, setback, etc.)

§ 165-28.1 Architectural design regulations.

[Added 9-20-2005]

Purpose. The purpose of this amendment is to grant authority to the Planning Board to adopt architectural design regulations that would apply, with varying degrees of compliance requirements, to all zoning districts in the Town of Derry where nonresidential uses or multifamily residential uses are permitted. This language supersedes existing, more specific language in this Chapter 165 that already permits the adoption of architectural design regulations that would be applicable in selected zoning districts.

The Planning Board is authorized to adopt architectural design regulations for any zoning district, as listed in § 165-29, pursuant to the authority granted in RSA 674:16 I and II, 674:21 I, and 674:44 II, subject to the limitations in the following Subsections B(1) through (3).

Architectural design review shall be applicable only for nonresidential uses or multifamily residential uses that are subject to site plan review. The architectural design regulations shall not apply to any zoning district where the only permitted uses are single-family or two-family residential uses.

Architectural design review compliance criteria shall be differentiated for specific zoning districts, or groups of zoning districts, to accomplish the valid public purpose authorized under state law, but without imposing undue burden or hardship on specific types of development. If such architectural design regulations are adopted by the Planning Board, the provisions of the regulations shall include tiered levels of compliance requirements covering all zoning districts, and provisions for a process to grant waivers of portions of the regulations, pursuant to the Planning Board’s existing statutory authority to grant waivers to its site plan regulations.

RESIDENTIAL/SMALL BUSINESS SOLAR

If such architectural design regulations are adopted by the Planning Board, they shall be incorporated into Chapter 170, Land Development Control Regulations.

§ 165-28.2 Small business and residential solar energy systems.

[Added 8-20-2021]

This chapter is adopted in accordance with RSA 674:17, I(j), and the purposes outlined in RSA 672:1, III-a, as amended. The purpose of this section is to permit the building of distributed generation resources using renewable energy, while protecting the public's health, safety, and welfare. The Town intends to promote the state and national goals of developing clean, safe, and renewable energy resources in accordance with New Hampshire's ten-year state energy strategy that includes national security and economic and environmental sustainability.

Word usage and definitions. For the purpose of this chapter, certain terms or words herein shall be interpreted as follows: the present tense includes the future tense, the singular number includes the plural, and the plural includes the singular. The words "shall" and "will" are mandatory; the word "may" is permissive.

ADVERSE NOISE IMPACTS

Disturbance and noise above 80 decibels at the property line.

COMMERCIAL SOLAR

A use of land that consists of one or more freestanding, ground-mounted solar collection systems with a rated nameplate capacity of up to 1 MW AC and that is less than 5 acres in solar land coverage.

GLARE

The effect produced by light that exceeds the index of refraction, which is equal to 1.3, including the loss of visual performance or discomfort produced by an intensity of light in the visual field that is greater than the intensity of light to which the eyes are adapted.

GROUND MOUNTED

A solar collection system and associated mounted hardware that is affixed to or placed upon the ground (such as ballasted systems), including, but not limited to, fixed, passive, or active tracking racking systems.

RATED NAMEPLATE CAPACITY

Maximum rated alternating current ("AC") output of solar collection system based on the design output.

Any ground-mounted or roof-mounted solar collection system primarily for on-site use, and consisting of one or more freestanding, ground- or roof-mounted, solar arrays or modules, or solar-related equipment, intending to primarily reduce on-site consumption of utility power and with a rated nameplate.

ROOF MOUNTED

A solar collection system that is structurally mounted to the roof of a building or other permitted structure, including limited accessory equipment associated with the system which may be 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. These systems may be connected to privately owned distribution lines or utility-owned distribution or transmission lines. Users are typically connected to the shared system through a group net metering agreement, power purchasing agreement, or other similar agreement or method.

SOLAR ACCESS

The ability of one property to continue to receive sunlight across property lines without obstruction from another's property (buildings, foliage or other impediment). Solar access is calculated using a sun path diagram.

SOLAR COLLECTION SYSTEM

Includes all equipment required to harvest solar energy to generate electricity. The solar collection system includes storage devices, power conditioning equipment, transfer equipment, and parts related to the functioning of those items. Solar collection systems include only equipment up to (but not including) the stage that connection is made to the utility grid or site service point.

SOLAR LAND COVERAGE

Is defined exclusively for the purposes of calculating the footprint of the land area occupied by the components of a solar array. The solar land coverage is the land area that encompasses all components of the solar collection system, including, but not limited to, mounting equipment, panels, and ancillary components of the system. This definition does not include access roads or fencing and is not to be interpreted as a measurement of impervious surface.

SOLAR PANEL

That part or portion of a solar energy system containing one or more receptive cells or modules, the purpose of which is to convert solar energy for use, including, but not limited to, space heating or cooling, for water heating and/or for electricity.

General provisions. The following general provisions shall apply to residential/small business solar collection systems.

Location and size.

Solar panels exceeding 18 square feet in area are not permitted in any front yard or on any face of a building or structure facing a street unless integrated with the ordinary construction of said building or structure, except roof-mounted solar panels as set forth below.

Ground-mounted solar panels, larger than 18 square feet, shall be located in a side or rear yard only, not to exceed 25 feet in height above the ground and shall be reasonably screened from adjacent properties by fencing or a combination of evergreen and deciduous plantings. A ten-foot access shall be provided on one side of the fence array for emergency access. Gates shall have an emergency key box ("Knox-Box^®").

Roof -mounted solar panels. Permitted roof-mounted solar panels shall include integrated solar panels as the surface layer of the roof structure with no additional apparent change in relief or projection (the preferred installation), or separate flush-mounted solar panels attached to the roof. Flush-mount installation means the panels run parallel to the roof, following the roof's natural angle and do not change the appearance of the roofline.

A licensed engineer, hired by the applicant, will be required to review the roof structure and provide a report stating it will support the array prior to permitting the installation or indicating what modifications must be performed by the building owner/applicant to make the roof viable to support the array.

Separate flush-mounted solar panels installed on a building or structure with a sloped roof surface shall not project vertically above the peak of the roof to which it is attached, or project vertically more than 10 feet above a flat roof installation. Total height, including panel angles, must comply with NFPA 1, Section 11.12.2.2.1, Fire Accessways.

Specific solar system requirements and exemptions.

Solar collection systems of up to and including 15kW and less than 900 square feet of solar land coverage shall be allowed as a right, requiring only compliance with setbacks and no more than 18 square feet may be located in the front yard. A building permit and electrical permit, is required. A licensed NH master electrician shall apply for the electrical permit. An inspection by the Code Enforcement Office is required to ensure compliance with electrical and building code provisions.

Any solar collection system must meet all setback and height regulations of the Town of Derry and conform with requirements of the building permit and electrical permit applications.

Any solar collection system must meet all state and federal requirements.

The applicant must provide notice of the expected output (kWs). This information must be provided with the building permit and conform with requirements of the building permit and electrical permit applications.

If connected to a utility, copies of the utility approval must be provided for solar arrays both less than and greater than 15kW.

For a roof-mounted solar array and ground mounted arrays of 15kW AC or less, no further review is required.

(7)

For freestanding, ground-mounted solar array greater than 15kW AC, the process shall be as follows:

Application for site plan review to the Planning Board is required.

The Planning Board, at its option, may require the applicant to submit an analysis of potential glare and other nuisances caused by the installation and require the applicant to take steps to mitigate, as appropriate.

Decommissioning. Each solar collection system and all solar-related equipment shall be removed within 12 months of the date when the use has been discontinued or abandoned by the system owner and/or operator, or upon termination of the useful life of same. The solar collection system shall be presumed to be abandoned if no electricity is generated by such solar collector for a period of 12 continuous months. An escrow/removal bond, such as those assessed for tower removal, may be required by the Planning Board or Public Works.

Solar ready zoning.

Solar ready zoning should be considered as one among multiple considerations in planning new developments.

New structures are encouraged, to the extent possible and insofar as practical, to be situated on the lot to take advantage of solar access, including the orientation of proposed buildings with respect to sun angles, the shading and windscreen potential of existing and proposed vegetation on and off the site, and the impact of solar access to adjacent uses and properties.

To permit maximum solar access to proposed lots and future buildings, where reasonably feasible and where consistent with other appropriate design considerations, new streets are encouraged to be located in such a way as to encourage building siting with the maximum exposure of roof and wall area to the sun.

Derry town tree planting programs are encouraged to take into account the impact of street trees on the solar access of surrounding properties and, where possible, efforts made to avoid shading possible locations of solar collectors.