Nashua, NH Zoning Ordinance

No application shall be deemed complete unless all of the information required by Article XLIII for a particular application is included, a completed checklist indicated that all such items have been submitted, an engineer's stamp, and all filing fees required by Article XLIII have been paid. An application that includes such information shall be deemed complete.

The Administrative Officer shall prepare and make available to applicants application forms consistent with Article XLIII. Such applications shall be filed in advance of any public hearing or public meeting required pursuant to this chapter or statute. The Administrative Officer may establish a schedule for filing any application requiring action by the Planning Board, the Board of Aldermen, or other agencies assigned review authority by this chapter. The filing schedule shall provide adequate time for notice and/or publication consistent with the applicable state statutes and this chapter. Completed applications shall be filed according to any published schedule of the Administrative Officer.

Review procedures.

Jurisdiction. Unless the provisions pertaining to a particular application prescribe otherwise:

The Administrative Officer shall review all applications for approval of a development order or a permit for completeness.

All decisions of the Administrative Officer or other administrative official pertaining to completeness may be appealed to:

The Zoning Board of Adjustment, in the case of a zoning application (Article XV) of this chapter or zoning compliance review for building permits or certificates of occupancy; or

[2]

The Planning Board for all other applications.

Time limits triggered by complete application. Whenever this Part 3 establishes a time period for processing of an application by the City, such time period shall not commence until the Administrative Officer has reviewed such application for completeness in order to determine whether the application has been properly submitted and the applicant has corrected all deficiencies in such application. Review for completeness of application forms is solely for the purpose of determining whether preliminary information required for submission with the application is sufficient to allow further processing, and does not constitute a decision as to whether application complies with the provisions of this chapter.

Review by Administrative Officer and appeal; default procedure.

Unless a different procedure is described in this Part 3, this subsection applies to the review of an application for completeness.

Not later than 10 days after the Administrative Officer has received an application, the Administrative Officer shall determine in writing whether the application is complete and shall immediately transmit the determination to the applicant. If the written determination is not made within this time period, the application shall be deemed complete for purposes of this chapter. Upon receipt of any resubmittal of the application, a new ten-day period shall begin, during which period the Administrative Officer shall determine the completeness of the application. If the application is determined not to be complete, the Administrative Officer's determination shall specify those parts of the application which are incomplete and shall indicate the manner in which they can be made complete, including a list and thorough description of the specific information needed to complete the application. The applicant shall submit materials to the Administrative Officer in response to the list and description.

If the application together with the submitted materials are determined not to be complete, the applicant may appeal that decision in writing. The agency hearing the appeal shall render a final written determination on the appeal not later than the next available meeting after receipt of the applicant's written appeal. Notwithstanding a decision by the Administrative Officer that the application and submitted materials are not complete, if the final written determination on the appeal is not made within that five-day period, the application with the submitted materials shall be deemed complete for the purposes of this chapter.

An applicant and the Administrative Officer may mutually agree to an extension of any time limit provided by this section.

Time limits. If the reviewing agency fails to act within the time period prescribed for completeness review, the application shall be deemed complete.

Limitation on further information requests.

After the Administrative Officer accepts an application as complete or following a determination or appeal that the application is complete, the Administrative Officer or the reviewing agency shall not subsequently request of an applicant any new or additional information which was not specified in Article XLIII. The Administrative Officer or the reviewing agency may, in the course of processing the application, request the applicant to clarify, amplify, correct, or otherwise supplement the information required for the application.

This subsection shall not be construed as requiring an applicant to submit with his or her initial application the entirety of the information which the reviewing may require in order to take final action on the application. Prior to accepting an application, the Administrative Officer shall inform the applicant of any information included in Article XLIII that is subsequently required from the applicant in order to complete final action on the application.

Acceptance of application. Applications shall be accepted as follows:

For administrative procedures (Article XIV of this Part 3), by written notice if requested by the applicant; or

For other actions, by placing the application on the agenda of the agency considering the application.

§ 190-126 Notice provisions.

Purpose and intent. This section provides the maximum possible notice of actions relating to parcels of land in the City that may impact the surrounding neighborhood by requiring the posting of signage on the subject site giving notice of public hearings on such actions.

Applicability. This section applies to all applications that require public notice.

Generally. The notice requirements for each type of application for development approval are prescribed in the individual subsections of this article applicable thereto and/or the New Hampshire Revised Statutes Annotated (RSA). The notice requirements for certain types of public hearings are established in Table 126-1 below; provided, however, that to the extent of any inconsistency between the provisions of this section and any state statute, the state statute shall govern.

Contents of notice. [References: RSA 676:4 I(d)] Other than applications for subdivision or site plan approval (See §§ 190-138 and 190-146), the notice shall state the time, date and place of hearing and a description of the property subject to the application which includes, at a minimum, the following:

[Amended 12-13-2023 by Ord. No. O-23-059]

Date upon which the application will be formally submitted to the agency.

A general description of the proposal which is the subject of the application.

The name and address of the applicant.

The location of the proposal. The street address or, if the street address is unavailable, the legal description by metes and bounds.

The current zoning classification.

The category of permit requested.

Action to be consistent with notice. The reviewing body may take any action on the application that is consistent with the notice given, including approval of the application, conditional approval (if applicable) of the application, or denial of the application.

Minor amendments not requiring renotification. The provisions of this Subsection E shall govern to the extent not inconsistent with provisions relating to minor amendments for a specific category of permit or development order. The reviewing body may allow minor amendments to the application without resubmittal of the entire application. For purposes of this subsection, "minor amendments" are amendments that:

Permit equal or fewer dwelling units, floor area or impervious surface than that requested on the original application;

Reduce the impact of the development; or

Reduce the amount of land involved from that indicated in the notices of the hearing.

Table 126-1 Notice [Amended 8-10-2010 by Ord. No. O-10-25; 12-13-2023 by Ord. No. O-23-059]
(A)	(B)	(C)	(D)	(E)
Action	Publication	Posting	Mail	Signage
Regulatory Amendments
Official Map amendment (RSA 674:11)	10 days	10 days, at least 2 public places	N/A	N/A
Zoning Ordinance amendments (RSA 675:7)	N/A	10 days, at least 2 public places	10 days	N/A
Rezoning (RSA 675:2, 674:20)	N/A	10 days, at least 2 public places	10 days	10 days
Planning Board Applications
Site plan (RSA 674:1.VI, 674:43)	N/A	10 days, at least 2 public places	10 days	10 days
Subdivision plan (RSA 674:1.VI, 674:35)	N/A	10 days, at least 2 public places	10 days	10 days
Conditional use permit (RSA 674:21.II)	N/A	10 days, at least 2 public places	10 days	10 days
Plan revocation (RSA 676:4-a)	N/A	10 days, at least 2 public places	10 days	N/A
Communications towers, regional notification (RSA 12-K:7)	7-21 days	N/A	7-21 days	N/A
Developments of regional impact (RSA 36:57)	N/A	N/A	14 days	N/A
Design review (RSA 674:4.I(b))	N/A	10 days, at least 2 public places	10 days	10 days
Zoning Board Applications
Special exception (RSA 674:33)	5 days	10 days, at least 2 public places	10 days	10 days
Zoning variances or appeals (RSA 674:33)	5 days	10 days, at least 2 public places	10 days	10 days
Equitable waiver (RSA 674:33-a)	5 days	10 days, at least 2 public places	10 days	10 days
Appeals to the Zoning Board of Adjustment (RSA 674:13, 674:15, 676:5)	5 days	10 days, at least 2 public places	10 days	10 days
Historic District Commission Applications
Historic District Commission	N/A	10 days, at least 2 public places	14 days	10 days

Rules of Interpretation for Table 126-1:
In Table 126-1, the type of development order or permit is set forth in Column (A), and the types of notice are prescribed in Columns (B) through (E). Nothing in this section prohibits the City from posting additional notice for such actions, such as posting a sign or a notice on the City's Internet Web site. Unless otherwise provided, the time periods referenced above mean the number of days (or other time period) preceding a public hearing on the matter. Notice shall conform to RSA 675:7 unless otherwise provided.
Column (B): "Publication" means publication of notice of such hearing in a newspaper of general circulation in the City.
Column (C): "Posting" means posting a notice at the City hall, or in whatever place other notices required by law in connection with municipal affairs are posted or customarily displayed.
Column (D): "Mail" means notice to abutters, the applicant, holders of conservation, preservation, or agricultural preservation restrictions, and every engineer, architect, land surveyor, or soil scientist whose professional seal appears on any plan submitted to the Board by certified mail of the date upon which the application will be formally submitted to the Board (RSA 676:4(d)). The number of days refers to the number of days prior to submission in the case of plans [RSA 676:4(d)], and before the date fixed for the hearing of the appeal (RSA 676:7). This definition does not apply to: (1) communications towers, which is governed by RSA 12-K:7 (See § 190-38B), or (2) developments of regional impact, which are governed by RSA 36:57. For developments of regional impact, notice of the decision must be provided to the Regional Planning Commission and affected municipalities within 72 hours of a decision (RSA 36:57).
Column (E): "Signage" is a sign erected by the applicant along each principal frontage of the lot, as determined by the Administrative Officer, providing notice of the impending action. Such sign shall be of a design, size and color approved by the Administrative Officer in order to maximize visibility of the sign and to call attention to its purpose. At a minimum, the sign shall include the title, a brief description of the requested action, the time, date, and place of public hearing or hearings on such actions, and instructions on contacting the Administrative Officer for further information on the action. Any sign required by this section shall be erected within 48 hours of the notification of the applicant of the requirement for posting, and at least 10 days prior to the hearing on such matter, and shall be kept in good repair (as determined by the Administrative Officer) by the applicant until the date and time of the last hearing notified by the sign. The lack of proper signage shall not be deemed to be insufficient notice of hearing unless there is a determination by the Administrative Officer that the applicant has not made a good faith effort to keep the required signs posted and in good repair.

§ 190-127 Revocation of permit or approval.

See RSA 676: 4-a.

§ 190-128 Land use permit.

Applicability. It shall be unlawful for any owner or person to erect, construct, reconstruct, convert or alter a structure or change the use, increase the intensity of use, or extend or displace the use of any building, sign, other structure or lot without applying for on forms supplied by the Administrative Officer, and receiving from him a permit therefor. When any change is made in a plot plan as originally submitted, an application for a revised permit shall be submitted.

Initiation. A land use permit shall be initiated by filing an application with the Administrative Officer. For purposes of administration, such permit and application procedure involving a structure may be made at the same time and combined with the permit required under the building code. In addition to plans and drawings required for submission under regulations of the Building Code,[1] all applications for permits shall be accompanied by two copies of a plan. One copy of such plan shall be returned to the applicant if approved by the Administrative Officer. Such plan shall be drawn to scale showing the actual dimensions of the lot to be built upon, the exact size and location on the lot of the building and accessory buildings to be erected, location and design of off-street parking and loading spaces, signs and such other information as may be necessary to determine and provide for the enforcement of this Part 3. The information required on the plan may be combined with the information required for any site plan required by this Part 3. A record of such applications and plans shall be kept in the office of the Administrative Officer.

Editor's Note: See Ch. 105, Building Construction.

Decision. The Administrative Officer shall approve, approve with conditions, or deny the application within 30 days. An appeal may be filed with the Zoning Board of Adjustment pursuant to § 190-136.

Approval criteria. The application shall be approved if it complies with the applicable provisions of this chapter. The application shall be denied if it does not conform to the applicable provisions of this chapter.

Amendments. An amendment to a land use permit shall be processed in the same manner as a new application.

Scope of approval. Authorization for a permit shall be null and void one year from date of approval of a land use permit if not used or extended.

Recording procedures. The applicant shall maintain custody of the permit. A copy of the application may be retained in the office of the Administrative Officer.

§ 190-129 Building permit.

See Chapter 105, Building Construction, of the Code of the City of Nashua.

§ 190-130 Certificate of use and occupancy.

New development.

Applicability. It shall be unlawful to use or occupy any structure or lot for which a permit is required herein without the owner applying for and receiving from the Administrative Officer a certificate of use and occupancy. Such certificate may be combined with the one that may be issued under the Building Code.

Initiation. A certificate of occupancy, either for the whole or a part of a new building or for alteration of an existing building, shall be applied for coincidently with the application for a building permit.

Decision. The Administrative Officer shall take action within 30 days after written notification that the erection or alteration of such building or part has been completed in conformity with the provisions of this Part 3. Failure of the Administrative Officer to act within 30 days shall be considered approval.

Change of use.

Applicability. A certificate of occupancy is required for the use or occupancy of vacant land, or for a change in the use of land, or for a change in the use of an existing building.

Initiation. The certificate of occupancy shall be applied for and issued before any such land shall be occupied or used, or such land or building changed in use.

Decision. The Administrative Officer shall take action with 30 working days after application has been made. Failure of the Administrative Officer to act within 30 working days shall be considered approval.

Recording. A record of all certificates of occupancy shall be kept on file in the office of the Administrative Officer, and a copy shall be furnished on request to any person having proprietary or tenancy interest in the building or land affected.

§ 190-131 Minor site plan amendments.

Applicability. No changes may be made to any approved site plan or preexisting as-built plan prior to the Site Plan Ordinance[1] adoption except upon application as follows:

Major amendments. If it is determined by the Planning Director that the proposed change is not a minor amendment as defined below, the applicant's amendment shall follow the procedures for site plans prescribed in § 190-146.

Minor amendments. The Planning Department shall review minor amendments for overall consistency with the approved site plan or as-built site for all zoning districts including overlay districts and for compliance with the standards below. For the purposes of this section, a minor amendment by definition is an administrative decision and does not constitute a site plan. The Planning Director or his authorized designee shall approve, conditionally approve, disapprove, or refer the request to the Planning Board. The applicant may appeal the Planning Director's decision to the Planning Board. The procedures and standards for minor amendments are as follows:

Minor changes in the color, exterior appearance, lot coverage, location, siting and height of buildings and structures or divisional walls may be authorized by the Planning Director if required for reasons or other circumstances not foreseen at the time the site plan was approved. No change authorized by this subsection may increase the dimensions of any building or structure by more 10% in the aggregate, or permit an accessory structure whose size is greater than 10% of the area of the principal building or structure. Changes in landscaping such as plant materials, minor alterations in the location of plantings, changes in plant quantities or sizes, changes to the location of internal sidewalks, or changes in location or number of parking spaces may be authorized by the Planning Director.

The Planning Director may require a revised site plan or as-built plan delineating all approved changes.

Temporary structures may be approved by the Planning Director upon the issuance of a temporary certificate of use for a period not to exceed 24 months. The structures must be promptly removed at the conclusion of the approval period, and the site returned to the approved final development plan requirements. In no event shall any property owner acquire a vested right to maintain such temporary structure beyond the twenty-four-month period provided in this section. This requirement is in addition to those of the Building Code. The Planning Director may approve an extension for an additional 24 months.

Changes in uses depicted and permitted on the approved site plan or approved as-built plan may be approved by the Planning Director provided it is a permitted use within the zoning district, or where a special a special exception or use variance is granted by the Zoning Board of Adjustment.

Seasonal outdoor dining associated with restaurant uses may be approved as a minor site plan amendment. Outdoor dining areas approved for seasonal use may not create any land use code nonconformities and shall comply with all applicable codes. Approvals shall be renewed annually for each calendar year via a new minor site plan amendment application. Outdoor dining minor site plan amendment applications shall be exempt from the fees required by § 190-267A(3), with the exception of a $25 annual permitting fee.

[Added 5-9-2023 by Ord. No. O-23-047]

Editor's Note: See Art. XVII of this chapter.

Appeals. The applicant may appeal the Planning Director's decision to the Planning Board.

§ 190-132 Zoning amendments.

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.

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.

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.

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.

Consistency. The Planning Board and Board of Aldermen shall consider whether the proposed zoning amendment is consistent with the Master Plan.

Statutory criteria. After adoption of the zoning amendments, the zoning ordinances shall be designed pursuant to RSA 674:17.

§ 190-133 Conditional use permits.

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.

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.

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.

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.

Notice. See § 190-126.

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.

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:

The building, structure or use is specifically authorized by the Use Matrix, § 190-15, Table 15-1, as a conditional use;

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;

The building, structure or use will not materially endanger the public health or safety;

The building, structure or use will not substantially devalue abutting property;

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;

The building, structure or use will not have a substantial adverse impact on highway or pedestrian safety;

The building, structure or use will not have a substantial adverse impact on the natural and environmental resources of the City; and

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.

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]

Amendments. An amendment to a conditional use permit may be approved in the same manner as an application for a new conditional use permit.

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.

Recording procedures. All conditional use permits shall be filed with the Administrative Officer.

§ 190-134 Special exceptions.

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.

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.

Initiation. An application for a special exception shall be filed with the Administrative Officer.

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.

Notice. See § 190-126.

Decision.

The Zoning Board of Adjustment shall render a decision approving, approving with conditions or denying the special exception after conducting a public hearing.

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.

Approval criteria.

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:

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;

The requested use will not create undue traffic congestion or unduly impair pedestrian safety;

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;

Any special regulations for the use set forth in this article are fulfilled; and

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.

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.

Amendments. An amendment to a special exception may be approved in the same manner as an application for a new special exception.

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]

Recording procedures. All special exceptions shall be filed with the Administrative Officer.

§ 190-135 Concurrent zoning amendment and site plan approval.

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:
•	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).
•	Consider a streamlined and creative review and approval process for industrial uses.

Applicability. This procedure may be applied to any of the following:

Any rezoning that meets the criteria for inclusionary zoning (§ 190-48); or

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

Any other situation in which this chapter expressly authorizes a concurrent rezoning and site plan approval pursuant to this section. [Examples: Flexible Use District]

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.

Completeness review. See § 190-125.

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.

Decision.

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.

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.

Approval criteria, amendments, scope of approval and recording procedures. For procedures applicable to the rezoning, see § 190-146 for procedures applicable to the site plan.

§ 190-136 Appeals from administrative decision. [1]

Applicability. This section applies to any appeal of a decision of the Administrative Officer filed pursuant to RSA 676:5.

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.

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.

Notice. See § 190-126.

Decision.

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.

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.

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.

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.

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.

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.

Editor's Note: The purpose paragraph of this section was deleted 2-26-2008 by Ord. No. O-08-07.

§ 190-137 Variances from zoning. [1]

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.

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.

Completeness review. See § 190-125.

Notice. See § 190-126.

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.

Approval criteria.

Pursuant to RSA 674:33, the Zoning Board of Adjustment may authorize a variance from the terms of Part 2 if:

The variance will not be contrary to the public interest;

Special conditions exist such that literal enforcement of the ordinance results in unnecessary hardship;

The variance is consistent with the spirit of the ordinance;

Substantial justice is done;

The variance does not diminish the value of surrounding properties.

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).

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:

Any variance granted under this paragraph shall be in harmony with the general purpose and intent of the Zoning Ordinance.

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.

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.

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]

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.

Editor's Note: The purpose paragraph of this section was deleted 2-26-2008 by Ord. No. O-08-07.

§ 190-138 General requirements.

Purpose: This section establishes general regulations applicable to all subdivisions, administrative provisions, and procedures for classifying plan applications as major or minor.

Applicability. This article applies to any subdivision, as defined in § 190-264, within the corporate limits of the City of Nashua. No person shall sell or transfer ownership of any lot or parcel of land by reference to a plan of a subdivision before such plan has been duly recorded with the Register of Deeds, unless such subdivision was created prior to the adoption of this chapter and any other subdivision ordinance applicable thereto. No building permit or certificate of use and occupancy shall be issued for any parcel or plan of land which was created by subdivision after the effective date of this chapter, and no construction of any public or private improvements shall be commenced, except in conformity with the requirements of this chapter. A final subdivision plan shall be approved by the Administrative Officer before the subdivision of a parcel may be recorded.

When a subdivision plan is required. No person shall subdivide land without making and recording a plan and complying fully with the provisions of this article and all other state and local laws and regulations applying to subdivisions.

Recordation of unapproved plan prohibited. No subdivision plan shall be recorded with the registry of deeds until such plan shall have been approved, and such approval evidenced thereon, in accordance with the regulations set forth in this Part 3.

Initiation.

Article XLIII specifies what constitutes a completed application sufficient to invoke jurisdiction to obtain plan approval. A completed application means that sufficient information is included or submitted to allow the Board to proceed with consideration and to make an informed decision.

A completed application sufficient to invoke jurisdiction of the Planning Board shall be submitted to and accepted by the Board only at a public meeting of the Planning Board, with notice as provided in RSA 676:4I(d). (See § 190-126.)

The applicant shall file the application with the Board or its agent at least 15 days prior to the meeting at which the application will be accepted.

The application shall include the names and addresses of the applicant, all holders of conservation, preservation, or agricultural preservation restrictions as defined in RSA 477:45, and all abutters as indicated in the City records. Abutters shall also be identified on any plan submitted to the Board. The application shall also include the name and business address of every engineer, architect, land surveyor, or soil scientist whose professional seal appears on any plan submitted to the Board.

The applicant may, but is not required, file a preapplication conceptual plan pursuant to § 190-139 prior to filing a design review or a conditional plan.

Completeness review and acceptance of application.

The Administrative Officer shall review an application for subdivision plan approval consistent with § 190-125. After completeness review by the Administrative Officer, the applicant may choose to resubmit the application or to present it to the Planning Board.

The Board shall, at the next regular meeting or within 30 days following the delivery of the application, for which notice can be given in accordance with the requirements of Subsection B, determine if a submitted application is complete according to Article XLIII and shall vote upon its acceptance. Upon determination by the Board that a submitted application is incomplete according to the Board's regulations, the Board shall notify the applicant of the determination in accordance with RSA 676:3, which shall describe the information, procedure, or other requirement necessary for the application to be complete. The Board may, upon motion of any member, determine that an application is complete and begin formal consideration of the application.

Decision.

Upon determination by the Board that a submitted application is complete according to Article XLIII, the Board shall begin formal consideration.

The Planning Board shall act to approve, conditionally approve as provided in § 190-141, or disapprove the plan within 65 days, subject to extension or waiver as provided in Subsection D(3).

The Planning Board may apply to the Board of Aldermen for an extension not to exceed an additional 90 days before acting to approve or disapprove an application. The applicant may waive the requirement for Planning Board action within the time periods specified in Subsection D(2) and consent to such extension as may be mutually agreeable.

Upon failure of the Board to approve, conditionally approve, or disapprove the application, the Board of Aldermen shall, upon request of the applicant, immediately issue an order directing the Board to act on the application within 30 days. If the Planning Board does not act on the application within that thirty-day time period, then within 40 days of the issuance of the order, the Board of Aldermen shall certify on the applicant's application that the plan is approved pursuant to this subsection , unless within those 40 days the Board of Aldermen has identified in writing some specific subdivision regulation or zoning or other ordinance provision with which the application does not comply. Such a certification, citing this subsection, shall constitute final approval for all purposes including filing and recording under RSA 674:37 and 676:18, and court review under RSA 677:15.

In case of disapproval of any application submitted to the Planning Board, the ground for such disapproval shall be adequately stated upon the records of the Planning Board.

Notice. The Planning Board shall provide notice as provided in RSA 676:4.I(d) and § 190-126. Any subdivision plan other than a lot-line relocation that does not create additional lots shall require on-site notice in accordance with § 190-126 of this chapter, with the title of the action to read "SUBDIVISION."

Decision. The Planning Board shall approve or deny the plan after conducting a public hearing on the application. In the event of disapproval, the Board shall state the reasons for disapproval in writing to the applicant or his agent.

Approval criteria. In reviewing the subdivision plan, the Board shall at a minimum make the following determinations:

That the subdivision plan is consistent with the goals, objectives and strategies adopted as part of the City's Master Plan.

The subdivision complies with all applicable standards of Part 2 and Parts 4 through 8 of this chapter.

That the unique aesthetic, architectural and visual character of nearby buildings or cluster of buildings is maintained, and that the subdivision plan is in harmony with such character.

That the subdivision plan attempts to balance with the allowed use the preservation of natural features such as knolls, rock outcroppings, ravines unique views, large trees, clusters of vegetation, and areas of vegetation which would serve as buffer areas between dissimilar adjacent land uses.

That the proposed subdivision shall not generate excessive traffic or demands on parking.

That adequate municipal services exist to support the proposed use.

That the subdivision plan provides adequate means of handling stormwater runoff, and meets the criteria for stormwater handling and treatment set forth in Article XXXI. For sites which are outside of the Water Supply Protection District, the Board may waive the requirements for recharge if the applicant demonstrates that meeting the recharge standard is not practicable.

That all areas provided for detention, treatment, infiltration, or other handling of stormwater are designed so as to be safe, and in keeping with the surrounding character of the site. For sites which are outside of the Water Supply Protection District, the Board may allow the use of alternate methods of stormwater handling if the applicant demonstrates that such methods would be more in keeping with the intent of this section and with the character of the site.

That the subdivision is compatible with the existing character of the neighborhood, and to ensure that it preserves natural character features of the area or neighborhood.

That the subdivision does not constitute scattered or premature development as would involve danger or injury to health, safety, or prosperity by reason of the lack of water supply, sewage disposal, drainage, transportation, schools, fire protection, or other public services which necessitate the excessive expenditure of public funds for the supply of such services. If it is determined by the Planning Board that the proposed subdivision is scattered or premature, the subdivision may be disapproved or special site changes, on or off site, may be required to address any items of concern. Changes to the plan may be required to mitigate those impacts that caused the subdivision to be declared scattered or premature. The Planning Board may require the applicant to make said improvement(s) prior to, or as a condition of, approval of the subdivision.

Public hearing.

Except as provided in this section, no application may be denied or approved without a public hearing on the application. At the hearing, any applicant, abutter, holder of conservation, preservation, or agricultural preservation restriction, or any person with a direct interest in the matter may testify in person or in writing. Other persons may testify as permitted by the subdivision regulations or the Board at each hearing.

Public hearings are not required when the Board is considering or acting upon:

Minor lot line adjustments or boundary agreements which do not create buildable lots, except that notice to abutters and holders of conservation, preservation, or agricultural preservation restrictions shall be given prior to approval of the application in accordance with Subsection D, and any abutter or holder of conservation, preservation, or agricultural preservation restrictions may be heard on the application upon request; or

Disapprovals of applications based upon failure of the applicant to supply information required by the regulations, including identification of abutters or holders of conservation, preservation, or agricultural preservation restrictions; or failure to meet reasonable deadlines established by the Board; or failure to pay costs of notice or other fees required by the Board.

Scope of approval.

After approval and recording of the plan, the applicant may proceed with: site preparation/grading (subject to obtaining any permit required in Part 8); and the installation of required improvements (subject to approval of construction plans as described in § 190-142, below).

The Planning Board Chair, Vice Chair or Secretary shall sign the plan.

In the event the applicant is unable to complete the required improvements, and such improvements are deemed necessary for the preservation of the public health and safety, the City of Nashua may compel the delivery of the deed and guarantees in order to complete the improvements as required.

The applicant shall deliver a full covenant and warranty deed to all dedicated lands and improvements in proper form for recording.

Recording procedures. See RSA 674:37.

Coordination of flexible zoning applications with subdivision approval. An application for a rezoning (§ 190-132) or a conditional use permit (§ 190-133) may be initiated concurrent with the initiation of an application for approval of a preliminary subdivision plan.

§ 190-139 Preliminary conceptual consultation.

Prior to the filing of an application for plan approval, the applicant may, and is encouraged to, submit to the Planning Board and the Administrative Official a preliminary conceptual plan. The purpose of preliminary conceptual consultation is to review of the basic concept of the proposal and suggestions that might be of assistance in resolving problems with meeting requirements during final consideration.

Preliminary conceptual consultation does not bind either the applicant or the Board. Statements made by Planning Board members shall not be the basis for disqualifying said members or invalidating any action taken. The Board and the applicant may discuss proposals in conceptual form only and in general terms such as desirability of types of development and proposals under the Master Plan.

The applicant should provide general subdivision information outlining conditions of the site and the proposed development, including means of providing water and sewerage, topography of site, layout of streets, lots and other features, and the relationship of the proposed subdivision to existing streets, highways and community facilities. Submission of the conceptual plan and supporting information does not require formal application.

Preliminary conceptual consultation may occur without giving formal public notice as required under § 190-138E, but such discussions may occur only at formal meetings of the Board.

Preapplication review is optional. It is separate and apart from formal consideration under § 190-138. The time limits for acting under § 190-138 do not apply until formal application is submitted under § 190-138B.

§ 190-140 Preapplication design review.

Prior to submission of an application for Board action, an applicant may request to meet with the Board or its designee for nonbinding discussions beyond the conceptual and general stage, involving more specific design and engineering details of the potential application.

The design review phase may proceed only after proper notification, as set forth in § 190-138E.

Statements made by Board members shall not be the basis for disqualifying said members or invalidating any action eventually taken on the application.

A rough sketch of the site should be provided, showing:

Location of lot lines;

Lot measurements; and

The streets surrounding the site.

§ 190-141 Conditional approval.

Applicability. The Board may grant conditional approval of an application, but the plan will not be signed or recorded until all of the conditions have been met.

Decision.

Conditional approval shall be rendered in accordance with § 190-138.

Per RSA 676:4 I(i), a conditional plan shall be certified to the Planning Board by the Administrative Officer where:

The plan involves only minor plan changes whether or not imposed by the Board as a result of a public hearing, compliance with which is administrative and which does not involve discretionary judgment; or

Conditions which are in themselves administrative and which involve no discretionary judgment on the part of the Board; or

Conditions with regard to the applicant's possession of permits and approvals granted by other Boards or agencies or approvals granted by other Boards or agencies.

Approval shall be in the form of a written letter to the applicant (or contact person as listed on the application) advising that the conditional plan meets all requirements of this chapter and that the original conditional plan may be submitted to the Administrative Officer.

Scope of approval. If the applicant has not complied with the conditions of approval within one year, the approval is considered null and void and the applicant must submit a new subdivision application. The Planning Board may extend this time period at the request of the applicant.

§ 190-142 Construction plans.

Purpose: The purpose of this section is to provide uniform standards and procedures for the preparation and inspection of subdivision improvements.

Applicability.

Following approval of the subdivision or site plan, the applicant shall have prepared, by a New Hampshire licensed registered professional engineer, construction plans, consisting of complete construction drawings and specifications of all easements, streets, traffic control devices, street lights, sanitary sewers, stormwater facilities, water system facilities, sidewalks and other improvements required by this chapter and the Board of Public Works specifications.

Before the Administrative Officer approves the land use permit, the applicant shall comply with either Subsection A(2)(a) or (b) below:

The applicant shall complete all required street and utility improvements to the satisfaction of the City Engineer, consistent with Part 4. The City Engineer shall submit a written statement to the Board that the improvements comply with the standards required by this section; or

The applicant shall provide performance guarantees pursuant to § 190-143. Regardless of whether performance guarantees are provided, the applicant shall complete all improvements consistent with Subsection A(3) below, before any building on a lot on an approved conditional plan or portion thereof to be served by such improvements is sold for occupancy or is occupied as set out in each subsection below.

No certificate of use and occupancy shall be issued until:

The applicant completes all required street improvements except curbing, sidewalk paving, final wearing coat of asphalt on streets, and stone bounds; and

All sidewalk areas are paved. A certificate of use and occupancy may be issued during the winter months if the sidewalks remain unpaved if the applicant posts security for completion of the sidewalks consistent with § 190-143. Sidewalks on lots occupied during winter conditions shall be paved prior to the completion of the lot's landscaping or the next succeeding June 1, whichever is earlier.

Telephone service is available to the dwelling. A certificate of use and occupancy may be issued if a prospective purchaser of the dwelling waives the requirement for telephone service in writing.

Initiation. No installation of public infrastructure shall commence until a permit to construct is issued by the City Engineer. The applicant shall pay all permit and inspection fees as authorized by Board of Public Works. Upon issuance of the permit, the applicant shall arrange for a preconstruction meeting with the City Engineer's office.

Completeness review. Construction plans shall include the information required by Article XLIII to this chapter.

Notice. No notice is required for the approval of construction plans.

Inspections. The applicant shall request approval of all improvements required by this chapter. The City Engineer shall inspect such improvements, and shall approve or deny the construction plans consistent with the criteria established in this chapter. The City Engineer shall have 20 calendar days from the date of request to grant or deny the requested approval. Failure of the City Engineer to grant or deny the requested approval within the 20 calendar days shall be deemed to constitute approval. In the event of disapproval a written notice shall be given stating the reasons for disapproval with a complete list of deficiencies to be corrected by the applicant. Upon mutual agreement of both parties, this time period may be modified. The Administrative Officer shall set forth on each approved conditional plan the substance of the foregoing requirements, if applicable, and the City Engineer shall furnish his approval on a form suitable for recording. If approval or disapproval is not given within 20 days the City Clerk shall furnish approval on a form suitable for recording.

Standards.

All installations of improvements shall conform to the approved construction plans. The applicant shall not modify the design and/or specifications prior to construction, unless the City Engineer approves such changes. The applicant shall notify the City Engineer in advance of any changes to be made from the approved drawings. In the event that actual construction work deviates from that shown on the approved construction plans, such unapproved work shall constitute a violation of this chapter and shall be remedied in accordance with § 190-157. The applicant shall correct the installed improvements to conform to the approved construction plans. In addition, the Planning Board or Administrative Officer may take such other actions as may be deemed appropriate, including but not limited to revocation of permits already issued and/or withholding of future approvals and permits until the violation is corrected.

Prior to final inspection of the required improvements, the applicant shall submit to the City Engineer one reproducible copy and two prints of as-built engineering drawings for each of the required improvements that have been completed. Each reproducible copy shall be mylar or other media approved by the City Engineer. The applicant shall also submit as-built drawings in an electronic format approved by the City Engineer. Each set of drawings shall be recertified by the applicant's surveyor indicating the date when the as-built survey was made. As-built drawings shall show following:

The constructed vertical elevation, horizontal location and size of all sanitary and storm sewers, manholes, inlets, junction boxes, detention basins and other appurtenances or elements of the sewerage and storm drainage systems constructed to serve the subdivision.

All grading, excavations, open cutting and similar land surface disturbances to be mulched, seeded, sodded or otherwise protected to ensure compliance with Article XXVI of this chapter.

Water lines, valves, fire hydrants and other appurtenances or elements of the water distribution system constructed to serve the project. Such information shall include the horizontal location and size of waterlines and location and description of valves with dimensional ties.

The location of all street rights-of-way, alignments, widths and vertical elevations.

All control points and monumentation.

Acceptance of improvements.

Approval of the installation of improvements by the City Engineer shall not constitute acceptance by City of Nashua for dedication purposes. The installation of improvements in any subdivision shall, in no case, serve to bind City of Nashua to accept such improvements for maintenance, repair or operation thereof. Such acceptance is subject to the existing regulations concerning the acceptance of each type of improvement.

The specific standards for acceptance of easements are subject to the technical design standards of this chapter and any other adopted policy or manual of City of Nashua or state agency with jurisdiction over such improvements. All easements shall comply with this chapter prior to acceptance.

City of Nashua is not responsible for any street, or other improvement, or the delivery or provision of public services, even if a street is used by the public, unless and until the dedication of those improvements has been accepted by the City.

When improvements are constructed in accordance with the requirements and conditions of these regulations and the specifications of this article, and the applicant submits as-built drawings to the City Engineer, the City shall accept the improvements for maintenance by City of Nashua. This subsection does not apply to improvements maintained by another entity.

These provisions do not relieve the applicant or his authorized agent or contractor of any responsibility to notify any agency for City of Nashua of completed work and formal request for inspection of same. The agency having jurisdiction shall inspect and approve all completed work prior to the release of any applied performance sureties.

Site cleanup. The applicant shall remove all equipment, material, and general construction debris from the subdivision and from any lot, street, public way or property therein or adjacent thereto. Dumping of such debris into sewers, onto adjacent property or onto other land in the City of Nashua is prohibited.

§ 190-143 Financial guarantees.

[Amended 11-23-2010 by Ord. No. O-10-35]

Purpose: This section establishes procedures for bonding, subdivision improvement agreements or other guarantees where improvements are not completed before final approval as provided by RSA 674:36.III(b). This section also establishes guarantees to warrant and to ensure proper maintenance of the improvements.

Financial guarantees. No subdivision plat shall be recorded prior to the applicant providing an acceptable financial guarantee for all public and/or common private improvements, together with easements for any public rights-of-way, utility or storm drainage easements, slope and access easements, conservation easements, agreements to provide a private easement, public improvement guarantee or any other required legal document.

Acceptable financial guarantee. The following types of financial guarantees are acceptable to assure the completion of the required improvements.

A nonlapsing letter of credit drawn on a bank authorized to do business in New Hampshire payable to the City and deposited with it.

A nonlapsing surety bond issued by a surety company authorized to do business in New Hampshire, to be filed with the City.

Cash or a certified check to be deposited with the City under an escrow agreement.

Amount of financial guarantee. The amount of the financial guarantee shall be approved by the City Engineer as sufficient to secure to the City the satisfactory construction and installation of the required public and private improvements, including contingency and inflation factors. A licensed professional engineer shall submit a construction cost estimate acceptable to the City Engineer which includes breakdowns by quantity of material and unit costs, along with contingencies, prior to the presentation of any financial guarantee.

Legal provisions. All financial guarantees shall comply with all statutory requirements and shall be satisfactory to Corporation Counsel as to form, sufficiency and manner of execution as set forth in these regulations.

Duration. Construction of the required improvements shall be completed within two years of approval. If construction is not completed during this time period, the City Engineer may grant an extension of up to one additional year. Failure to complete all street and utility improvements to the satisfaction of the City Engineer within the time specified shall mean forfeiture of the bond, certified check or deposit in escrow.

Reduction of financial guarantees. A reduction of a financial guarantee may be authorized by the City Engineer upon completion of a significant portion of the subdivision, and then only to the ratio that the public or private secured improvement so completed relates to the current total cost of the improvements for the subdivision plat. In no event shall a financial guarantee be reduced below 25% of the principal amount until all public improvements are completed and, if required, accepted by the Board of Aldermen, and all required private improvements are complete. For private improvements a financial guarantee shall be reduced upon satisfactory completion of the required private improvements and then only to the ratio that the private improvement so accepted bears to the total required private improvements for the subdivision plat. In no event shall a financial guarantee be reduced below 25% of the principal amount until all public or secured private improvements are completed to the satisfaction of the City Engineer.

Release of financial guarantees. The release of a financial guarantee shall not be undertaken until the City Engineer has submitted a certificate stating that all required improvements have been satisfactorily completed, an acceptable as-built plan has been submitted, a maintenance guarantee has been provided pursuant to Subsection H, Maintenance guarantee, and, if required, the public improvements have been accepted by the Board of Aldermen.

Maintenance guarantee. The applicant shall be required to file a maintenance guarantee with the City at the time of release of the financial guarantee. The maintenance guarantee shall be in an amount considered adequate by the City Engineer and in a form satisfactory to Corporation Counsel in order to assure the satisfactory condition of the required improvements, including all lot improvements on the individual subdivided lots. The maintenance guarantee shall be in an amount reflecting 10% of the cost of the completed improvements, and shall in no event be less than 10% of the original financial guarantee. The maintenance guarantee shall be for a period of two years after the date of the acceptance of the improvements by the Board of Aldermen, if required, or by the City Engineer. Unsatisfactory condition of the improvements as determined by the City Engineer within the time specified shall mean forfeiture of the bond, certified check or deposit in escrow.

§ 190-144 Revocation of recorded approval.

A plan may be revoked as provided in RSA 676:4-a.

§ 190-145 Approved subdivision exemption; active and substantial development.

Approved subdivisions shall be protected from future changes in regulations and ordinances in accordance with NH RSA § 674:39 as summarized by the following:

Approved subdivision exemption. Every subdivision approved by the Planning Board shall be exempt from all subsequent changes in subdivision regulations and zoning ordinances adopted by the City of Nashua, except those regulations and ordinances which expressly protect public health standards, such as water quality and sewage treatment requirements, for a period of four years after the date of certification of the subdivision by the Planning Board; provided, however, that once substantial completion of the improvements as shown on the plans have occurred in compliance with the approved plans, or the terms of said approval or unless otherwise stipulated by the Planning Board, the rights of the owner or the owner's successor in interest shall vest and no subsequent changes in site plan regulations or zoning ordinances shall operate to affect such improvements; and further provided that:

Active and substantial development or building has begun on the site by the owner or the owner's successor in interest in accordance with the approved plans within 12 months after the date of approval (certification by the Planning Board), or in accordance with the terms of the approval, and, if a bond or other security to cover the costs of roads, drains, or sewers is required in connection with such approval, such bond or other security is posted with the City, at the time of commencement of such development;

The development remains in full compliance with the public health regulations and ordinances of the City of Nashua; and

At the time of approval (certification of the plans by the Planning Board), the subdivision conforms to the subdivision regulations, and zoning ordinances then in effect at the site of such plan.

Active and substantial development.

For purposes of these regulations, "active and substantial development" shall be defined as:

Construction of and/or installation of basic infrastructure to support the development (including all of the following: at least one building foundation wall/footing, roadways, accessways, etc., to a minimum of gravel base; and utilities placed in underground conduit ready for connection to proposed buildings/structures) in accordance with the approved plans; and

Construction and completion of drainage improvements to service the development (including all of the following: detention/retention basins, treatment swales, pipes, underdrain, catch basins, etc.) in accordance with the approved plans; and

All erosion control measures (as specified on the approved plans) must be in place and maintained on the site; and

Items in Subsection B(1)(a), (b) and (c) shall be reviewed and approved by the Department of Public Works or designated agent.

Movement of earth, excavation, or logging of a site without completion of items in Subsection B(1)(a), (b), (c) and (d) above, shall not be considered active and substantial development. Plans approved in phases shall be subject to this definition for the phase currently being developed. The Planning Board may, for good cause, extend the twenty-four-month period set forth in Subsection A(1) above.

§ 190-146 Site plan procedures generally.

Purpose: This section establishes general regulations applicable to all site plans and associated administrative provisions.

Applicability.

This article applies to any development or change or expansion of use of tracts for nonresidential uses or for multifamily dwelling units containing at least four dwelling units, whether or not such development includes a subdivision or resubdivision of the site. (Reference: RSA 674:43)

Detached single-family dwelling units, duplex and triplex developments on individual lots of record are exempt from this section.

Development activities subject to the requirements of this section may be carried out only in substantial conformance with the approved site plan and any conditions or restrictions to the site plan approval.

Any substantial deviation from the approved site plan, unless approved in advance and in writing by the Administrative Officer, is a violation of this chapter.

No certificate of compliance shall be issued if the development activities do not conform to the approved site plan.

Initiation. The site plan shall be filed with the Administrative Officer and shall include the information required by Article XLIII.

Decision.

The Planning Board shall conduct a public hearing before acting on a site plan.

If the Planning Board does not approve or disapprove a site plan within 65 days after the submission thereof to it, it shall be deemed to have been approved, and the certificate of the City as to the date of submission of the site plan for approval and the failure to take action thereon within such time shall be issued on demand and shall be sufficient in lieu of the written endorsement or other evidence of approval herein required. The applicant may waive this requirement and consent to an extension of such period. The City Clerk shall be the officer who shall issue the certificate in case of the failure of the Board to approve or disapprove the site plan.

The grounds for disapproval of a site plan shall be adequately stated upon the records of the Planning Board. Any proposed site plan disapproved by the Planning Board shall be returned to the applicant with a written statement giving the reason for the disapproval.

Site plan approval, approval with modification or disapproval must be decided on an individual-case basis. The Planning Board shall not disapprove a proposed site plan for reasons other than those listed or referred to in Subsection F of this section below. Any modifications or reasons for disapproval must be clearly described to the applicant in writing.

The Administrative Officer will sign and date the site plan to indicate approval. Approval shall become effective immediately.

Approval criteria. In determining the acceptability of a proposed site plan, the Board shall take into consideration the effect of the proposed development on health, safety, nuisance, property values, aesthetics, traffic conditions and future highway improvements. The site plan shall conform to each of the following criteria unless a waiver from a particular standard is granted pursuant to § 190-148:

The site plan shall be consistent with the goals, objectives and strategies adopted as part of the City's Master Plan.

The site plan shall comply with all applicable requirements of Parts 2 and 4 through 8 of this chapter.

Unique aesthetic, architectural and visual character of nearby buildings or cluster of buildings shall be maintained, and that the site plan shall be in harmony with such character.

The proposed use shall be able coexist with the surrounding uses, and the proposed use shall not have significant impact on the surrounding uses.

The proposed use shall not have significant health and safety impacts on surrounding properties or on the general population of the City.

The proposed use shall not generate excessive traffic or demands or parking as determined in accordance with Article XXIII. If the Planning Board determines that the development contemplated by the proposed site plan would generate substantial traffic into and out of the proposed development, the Board may require the owners of the proposed development to make improvements to the street or streets from which access will be gained to the development site. Such improvements may include construction of additional street width for additional vehicle capacity, turning lanes, median dividers and/or traffic-control signals and signage but shall be limited only to those streets which directly abut the development site or are no more than 500 feet from a property line of the proposed development. All traffic control devices (pursuant to RSA 47:17, VIII) and all traffic-calming measures must be approved by the Board of Aldermen through legislation. Any pavement widenings shall only be required within an existing right-of-way and/or on land under the control of the developer. In order to reduce the number of driveway access points on major arterial streets, the Planning Board may require the use of common driveways by adjoining properties, unless such requirements would be unduly burdensome or inhibit traffic circulation.

[Amended 10-26-2010 by Ord. No. O-10-33]

Adequate municipal services exist to support the proposed use.

The site plan attempts to balance with the allowed use the preservation of sensitive site features as described in § 190-174B(1).

The site plan provides a means of handling stormwater runoff that meets the criteria set forth in Article XXXI. For sites that are outside of the Water Supply Protection District, the Board may waive the requirements for recharge if the applicant demonstrates that meeting the recharge standard is not practicable.

All areas provided for detention, treatment, infiltration, or other handling of stormwater shall be in keeping with the surrounding character of the site. For sites which are outside of the Water Supply Protection District, the Board may allow the use of alternate methods of stormwater handling if the applicant demonstrates that such methods would be more in keeping with the intent of this section and with the character of the site.

(11)

The site plan provides adequate means of handling on-site vehicular ingress and egress movements in relation to traffic movements along the abutting streets.

(12)

The site plan provides adequate means of capturing, containing and treating wastewater or excess water used on the site and preventing the discharge of any such water onto any adjacent property, street, water body or waterway.

(13)

The site plan provides adequate means of handling parking and loading, and number of off-street parking and loading spaces;

(14)

The site plan provides coordination with future highway improvements, including but not limited to right-of-way expansion, jug-handles, access roads and service roads, for any street within the City which has been adopted and included as a part of the major street plan (RSA 674:9 — 674:10).

(15)

The site plan provides adequate protection from encroachment on adjoining residential land uses.

(16)

The site plan provides adequate consideration for handling pedestrian circulation, lighting and location of signs.

(17)

Landscaping shall conform to the requirements of Article XXVII.

(18)

The hours of operation for the proposed development does not create adverse impacts on surrounding neighborhoods. The Planning Board shall review the hours of operation proposed in any site plan, including but not limited to hours during which the site is occupied by employees, hours during which the site is open for business, hours during which deliveries are made to the site, hours during which shipments are made from the site, and the hours during which refuse removal or other services involving truck traffic on the site are performed for any businesses located within the site to ensure that the character of nearby neighborhoods is not adversely impacted. The Board may stipulate limitations on such hours if it deems that such stipulation would preserve the character of impacted neighborhoods.

(19)

The Planning Board, prior to final approval of any plan, may require the posting of a bond or escrow agreement in such amount as is approved by the Board as being reasonably necessary to ensure completion of all public improvements required as conditions of approval of such plan, in such form as may be approved by the City Solicitor/Corporation Counsel.

Scope of approval.

After the site plan is approved, a building permit must be issued by the Administrative Officer or the use must be established within 12 months from the date of site plan approval. Failure to do so within the twelve-month period shall make approval null, and void and no building permit shall be issued. This section shall apply to all site plans previously approved by the Planning Board that have yet to expire. The Planning Board may approve a longer period of time where warranted by economic conditions, development phasing, or other unique circumstances.

The Administrative Officer shall inspect the site for compliance with the approved site plan before a building permit is issued for the project. The Administrative Officer shall write a letter to the applicant stating any deficiencies.

The owner of a use or property subject to the site plan will be notified if site plan approval must be suspended. Suspension is caused by:

Violation of any applicable provision of this section; or

Failure to comply with any applicable required conditions.

A change in ownership of the property or structures subject to the site plan does not affect its validity.

The applicant shall not alter, expand, intensify, extend or increase any use or structure approved pursuant to the site plan unless the site plan is amended pursuant to Subsection G below.

Approval of a site plan is deemed to constitute approval of any minor plan amendment authorized by § 190-131, unless otherwise expressly provided in the conditions to the site plan approval.

Recording procedures. A copy of an approved site plan shall be maintained on file with the Administrative Officer.

Amendments. A minor amendment shall be processed as an administrative permit pursuant to § 190-131. If it is determined by the Planning Director that the proposed change is not a minor amendment as defined in § 190-131, the applicant's amendment shall follow the procedures for site plans prescribed in this section.

§ 190-147 Performance guarantees.

In lieu of the completion of street work and utility installations prior to the final approval of a plan, the applicant may provide performance guarantees as set forth in § 190-143.

§ 190-148 Waiver of site plan standards.

Purpose: This section establishes the rules of procedure for the Planning Board for waiver of site plan standards as set forth in Parts 3 through 6, as authorized by RSA 674:44.III.(e).

Applicability. Pursuant to RSA 674:44 III(e), the Planning Board may waive of any portion of the site plan regulations (Parts 3 through 6).

Initiation. An application for a waiver may be filed with the application for subdivision or site plan review, along with a statement of the grounds for granting the waiver. The applicant shall submit in writing to the Administrative Officer a letter specifying the section for which a waiver is requested and stating the grounds for the request along with all supportive facts upon which he/she believes a waiver is warranted. The letter shall be transmitted along with the application for approval of a site plan or subdivision plan.

Decision. The Planning Board shall approve, deny, or approve with conditions, a waiver at the same time as the decision relating to the related application.

Approval criteria. The Planning Board shall not approve a waiver unless it finds, based on substantial competent evidence presented at the public hearing, that:

Strict conformity would pose an unnecessary hardship to the applicant; and

The waiver would not be contrary to the spirit and intent of the regulations.

Completeness review, notice, amendments, scope of approval, and recording procedures. See procedures applicable to site plan approval.

§ 190-149 Approved site plan exemption; active and substantial development.

Approved site plans shall be protected from future changes in regulations and ordinances in accordance with NH RSA 674:39 as summarized by the following:

Approved site plan exemption. Every site plan approved by the Planning Board shall be exempt from all subsequent changes in site plan regulations and zoning ordinances adopted by the City of Nashua, except those regulations and ordinances which expressly protect public health standards, such as water quality and sewage treatment requirements, for a period of four years after the date of certification of the site plan by the Planning Board; provided, however, that once substantial completion of the improvements as shown on the plans have occurred in compliance with the approved plans, or the terms of said approval or unless otherwise stipulated by the Planning Board, the rights of the owner or the owner's successor in interest shall vest and no subsequent changes in site plan regulations or zoning ordinances shall operate to affect such improvements; and further provided that:

Active and substantial development or building has begun on the site by the owner or the owner's successor in interest in accordance with the approved plans within 12 months after the date of approval, or in accordance with the terms of the approval, and, if a bond or other security to cover the costs of roads, drains, or sewers is required in connection with such approval, such bond or other security is posted with the City at the time of commencement of such development;

The development remains in full compliance with the public health regulations and ordinances of the City of Nashua; and

At the time of approval, the site plan conforms to the site plan regulations, and zoning ordinances then in effect at the site of such plan.

Active and substantial development.

For purposes of these regulations, "active and substantial development" shall be defined as:

Construction of and/or installation of basic infrastructure to support the development (including all of the following: foundation walls and footings of proposed buildings; roadways, accessways, parking lots, etc., to a minimum of gravel base; and utilities placed in underground conduit ready for connection to proposed buildings/structures) in accordance with the approved plans; and

All erosion control measures (as specified on the approved plans) must be in place and maintained on the site; and

Items in Subsection B(1)(a), (b) and (c) shall be reviewed and approved by the Department of Public Works or designated agent.

Movement of earth, excavation, or logging of a site without completion of items in Subsection B(1)(a), (b), (c) and (d) above shall not be considered "active and substantial development." Plans approved in phases shall be subject to this definition for the phase currently being developed. The Planning Board may, for good cause, extend the twelve-month period set forth in Subsection A(1) above.

§ 190-150 Wetlands application.

The Conservation Commission reviews and submits a recommendation on wetlands applications before final action is taken by the Zoning Board of Adjustment. See Article XI.

§ 190-151 Certificate of approval from Historic District Commission.

See § 190-22.

§ 190-152 Appeals from zoning ordinances.

See § 190-136.

§ 190-153 Variances from zoning ordinances.

See § 190-137.

§ 190-154 Planning Board waivers.

See § 190-148.

§ 190-155 Generally.

This chapter shall be enforced as provide in RSA Chapter 676. For purposes of this Part 3, the Administrative Officer is hereby granted authority to enforce the provisions of this chapter in addition to any other official, agency or board enumerated in RSA Chapter 676.

§ 190-156 Zoning violations.

See RSA 676: 11-676:13 and 676:15-676:19.

§ 190-157 Subdivision and site plan violations.

In addition to the authority cited in § 190-155, see RSA 676: 16 and 676:18.

Nashua City Zoning Code

PART 3

Procedures

Purpose: This section establishes procedures and time limits for challenging decisions.

§ 190-125 Completeness review and acceptance of applications.

Applicability. These procedures shall be used to review any application for completeness unless a different procedure is established elsewhere in this chapter.

Application materials.

Review procedures.

Jurisdiction. Unless the provisions pertaining to a particular application prescribe otherwise:

The Administrative Officer shall review all applications for approval of a development order or a permit for completeness.

All decisions of the Administrative Officer or other administrative official pertaining to completeness may be appealed to:

The Zoning Board of Adjustment, in the case of a zoning application (Article XV) of this chapter or zoning compliance review for building permits or certificates of occupancy; or

[2]

The Planning Board for all other applications.

Review by Administrative Officer and appeal; default procedure.

Unless a different procedure is described in this Part 3, this subsection applies to the review of an application for completeness.

An applicant and the Administrative Officer may mutually agree to an extension of any time limit provided by this section.

Time limits. If the reviewing agency fails to act within the time period prescribed for completeness review, the application shall be deemed complete.

Limitation on further information requests.

Acceptance of application. Applications shall be accepted as follows:

For administrative procedures (Article XIV of this Part 3), by written notice if requested by the applicant; or

For other actions, by placing the application on the agenda of the agency considering the application.

§ 190-126 Notice provisions.

Applicability. This section applies to all applications that require public notice.

[Amended 12-13-2023 by Ord. No. O-23-059]

Date upon which the application will be formally submitted to the agency.

A general description of the proposal which is the subject of the application.

The name and address of the applicant.

The location of the proposal. The street address or, if the street address is unavailable, the legal description by metes and bounds.

The current zoning classification.

The category of permit requested.

Permit equal or fewer dwelling units, floor area or impervious surface than that requested on the original application;

Reduce the impact of the development; or

Reduce the amount of land involved from that indicated in the notices of the hearing.

Table 126-1 Notice [Amended 8-10-2010 by Ord. No. O-10-25; 12-13-2023 by Ord. No. O-23-059]
(A)	(B)	(C)	(D)	(E)
Action	Publication	Posting	Mail	Signage
Regulatory Amendments
Official Map amendment (RSA 674:11)	10 days	10 days, at least 2 public places	N/A	N/A
Zoning Ordinance amendments (RSA 675:7)	N/A	10 days, at least 2 public places	10 days	N/A
Rezoning (RSA 675:2, 674:20)	N/A	10 days, at least 2 public places	10 days	10 days
Planning Board Applications
Site plan (RSA 674:1.VI, 674:43)	N/A	10 days, at least 2 public places	10 days	10 days
Subdivision plan (RSA 674:1.VI, 674:35)	N/A	10 days, at least 2 public places	10 days	10 days
Conditional use permit (RSA 674:21.II)	N/A	10 days, at least 2 public places	10 days	10 days
Plan revocation (RSA 676:4-a)	N/A	10 days, at least 2 public places	10 days	N/A
Communications towers, regional notification (RSA 12-K:7)	7-21 days	N/A	7-21 days	N/A
Developments of regional impact (RSA 36:57)	N/A	N/A	14 days	N/A
Design review (RSA 674:4.I(b))	N/A	10 days, at least 2 public places	10 days	10 days
Zoning Board Applications
Special exception (RSA 674:33)	5 days	10 days, at least 2 public places	10 days	10 days
Zoning variances or appeals (RSA 674:33)	5 days	10 days, at least 2 public places	10 days	10 days
Equitable waiver (RSA 674:33-a)	5 days	10 days, at least 2 public places	10 days	10 days
Appeals to the Zoning Board of Adjustment (RSA 674:13, 674:15, 676:5)	5 days	10 days, at least 2 public places	10 days	10 days
Historic District Commission Applications
Historic District Commission	N/A	10 days, at least 2 public places	14 days	10 days

Rules of Interpretation for Table 126-1:
In Table 126-1, the type of development order or permit is set forth in Column (A), and the types of notice are prescribed in Columns (B) through (E). Nothing in this section prohibits the City from posting additional notice for such actions, such as posting a sign or a notice on the City's Internet Web site. Unless otherwise provided, the time periods referenced above mean the number of days (or other time period) preceding a public hearing on the matter. Notice shall conform to RSA 675:7 unless otherwise provided.
Column (B): "Publication" means publication of notice of such hearing in a newspaper of general circulation in the City.
Column (C): "Posting" means posting a notice at the City hall, or in whatever place other notices required by law in connection with municipal affairs are posted or customarily displayed.
Column (D): "Mail" means notice to abutters, the applicant, holders of conservation, preservation, or agricultural preservation restrictions, and every engineer, architect, land surveyor, or soil scientist whose professional seal appears on any plan submitted to the Board by certified mail of the date upon which the application will be formally submitted to the Board (RSA 676:4(d)). The number of days refers to the number of days prior to submission in the case of plans [RSA 676:4(d)], and before the date fixed for the hearing of the appeal (RSA 676:7). This definition does not apply to: (1) communications towers, which is governed by RSA 12-K:7 (See § 190-38B), or (2) developments of regional impact, which are governed by RSA 36:57. For developments of regional impact, notice of the decision must be provided to the Regional Planning Commission and affected municipalities within 72 hours of a decision (RSA 36:57).
Column (E): "Signage" is a sign erected by the applicant along each principal frontage of the lot, as determined by the Administrative Officer, providing notice of the impending action. Such sign shall be of a design, size and color approved by the Administrative Officer in order to maximize visibility of the sign and to call attention to its purpose. At a minimum, the sign shall include the title, a brief description of the requested action, the time, date, and place of public hearing or hearings on such actions, and instructions on contacting the Administrative Officer for further information on the action. Any sign required by this section shall be erected within 48 hours of the notification of the applicant of the requirement for posting, and at least 10 days prior to the hearing on such matter, and shall be kept in good repair (as determined by the Administrative Officer) by the applicant until the date and time of the last hearing notified by the sign. The lack of proper signage shall not be deemed to be insufficient notice of hearing unless there is a determination by the Administrative Officer that the applicant has not made a good faith effort to keep the required signs posted and in good repair.

§ 190-127 Revocation of permit or approval.

See RSA 676: 4-a.

§ 190-128 Land use permit.

Editor's Note: See Ch. 105, Building Construction.

Decision. The Administrative Officer shall approve, approve with conditions, or deny the application within 30 days. An appeal may be filed with the Zoning Board of Adjustment pursuant to § 190-136.

Amendments. An amendment to a land use permit shall be processed in the same manner as a new application.

Scope of approval. Authorization for a permit shall be null and void one year from date of approval of a land use permit if not used or extended.

Recording procedures. The applicant shall maintain custody of the permit. A copy of the application may be retained in the office of the Administrative Officer.

§ 190-129 Building permit.

See Chapter 105, Building Construction, of the Code of the City of Nashua.

§ 190-130 Certificate of use and occupancy.

New development.

Change of use.

Applicability. A certificate of occupancy is required for the use or occupancy of vacant land, or for a change in the use of land, or for a change in the use of an existing building.

Initiation. The certificate of occupancy shall be applied for and issued before any such land shall be occupied or used, or such land or building changed in use.

§ 190-131 Minor site plan amendments.

Applicability. No changes may be made to any approved site plan or preexisting as-built plan prior to the Site Plan Ordinance[1] adoption except upon application as follows:

The Planning Director may require a revised site plan or as-built plan delineating all approved changes.

[Added 5-9-2023 by Ord. No. O-23-047]

Editor's Note: See Art. XVII of this chapter.

Appeals. The applicant may appeal the Planning Director's decision to the Planning Board.

§ 190-132 Zoning amendments.

Consistency. The Planning Board and Board of Aldermen shall consider whether the proposed zoning amendment is consistent with the Master Plan.

Statutory criteria. After adoption of the zoning amendments, the zoning ordinances shall be designed pursuant to RSA 674:17.

§ 190-133 Conditional use permits.

Notice. See § 190-126.

The building, structure or use is specifically authorized by the Use Matrix, § 190-15, Table 15-1, as a conditional use;

The building, structure or use will not materially endanger the public health or safety;

The building, structure or use will not substantially devalue abutting property;

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;

The building, structure or use will not have a substantial adverse impact on highway or pedestrian safety;

The building, structure or use will not have a substantial adverse impact on the natural and environmental resources of the City; and

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.

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]

Amendments. An amendment to a conditional use permit may be approved in the same manner as an application for a new conditional use permit.

Recording procedures. All conditional use permits shall be filed with the Administrative Officer.

§ 190-134 Special exceptions.

Initiation. An application for a special exception shall be filed with the Administrative Officer.

Notice. See § 190-126.

Decision.

The Zoning Board of Adjustment shall render a decision approving, approving with conditions or denying the special exception after conducting a public hearing.

Approval criteria.

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;

The requested use will not create undue traffic congestion or unduly impair pedestrian safety;

Any special regulations for the use set forth in this article are fulfilled; and

Amendments. An amendment to a special exception may be approved in the same manner as an application for a new special exception.

[Amended 2-10-2015 by Ord. No. O-14-037]

Recording procedures. All special exceptions shall be filed with the Administrative Officer.

§ 190-135 Concurrent zoning amendment and site plan approval.

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:
•	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).
•	Consider a streamlined and creative review and approval process for industrial uses.

Applicability. This procedure may be applied to any of the following:

Any rezoning that meets the criteria for inclusionary zoning (§ 190-48); or

Any other situation in which this chapter expressly authorizes a concurrent rezoning and site plan approval pursuant to this section. [Examples: Flexible Use District]

Completeness review. See § 190-125.

Decision.

Approval criteria, amendments, scope of approval and recording procedures. For procedures applicable to the rezoning, see § 190-146 for procedures applicable to the site plan.

§ 190-136 Appeals from administrative decision. [1]

Applicability. This section applies to any appeal of a decision of the Administrative Officer filed pursuant to RSA 676:5.

Notice. See § 190-126.

Decision.

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.

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.

Editor's Note: The purpose paragraph of this section was deleted 2-26-2008 by Ord. No. O-08-07.

§ 190-137 Variances from zoning. [1]

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.

Completeness review. See § 190-125.

Notice. See § 190-126.

Approval criteria.

Pursuant to RSA 674:33, the Zoning Board of Adjustment may authorize a variance from the terms of Part 2 if:

The variance will not be contrary to the public interest;

Special conditions exist such that literal enforcement of the ordinance results in unnecessary hardship;

The variance is consistent with the spirit of the ordinance;

Substantial justice is done;

The variance does not diminish the value of surrounding properties.

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).

Any variance granted under this paragraph shall be in harmony with the general purpose and intent of the Zoning Ordinance.

[Amended 2-13-2007 by Ord. No. 0-06-71; 2-10-2015 by Ord. No. O-14-037]

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.

Editor's Note: The purpose paragraph of this section was deleted 2-26-2008 by Ord. No. O-08-07.

§ 190-138 General requirements.

Purpose: This section establishes general regulations applicable to all subdivisions, administrative provisions, and procedures for classifying plan applications as major or minor.

Initiation.

The applicant shall file the application with the Board or its agent at least 15 days prior to the meeting at which the application will be accepted.

The applicant may, but is not required, file a preapplication conceptual plan pursuant to § 190-139 prior to filing a design review or a conditional plan.

Completeness review and acceptance of application.

Decision.

Upon determination by the Board that a submitted application is complete according to Article XLIII, the Board shall begin formal consideration.

The Planning Board shall act to approve, conditionally approve as provided in § 190-141, or disapprove the plan within 65 days, subject to extension or waiver as provided in Subsection D(3).

In case of disapproval of any application submitted to the Planning Board, the ground for such disapproval shall be adequately stated upon the records of the Planning Board.

Approval criteria. In reviewing the subdivision plan, the Board shall at a minimum make the following determinations:

That the subdivision plan is consistent with the goals, objectives and strategies adopted as part of the City's Master Plan.

The subdivision complies with all applicable standards of Part 2 and Parts 4 through 8 of this chapter.

That the unique aesthetic, architectural and visual character of nearby buildings or cluster of buildings is maintained, and that the subdivision plan is in harmony with such character.

That the proposed subdivision shall not generate excessive traffic or demands on parking.

That adequate municipal services exist to support the proposed use.

That the subdivision is compatible with the existing character of the neighborhood, and to ensure that it preserves natural character features of the area or neighborhood.

Public hearing.

Public hearings are not required when the Board is considering or acting upon:

Scope of approval.

The Planning Board Chair, Vice Chair or Secretary shall sign the plan.

The applicant shall deliver a full covenant and warranty deed to all dedicated lands and improvements in proper form for recording.

Recording procedures. See RSA 674:37.

§ 190-139 Preliminary conceptual consultation.

Preliminary conceptual consultation may occur without giving formal public notice as required under § 190-138E, but such discussions may occur only at formal meetings of the Board.

§ 190-140 Preapplication design review.

The design review phase may proceed only after proper notification, as set forth in § 190-138E.

Statements made by Board members shall not be the basis for disqualifying said members or invalidating any action eventually taken on the application.

A rough sketch of the site should be provided, showing:

Location of lot lines;

Lot measurements; and

The streets surrounding the site.

§ 190-141 Conditional approval.

Applicability. The Board may grant conditional approval of an application, but the plan will not be signed or recorded until all of the conditions have been met.

Decision.

Conditional approval shall be rendered in accordance with § 190-138.

Per RSA 676:4 I(i), a conditional plan shall be certified to the Planning Board by the Administrative Officer where:

Conditions which are in themselves administrative and which involve no discretionary judgment on the part of the Board; or

Conditions with regard to the applicant's possession of permits and approvals granted by other Boards or agencies or approvals granted by other Boards or agencies.

§ 190-142 Construction plans.

Purpose: The purpose of this section is to provide uniform standards and procedures for the preparation and inspection of subdivision improvements.

Applicability.

Before the Administrative Officer approves the land use permit, the applicant shall comply with either Subsection A(2)(a) or (b) below:

No certificate of use and occupancy shall be issued until:

The applicant completes all required street improvements except curbing, sidewalk paving, final wearing coat of asphalt on streets, and stone bounds; and

Telephone service is available to the dwelling. A certificate of use and occupancy may be issued if a prospective purchaser of the dwelling waives the requirement for telephone service in writing.

Completeness review. Construction plans shall include the information required by Article XLIII to this chapter.

Notice. No notice is required for the approval of construction plans.

Standards.

All grading, excavations, open cutting and similar land surface disturbances to be mulched, seeded, sodded or otherwise protected to ensure compliance with Article XXVI of this chapter.

The location of all street rights-of-way, alignments, widths and vertical elevations.

All control points and monumentation.

Acceptance of improvements.

§ 190-143 Financial guarantees.

[Amended 11-23-2010 by Ord. No. O-10-35]

Acceptable financial guarantee. The following types of financial guarantees are acceptable to assure the completion of the required improvements.

A nonlapsing letter of credit drawn on a bank authorized to do business in New Hampshire payable to the City and deposited with it.

A nonlapsing surety bond issued by a surety company authorized to do business in New Hampshire, to be filed with the City.

Cash or a certified check to be deposited with the City under an escrow agreement.

§ 190-144 Revocation of recorded approval.

A plan may be revoked as provided in RSA 676:4-a.

§ 190-145 Approved subdivision exemption; active and substantial development.

Approved subdivisions shall be protected from future changes in regulations and ordinances in accordance with NH RSA § 674:39 as summarized by the following:

The development remains in full compliance with the public health regulations and ordinances of the City of Nashua; and

At the time of approval (certification of the plans by the Planning Board), the subdivision conforms to the subdivision regulations, and zoning ordinances then in effect at the site of such plan.

Active and substantial development.

For purposes of these regulations, "active and substantial development" shall be defined as:

All erosion control measures (as specified on the approved plans) must be in place and maintained on the site; and

Items in Subsection B(1)(a), (b) and (c) shall be reviewed and approved by the Department of Public Works or designated agent.

§ 190-146 Site plan procedures generally.

Purpose: This section establishes general regulations applicable to all site plans and associated administrative provisions.

Applicability.

Detached single-family dwelling units, duplex and triplex developments on individual lots of record are exempt from this section.

Any substantial deviation from the approved site plan, unless approved in advance and in writing by the Administrative Officer, is a violation of this chapter.

No certificate of compliance shall be issued if the development activities do not conform to the approved site plan.

Initiation. The site plan shall be filed with the Administrative Officer and shall include the information required by Article XLIII.

Decision.

The Planning Board shall conduct a public hearing before acting on a site plan.

The Administrative Officer will sign and date the site plan to indicate approval. Approval shall become effective immediately.

The site plan shall be consistent with the goals, objectives and strategies adopted as part of the City's Master Plan.

The site plan shall comply with all applicable requirements of Parts 2 and 4 through 8 of this chapter.

Unique aesthetic, architectural and visual character of nearby buildings or cluster of buildings shall be maintained, and that the site plan shall be in harmony with such character.

The proposed use shall be able coexist with the surrounding uses, and the proposed use shall not have significant impact on the surrounding uses.

The proposed use shall not have significant health and safety impacts on surrounding properties or on the general population of the City.

[Amended 10-26-2010 by Ord. No. O-10-33]

Adequate municipal services exist to support the proposed use.

The site plan attempts to balance with the allowed use the preservation of sensitive site features as described in § 190-174B(1).

(11)

The site plan provides adequate means of handling on-site vehicular ingress and egress movements in relation to traffic movements along the abutting streets.

(12)

(13)

The site plan provides adequate means of handling parking and loading, and number of off-street parking and loading spaces;

(14)

(15)

The site plan provides adequate protection from encroachment on adjoining residential land uses.

(16)

The site plan provides adequate consideration for handling pedestrian circulation, lighting and location of signs.

(17)

Landscaping shall conform to the requirements of Article XXVII.

Scope of approval.

The owner of a use or property subject to the site plan will be notified if site plan approval must be suspended. Suspension is caused by:

Violation of any applicable provision of this section; or

Failure to comply with any applicable required conditions.

A change in ownership of the property or structures subject to the site plan does not affect its validity.

The applicant shall not alter, expand, intensify, extend or increase any use or structure approved pursuant to the site plan unless the site plan is amended pursuant to Subsection G below.

Approval of a site plan is deemed to constitute approval of any minor plan amendment authorized by § 190-131, unless otherwise expressly provided in the conditions to the site plan approval.

Recording procedures. A copy of an approved site plan shall be maintained on file with the Administrative Officer.

§ 190-147 Performance guarantees.

In lieu of the completion of street work and utility installations prior to the final approval of a plan, the applicant may provide performance guarantees as set forth in § 190-143.

§ 190-148 Waiver of site plan standards.

Purpose: This section establishes the rules of procedure for the Planning Board for waiver of site plan standards as set forth in Parts 3 through 6, as authorized by RSA 674:44.III.(e).

Applicability. Pursuant to RSA 674:44 III(e), the Planning Board may waive of any portion of the site plan regulations (Parts 3 through 6).

Decision. The Planning Board shall approve, deny, or approve with conditions, a waiver at the same time as the decision relating to the related application.

Approval criteria. The Planning Board shall not approve a waiver unless it finds, based on substantial competent evidence presented at the public hearing, that:

Strict conformity would pose an unnecessary hardship to the applicant; and

The waiver would not be contrary to the spirit and intent of the regulations.

Completeness review, notice, amendments, scope of approval, and recording procedures. See procedures applicable to site plan approval.

§ 190-149 Approved site plan exemption; active and substantial development.

Approved site plans shall be protected from future changes in regulations and ordinances in accordance with NH RSA 674:39 as summarized by the following:

Active and substantial development or building has begun on the site by the owner or the owner's successor in interest in accordance with the approved plans within 12 months after the date of approval, or in accordance with the terms of the approval, and, if a bond or other security to cover the costs of roads, drains, or sewers is required in connection with such approval, such bond or other security is posted with the City at the time of commencement of such development;

The development remains in full compliance with the public health regulations and ordinances of the City of Nashua; and

At the time of approval, the site plan conforms to the site plan regulations, and zoning ordinances then in effect at the site of such plan.

Active and substantial development.

For purposes of these regulations, "active and substantial development" shall be defined as:

All erosion control measures (as specified on the approved plans) must be in place and maintained on the site; and

Items in Subsection B(1)(a), (b) and (c) shall be reviewed and approved by the Department of Public Works or designated agent.

§ 190-150 Wetlands application.

The Conservation Commission reviews and submits a recommendation on wetlands applications before final action is taken by the Zoning Board of Adjustment. See Article XI.

§ 190-151 Certificate of approval from Historic District Commission.

See § 190-22.

§ 190-152 Appeals from zoning ordinances.

See § 190-136.

§ 190-153 Variances from zoning ordinances.

See § 190-137.

§ 190-154 Planning Board waivers.

See § 190-148.

§ 190-155 Generally.

§ 190-156 Zoning violations.

See RSA 676: 11-676:13 and 676:15-676:19.

§ 190-157 Subdivision and site plan violations.

In addition to the authority cited in § 190-155, see RSA 676: 16 and 676:18.

Nashua City Zoning Code

PART 3

Procedures

Purpose: This section establishes procedures and time limits for challenging decisions.

§ 190-125 Completeness review and acceptance of applications.

Applicability. These procedures shall be used to review any application for completeness unless a different procedure is established elsewhere in this chapter.

Application materials.

Review procedures.

Jurisdiction. Unless the provisions pertaining to a particular application prescribe otherwise:

The Administrative Officer shall review all applications for approval of a development order or a permit for completeness.

All decisions of the Administrative Officer or other administrative official pertaining to completeness may be appealed to:

The Zoning Board of Adjustment, in the case of a zoning application (Article XV) of this chapter or zoning compliance review for building permits or certificates of occupancy; or

[2]

The Planning Board for all other applications.

Review by Administrative Officer and appeal; default procedure.

Unless a different procedure is described in this Part 3, this subsection applies to the review of an application for completeness.

An applicant and the Administrative Officer may mutually agree to an extension of any time limit provided by this section.

Time limits. If the reviewing agency fails to act within the time period prescribed for completeness review, the application shall be deemed complete.

Limitation on further information requests.

Acceptance of application. Applications shall be accepted as follows:

For administrative procedures (Article XIV of this Part 3), by written notice if requested by the applicant; or

For other actions, by placing the application on the agenda of the agency considering the application.

§ 190-126 Notice provisions.

Applicability. This section applies to all applications that require public notice.

[Amended 12-13-2023 by Ord. No. O-23-059]

Date upon which the application will be formally submitted to the agency.

A general description of the proposal which is the subject of the application.

The name and address of the applicant.

The location of the proposal. The street address or, if the street address is unavailable, the legal description by metes and bounds.

The current zoning classification.

The category of permit requested.

Permit equal or fewer dwelling units, floor area or impervious surface than that requested on the original application;

Reduce the impact of the development; or

Reduce the amount of land involved from that indicated in the notices of the hearing.

Table 126-1 Notice [Amended 8-10-2010 by Ord. No. O-10-25; 12-13-2023 by Ord. No. O-23-059]
(A)	(B)	(C)	(D)	(E)
Action	Publication	Posting	Mail	Signage
Regulatory Amendments
Official Map amendment (RSA 674:11)	10 days	10 days, at least 2 public places	N/A	N/A
Zoning Ordinance amendments (RSA 675:7)	N/A	10 days, at least 2 public places	10 days	N/A
Rezoning (RSA 675:2, 674:20)	N/A	10 days, at least 2 public places	10 days	10 days
Planning Board Applications
Site plan (RSA 674:1.VI, 674:43)	N/A	10 days, at least 2 public places	10 days	10 days
Subdivision plan (RSA 674:1.VI, 674:35)	N/A	10 days, at least 2 public places	10 days	10 days
Conditional use permit (RSA 674:21.II)	N/A	10 days, at least 2 public places	10 days	10 days
Plan revocation (RSA 676:4-a)	N/A	10 days, at least 2 public places	10 days	N/A
Communications towers, regional notification (RSA 12-K:7)	7-21 days	N/A	7-21 days	N/A
Developments of regional impact (RSA 36:57)	N/A	N/A	14 days	N/A
Design review (RSA 674:4.I(b))	N/A	10 days, at least 2 public places	10 days	10 days
Zoning Board Applications
Special exception (RSA 674:33)	5 days	10 days, at least 2 public places	10 days	10 days
Zoning variances or appeals (RSA 674:33)	5 days	10 days, at least 2 public places	10 days	10 days
Equitable waiver (RSA 674:33-a)	5 days	10 days, at least 2 public places	10 days	10 days
Appeals to the Zoning Board of Adjustment (RSA 674:13, 674:15, 676:5)	5 days	10 days, at least 2 public places	10 days	10 days
Historic District Commission Applications
Historic District Commission	N/A	10 days, at least 2 public places	14 days	10 days

Rules of Interpretation for Table 126-1:
In Table 126-1, the type of development order or permit is set forth in Column (A), and the types of notice are prescribed in Columns (B) through (E). Nothing in this section prohibits the City from posting additional notice for such actions, such as posting a sign or a notice on the City's Internet Web site. Unless otherwise provided, the time periods referenced above mean the number of days (or other time period) preceding a public hearing on the matter. Notice shall conform to RSA 675:7 unless otherwise provided.
Column (B): "Publication" means publication of notice of such hearing in a newspaper of general circulation in the City.
Column (C): "Posting" means posting a notice at the City hall, or in whatever place other notices required by law in connection with municipal affairs are posted or customarily displayed.
Column (D): "Mail" means notice to abutters, the applicant, holders of conservation, preservation, or agricultural preservation restrictions, and every engineer, architect, land surveyor, or soil scientist whose professional seal appears on any plan submitted to the Board by certified mail of the date upon which the application will be formally submitted to the Board (RSA 676:4(d)). The number of days refers to the number of days prior to submission in the case of plans [RSA 676:4(d)], and before the date fixed for the hearing of the appeal (RSA 676:7). This definition does not apply to: (1) communications towers, which is governed by RSA 12-K:7 (See § 190-38B), or (2) developments of regional impact, which are governed by RSA 36:57. For developments of regional impact, notice of the decision must be provided to the Regional Planning Commission and affected municipalities within 72 hours of a decision (RSA 36:57).
Column (E): "Signage" is a sign erected by the applicant along each principal frontage of the lot, as determined by the Administrative Officer, providing notice of the impending action. Such sign shall be of a design, size and color approved by the Administrative Officer in order to maximize visibility of the sign and to call attention to its purpose. At a minimum, the sign shall include the title, a brief description of the requested action, the time, date, and place of public hearing or hearings on such actions, and instructions on contacting the Administrative Officer for further information on the action. Any sign required by this section shall be erected within 48 hours of the notification of the applicant of the requirement for posting, and at least 10 days prior to the hearing on such matter, and shall be kept in good repair (as determined by the Administrative Officer) by the applicant until the date and time of the last hearing notified by the sign. The lack of proper signage shall not be deemed to be insufficient notice of hearing unless there is a determination by the Administrative Officer that the applicant has not made a good faith effort to keep the required signs posted and in good repair.

§ 190-127 Revocation of permit or approval.

See RSA 676: 4-a.

§ 190-128 Land use permit.

Editor's Note: See Ch. 105, Building Construction.

Decision. The Administrative Officer shall approve, approve with conditions, or deny the application within 30 days. An appeal may be filed with the Zoning Board of Adjustment pursuant to § 190-136.

Amendments. An amendment to a land use permit shall be processed in the same manner as a new application.

Scope of approval. Authorization for a permit shall be null and void one year from date of approval of a land use permit if not used or extended.

Recording procedures. The applicant shall maintain custody of the permit. A copy of the application may be retained in the office of the Administrative Officer.

§ 190-129 Building permit.

See Chapter 105, Building Construction, of the Code of the City of Nashua.

§ 190-130 Certificate of use and occupancy.

New development.

Change of use.

Applicability. A certificate of occupancy is required for the use or occupancy of vacant land, or for a change in the use of land, or for a change in the use of an existing building.

Initiation. The certificate of occupancy shall be applied for and issued before any such land shall be occupied or used, or such land or building changed in use.

§ 190-131 Minor site plan amendments.

Applicability. No changes may be made to any approved site plan or preexisting as-built plan prior to the Site Plan Ordinance[1] adoption except upon application as follows:

The Planning Director may require a revised site plan or as-built plan delineating all approved changes.

[Added 5-9-2023 by Ord. No. O-23-047]

Editor's Note: See Art. XVII of this chapter.

Appeals. The applicant may appeal the Planning Director's decision to the Planning Board.

§ 190-132 Zoning amendments.

Consistency. The Planning Board and Board of Aldermen shall consider whether the proposed zoning amendment is consistent with the Master Plan.

Statutory criteria. After adoption of the zoning amendments, the zoning ordinances shall be designed pursuant to RSA 674:17.

§ 190-133 Conditional use permits.

Notice. See § 190-126.

The building, structure or use is specifically authorized by the Use Matrix, § 190-15, Table 15-1, as a conditional use;

The building, structure or use will not materially endanger the public health or safety;

The building, structure or use will not substantially devalue abutting property;

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;

The building, structure or use will not have a substantial adverse impact on highway or pedestrian safety;

The building, structure or use will not have a substantial adverse impact on the natural and environmental resources of the City; and

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.

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]

Amendments. An amendment to a conditional use permit may be approved in the same manner as an application for a new conditional use permit.

Recording procedures. All conditional use permits shall be filed with the Administrative Officer.

§ 190-134 Special exceptions.

Initiation. An application for a special exception shall be filed with the Administrative Officer.

Notice. See § 190-126.

Decision.

The Zoning Board of Adjustment shall render a decision approving, approving with conditions or denying the special exception after conducting a public hearing.

Approval criteria.

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;

The requested use will not create undue traffic congestion or unduly impair pedestrian safety;

Any special regulations for the use set forth in this article are fulfilled; and

Amendments. An amendment to a special exception may be approved in the same manner as an application for a new special exception.

[Amended 2-10-2015 by Ord. No. O-14-037]

Recording procedures. All special exceptions shall be filed with the Administrative Officer.

§ 190-135 Concurrent zoning amendment and site plan approval.

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:
•	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).
•	Consider a streamlined and creative review and approval process for industrial uses.

Applicability. This procedure may be applied to any of the following:

Any rezoning that meets the criteria for inclusionary zoning (§ 190-48); or

Any other situation in which this chapter expressly authorizes a concurrent rezoning and site plan approval pursuant to this section. [Examples: Flexible Use District]

Completeness review. See § 190-125.

Decision.

Approval criteria, amendments, scope of approval and recording procedures. For procedures applicable to the rezoning, see § 190-146 for procedures applicable to the site plan.

§ 190-136 Appeals from administrative decision. [1]

Applicability. This section applies to any appeal of a decision of the Administrative Officer filed pursuant to RSA 676:5.

Notice. See § 190-126.

Decision.

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.

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.

Editor's Note: The purpose paragraph of this section was deleted 2-26-2008 by Ord. No. O-08-07.

§ 190-137 Variances from zoning. [1]

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.

Completeness review. See § 190-125.

Notice. See § 190-126.

Approval criteria.

Pursuant to RSA 674:33, the Zoning Board of Adjustment may authorize a variance from the terms of Part 2 if:

The variance will not be contrary to the public interest;

Special conditions exist such that literal enforcement of the ordinance results in unnecessary hardship;

The variance is consistent with the spirit of the ordinance;

Substantial justice is done;

The variance does not diminish the value of surrounding properties.

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).

Any variance granted under this paragraph shall be in harmony with the general purpose and intent of the Zoning Ordinance.

[Amended 2-13-2007 by Ord. No. 0-06-71; 2-10-2015 by Ord. No. O-14-037]

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.

Editor's Note: The purpose paragraph of this section was deleted 2-26-2008 by Ord. No. O-08-07.

§ 190-138 General requirements.

Purpose: This section establishes general regulations applicable to all subdivisions, administrative provisions, and procedures for classifying plan applications as major or minor.

Initiation.

The applicant shall file the application with the Board or its agent at least 15 days prior to the meeting at which the application will be accepted.

The applicant may, but is not required, file a preapplication conceptual plan pursuant to § 190-139 prior to filing a design review or a conditional plan.

Completeness review and acceptance of application.

Decision.

Upon determination by the Board that a submitted application is complete according to Article XLIII, the Board shall begin formal consideration.

The Planning Board shall act to approve, conditionally approve as provided in § 190-141, or disapprove the plan within 65 days, subject to extension or waiver as provided in Subsection D(3).

In case of disapproval of any application submitted to the Planning Board, the ground for such disapproval shall be adequately stated upon the records of the Planning Board.

Approval criteria. In reviewing the subdivision plan, the Board shall at a minimum make the following determinations:

That the subdivision plan is consistent with the goals, objectives and strategies adopted as part of the City's Master Plan.

The subdivision complies with all applicable standards of Part 2 and Parts 4 through 8 of this chapter.

That the unique aesthetic, architectural and visual character of nearby buildings or cluster of buildings is maintained, and that the subdivision plan is in harmony with such character.

That the proposed subdivision shall not generate excessive traffic or demands on parking.

That adequate municipal services exist to support the proposed use.

That the subdivision is compatible with the existing character of the neighborhood, and to ensure that it preserves natural character features of the area or neighborhood.

Public hearing.

Public hearings are not required when the Board is considering or acting upon:

Scope of approval.

The Planning Board Chair, Vice Chair or Secretary shall sign the plan.

The applicant shall deliver a full covenant and warranty deed to all dedicated lands and improvements in proper form for recording.

Recording procedures. See RSA 674:37.

§ 190-139 Preliminary conceptual consultation.

Preliminary conceptual consultation may occur without giving formal public notice as required under § 190-138E, but such discussions may occur only at formal meetings of the Board.

§ 190-140 Preapplication design review.

The design review phase may proceed only after proper notification, as set forth in § 190-138E.

Statements made by Board members shall not be the basis for disqualifying said members or invalidating any action eventually taken on the application.

A rough sketch of the site should be provided, showing:

Location of lot lines;

Lot measurements; and

The streets surrounding the site.

§ 190-141 Conditional approval.

Applicability. The Board may grant conditional approval of an application, but the plan will not be signed or recorded until all of the conditions have been met.

Decision.

Conditional approval shall be rendered in accordance with § 190-138.

Per RSA 676:4 I(i), a conditional plan shall be certified to the Planning Board by the Administrative Officer where:

Conditions which are in themselves administrative and which involve no discretionary judgment on the part of the Board; or

Conditions with regard to the applicant's possession of permits and approvals granted by other Boards or agencies or approvals granted by other Boards or agencies.

§ 190-142 Construction plans.

Purpose: The purpose of this section is to provide uniform standards and procedures for the preparation and inspection of subdivision improvements.

Applicability.

Before the Administrative Officer approves the land use permit, the applicant shall comply with either Subsection A(2)(a) or (b) below:

No certificate of use and occupancy shall be issued until:

The applicant completes all required street improvements except curbing, sidewalk paving, final wearing coat of asphalt on streets, and stone bounds; and

Telephone service is available to the dwelling. A certificate of use and occupancy may be issued if a prospective purchaser of the dwelling waives the requirement for telephone service in writing.

Completeness review. Construction plans shall include the information required by Article XLIII to this chapter.

Notice. No notice is required for the approval of construction plans.

Standards.

All grading, excavations, open cutting and similar land surface disturbances to be mulched, seeded, sodded or otherwise protected to ensure compliance with Article XXVI of this chapter.

The location of all street rights-of-way, alignments, widths and vertical elevations.

All control points and monumentation.

Acceptance of improvements.

§ 190-143 Financial guarantees.

[Amended 11-23-2010 by Ord. No. O-10-35]

Acceptable financial guarantee. The following types of financial guarantees are acceptable to assure the completion of the required improvements.

A nonlapsing letter of credit drawn on a bank authorized to do business in New Hampshire payable to the City and deposited with it.

A nonlapsing surety bond issued by a surety company authorized to do business in New Hampshire, to be filed with the City.

Cash or a certified check to be deposited with the City under an escrow agreement.

§ 190-144 Revocation of recorded approval.

A plan may be revoked as provided in RSA 676:4-a.

§ 190-145 Approved subdivision exemption; active and substantial development.

Approved subdivisions shall be protected from future changes in regulations and ordinances in accordance with NH RSA § 674:39 as summarized by the following:

The development remains in full compliance with the public health regulations and ordinances of the City of Nashua; and

At the time of approval (certification of the plans by the Planning Board), the subdivision conforms to the subdivision regulations, and zoning ordinances then in effect at the site of such plan.

Active and substantial development.

For purposes of these regulations, "active and substantial development" shall be defined as:

All erosion control measures (as specified on the approved plans) must be in place and maintained on the site; and

Items in Subsection B(1)(a), (b) and (c) shall be reviewed and approved by the Department of Public Works or designated agent.

§ 190-146 Site plan procedures generally.

Purpose: This section establishes general regulations applicable to all site plans and associated administrative provisions.

Applicability.

Detached single-family dwelling units, duplex and triplex developments on individual lots of record are exempt from this section.

Any substantial deviation from the approved site plan, unless approved in advance and in writing by the Administrative Officer, is a violation of this chapter.

No certificate of compliance shall be issued if the development activities do not conform to the approved site plan.

Initiation. The site plan shall be filed with the Administrative Officer and shall include the information required by Article XLIII.

Decision.

The Planning Board shall conduct a public hearing before acting on a site plan.

The Administrative Officer will sign and date the site plan to indicate approval. Approval shall become effective immediately.

The site plan shall be consistent with the goals, objectives and strategies adopted as part of the City's Master Plan.

The site plan shall comply with all applicable requirements of Parts 2 and 4 through 8 of this chapter.

Unique aesthetic, architectural and visual character of nearby buildings or cluster of buildings shall be maintained, and that the site plan shall be in harmony with such character.

The proposed use shall be able coexist with the surrounding uses, and the proposed use shall not have significant impact on the surrounding uses.

The proposed use shall not have significant health and safety impacts on surrounding properties or on the general population of the City.

[Amended 10-26-2010 by Ord. No. O-10-33]

Adequate municipal services exist to support the proposed use.

The site plan attempts to balance with the allowed use the preservation of sensitive site features as described in § 190-174B(1).

(11)

The site plan provides adequate means of handling on-site vehicular ingress and egress movements in relation to traffic movements along the abutting streets.

(12)

(13)

The site plan provides adequate means of handling parking and loading, and number of off-street parking and loading spaces;

(14)

(15)

The site plan provides adequate protection from encroachment on adjoining residential land uses.

(16)

The site plan provides adequate consideration for handling pedestrian circulation, lighting and location of signs.

(17)

Landscaping shall conform to the requirements of Article XXVII.

Scope of approval.

The owner of a use or property subject to the site plan will be notified if site plan approval must be suspended. Suspension is caused by:

Violation of any applicable provision of this section; or

Failure to comply with any applicable required conditions.

A change in ownership of the property or structures subject to the site plan does not affect its validity.

The applicant shall not alter, expand, intensify, extend or increase any use or structure approved pursuant to the site plan unless the site plan is amended pursuant to Subsection G below.

Approval of a site plan is deemed to constitute approval of any minor plan amendment authorized by § 190-131, unless otherwise expressly provided in the conditions to the site plan approval.

Recording procedures. A copy of an approved site plan shall be maintained on file with the Administrative Officer.

§ 190-147 Performance guarantees.

In lieu of the completion of street work and utility installations prior to the final approval of a plan, the applicant may provide performance guarantees as set forth in § 190-143.

§ 190-148 Waiver of site plan standards.

Purpose: This section establishes the rules of procedure for the Planning Board for waiver of site plan standards as set forth in Parts 3 through 6, as authorized by RSA 674:44.III.(e).

Applicability. Pursuant to RSA 674:44 III(e), the Planning Board may waive of any portion of the site plan regulations (Parts 3 through 6).

Decision. The Planning Board shall approve, deny, or approve with conditions, a waiver at the same time as the decision relating to the related application.

Approval criteria. The Planning Board shall not approve a waiver unless it finds, based on substantial competent evidence presented at the public hearing, that:

Strict conformity would pose an unnecessary hardship to the applicant; and

The waiver would not be contrary to the spirit and intent of the regulations.

Completeness review, notice, amendments, scope of approval, and recording procedures. See procedures applicable to site plan approval.

§ 190-149 Approved site plan exemption; active and substantial development.

Approved site plans shall be protected from future changes in regulations and ordinances in accordance with NH RSA 674:39 as summarized by the following:

Active and substantial development or building has begun on the site by the owner or the owner's successor in interest in accordance with the approved plans within 12 months after the date of approval, or in accordance with the terms of the approval, and, if a bond or other security to cover the costs of roads, drains, or sewers is required in connection with such approval, such bond or other security is posted with the City at the time of commencement of such development;

The development remains in full compliance with the public health regulations and ordinances of the City of Nashua; and

At the time of approval, the site plan conforms to the site plan regulations, and zoning ordinances then in effect at the site of such plan.

Active and substantial development.

For purposes of these regulations, "active and substantial development" shall be defined as:

All erosion control measures (as specified on the approved plans) must be in place and maintained on the site; and

Items in Subsection B(1)(a), (b) and (c) shall be reviewed and approved by the Department of Public Works or designated agent.