(a)

Authority and purpose. Pursuant to RSA 674:16-21, the town adopts an aquifer protection district and accompanying regulations in order to protect, preserve and maintain existing and potential groundwater supplies and related groundwater recharge areas within the town. The objectives of the aquifer protection district are:

(1)

To protect the public health and general welfare of the citizens of Newmarket.

(2)

To prevent development and land use practices that would increase risk of contamination or reduce the recharge of identified aquifers.

(3)

To provide for future growth and development of the town, in accordance with the Master Plan, by insuring the future availability of public and private water supplies.

(4)

To encourage uses that can appropriately and safely be located in the aquifer recharge areas.

(5)

To incorporate by reference and encourage implementation of the recommendations and findings of the recently completed report by Dufresne-Henry, entitled "Delineation of Wellhead Protection Area: Newmarket Plains Aquifer, December - 1999" in order to protect the existing and future viability of the town's primary water supply.

(6)

To incorporate by reference newly updated information and Wellhead Protection Area (WHPA) Delineation Map, as contained in a letter report dated October 3, 2006, to the Town of Newmarket, entitled "Delineation of Newmarket Plans Aquifer Wellhead Protection Area" prepared by Comprehensive Environmental Incorporated (CEI).

(b)

Definitions. The following words, terms and phrases, when used in this section, shall have the meanings ascribed to them in this subsection, except where the context clearly indicates a different meaning:

Aquifer means a geologic formation, group of formations, or part of a formation that is capable of yielding quantities of groundwater usable for municipal or private water supplies

Groundwater means all the water below the land surface in the zone of saturation or in rock fractures capable of yielding water to a well.

Groundwater recharge means the infiltration of precipitation through surface soil materials into groundwater. Recharge may also occur from surface waters, including lakes, streams and wetlands.

Impervious surface-protective means a surface through which regulated substances cannot pass when spilled. Impervious surfaces-protective include concrete unless unsealed cracks or holes are present. Asphalt; earthen, wooden or gravel surfaces; or other surfaces, which could react with or dissolve when in contact with the substances stored on them are not considered impervious surfaces-protective.

Leachable wastes means waste materials, including but not limited to solid wastes, sewage sludge and agricultural wastes that are capable of releasing contaminants to the surrounding environment, and specifically excluding wastes from functional, approved residential septic systems.

Mining of land means the removal of geologic materials for the purpose of extracting topsoil, sand and gravel, metallic ores or bedrock and excavation as defined in RSA 155-E and Newmarket Excavation Regulations.

Seasonal high water table (SHWT) refers to the upper limit of the ground water in a soil that becomes seasonally saturated with water.

Toxic or hazardous materials or regulated substance means petroleum, petroleum products, and substances listed under 40 CFR 302 7-1-90 edition, excluding propane and other liquefied fuels which exist as gases at normal atmospheric temperature and pressure.

Wellhead protection area is defined as found in RSA 485-C:2(XVIII), as amended.

(c)

District boundaries.

(1)

Location.

a.

The aquifer protection district shall include all land identified as stratified drift aquifer (of any kind) in the vicinity of Newmarket Plains (along NH Route 152, Lee Hook Road, Langs Lane, and Ash Swamp Road) on Plate 6 of the report entitled "Geohydrology and Water Quality of Stratified Drift Aquifers in the Exeter, Lamprey, and Oyster River Basins, Southeastern New Hampshire" (USGS, Water Resources Investigations Report 88-4128, 1990 revised).

b.

The wellhead protection area is designated by the map: Wellhead Protection Area - WHPA Delineation MAP (Attachment D), as contained in a letter report dated October 3, 2006 to the Town of Newmarket entitled "Delineation of Newmarket Plans Aquifer Wellhead Protection Area" (Comprehensive Environmental Incorporated (CEI), incorporated herein by reference.

(2)

The aquifer protection district is a zoning overlay district, which imposes additional requirements and restrictions to those of the underlying district. In all cases, the more restrictive requirements shall apply.

(3)

Appeals. When the actual boundary of the aquifer protection district is in dispute by any landowner or abutter actually affected by said boundary, the planning board, at the landowner's/abutter's expense and request, may engage a professional geologist or hydrogeologist to prepare a report addressing the location and extent of the aquifer and recharge area relative to the property in question. This report shall include but not be limited to the following:

a.

A two-foot interval topographic layout prepared by a registered land surveyor of the subdivision and/or area to be developed;

b.

A high intensity soils map of the subdivision and/or area to be developed prepared by a soils scientist qualified in hydrologic studies including a written report of his on-site field inspection and test boring data;

c.

The aquifer protection district boundary shall be overlaid on the plat and the newly proposed boundary location shall be indicated on the same plat by a broken line;

d.

Evidence derived from a pumping test or a sufficient number of test borings, test pits, observation wells and groundwater elevations to clearly demonstrate that the area in question does not meet the definition of aquifer or recharge area; and

e.

Where the area in question is wellhead protection area, evidence shall also comply with guidelines published by the New Hampshire Department of Environmental Services for Phase II delineations of public water systems in order to determine the contribution zone of any portion of a municipal water supply that lies beneath the subject parcel.

Any additional mapping, hydrogeological reports or information which becomes available as a result of recent or on-going scientific investigations of the locations and extent of aquifers performed by the U.S. Geological Survey, New Hampshire state agencies or boards, the Town of Newmarket or agents of any of the above.

(4)

The planning board may, based upon any findings or reports submitted under this section, adjust the boundary or area designation of the aquifer protection district to more correctly define the aquifers and recharge areas on a site-specific, case-by-case basis.

(d)

Use regulations for the aquifer protection district.

(1)

Minimum lot size. The minimum lot size shall be governed by the dimensional controls outlined in the applicable zoning district. In all cases standard lot size shall be at least two acres. The minimum lot size within the wellhead protection area shall be at least three acres. Open space subdivisions are encouraged in the aquifer protection district, provided septic systems are designed to minimize potential contamination to groundwater, to the maximum extent possible. Land areas within the aquifer protection district shall be calculated as providing one unit of density per two acres; land within the wellhead protection area shall provide a density calculation of one unit per three acres.

(2)

Maximum lot coverage. Within the aquifer protection district, for any use that will render impervious more than ten percent or more than 2,500 square feet of any lot, whichever is greater, a stormwater management plan shall be prepared which the planning board, and town engineer, if necessary, determines is consistent with "Stormwater Management and Erosion and Sediment Control Handbook for Urban and Developing Areas in New Hampshire," Rockingham County Conservation District, August 1992 (as amended) and "Best Management Practices for Urban Stormwater Runoff," NH DES, January 1996 (as amended).

(3)

Site drainage. At the discretion of the planning board, the design and the construction of any drainage facility shall be approved by the public works department, and/or designated town engineer. Drainage facilities shall be designed in accordance with best management practices as described in "Stormwater Management and Erosion and Sediment Control Handbook for Urban and Developing Areas in New Hampshire." All stormwater treatment and drainage facilities within the wellhead protection area shall be cleaned/serviced and inspected at least once per year as a minimum, in accordance with design specifications. For all nonresidential uses, the planning board shall be authorized to require monitoring wells to insure water quality standards.

(4)

Use of deicing chemicals. There shall be minimal use of deicing chemicals on all public and private roads and parking lots within the district. The use of these chemicals shall be free of sodium and chloride to the greatest extent possible.

(5)

Prohibited uses. In addition to all other uses not permitted in the underlying district, the following uses shall not be permitted in the aquifer protection district overlay district except where permitted to continue as a nonconforming use. Such activities, however, in the wellhead protection area shall be prohibited from any further expansion as a matter of water quality protection and health and safety:

a.

Disposal, storage, and staging of all solid waste, construction materials, vegetative debris, sludge, biosolids, and stumps, except as part of the process of improving the subject parcel, provided no such waste is buried on the site.

b.

All disposal, discharge, processing or recycling of hazardous materials. Regulated substances shall be handled in accordance with NH Code of Administrative Rules Part Env-Ws 421.

c.

Disposal of non-sanitary liquid or leachable wastes from all residential, commercial or industrial uses. Residential septic systems are exempt from this prohibition, pursuant to the definition of "leachable wastes" under subsection (b) of this section.

d.

Subsurface storage of petroleum and other refined petroleum products. The placement of residential tanks underground for the storage of petroleum and other refined petroleum products shall not be allowed in new construction in the wellhead protection area. Propane fuel or other non-liquid fuel supplies shall be used and may be stored underground.

e.

Outdoor unenclosed or uncovered storage of road salt and other deicing chemicals.

f.

Dumping of snow containing deicing chemicals brought from outside of the aquifer protection district.

g.

Commercial animal feedlots where animals are kept.

h.

Automotive service and repair shops, junk and salvage yards.

i.

Injection wells that dispose of waste in the ground.

j.

Within the wellhead protection area, the establishment of a new excavation site is prohibited unless it is incidental to a permitted use and with the exception of any existing excavation legally permitted under the excavation regulations of the town at the time of adoption of the ordinance from which this chapter is derived. (See subsection (d)(7) of this section.)

k.

The commercial storage of fertilizers, animal manure and compost unless in accordance with the Manual of Best Management Practices for Agriculture in New Hampshire, NH Department of Agriculture, Markets and Food, August 1998, and subsequent revisions, and for an agricultural use already in existence at the time of adoption of the ordinance from which this chapter is derived. Normal residential uses are exempt from this prohibition.

l.

Any groundwater withdrawal well extracting water for nonresidential purposes in excess of 57,000 gallons per day.

(6)

Permitted uses. The following uses are permitted, provided they are conducted in accordance with the purposes and intent of this section:

a.

All uses permitted in the underlying zone, provided that all such uses requiring a septic system are reviewed by the town engineer for compliance with applicable rules, laws, and best management practices.

b.

Maintenance, repair of any existing structure in conformance with the regulations of this section.

c.

The expansion of a nonconforming use as long as it complies with the nonconforming use provisions of this section and section 32-5; provided, however, that such expansion presents no tangible increased risk of contamination or quantity reduction to the groundwater at the site. If such use is determined to be an imminent hazard to public health and safety by the town council or the health officer, it may not expand or be changed unless to a conforming use.

d.

Farming, gardening, nursery, forestry, harvesting, residential composting, grazing and recreational uses provided that fertilizers, pesticides and other management practices are deemed safe by the Rockingham County Conservation District. These uses of land in the aquifer protection district must not cause a tangible increased risk of contamination or decreased quantity to the aquifer as determined by the town and its consultants.

e.

Municipal uses, such as the town garage, schools, and such other uses as the town deems appropriate provided reasonable efforts are made to protect and preserve the quality and quantity of groundwater in the aquifer protection district.

f.

Commercial uses permitted in the underlying zone that are not water-dependent. Water withdrawals shall be permitted for the purposes of on-site irrigation and for providing potable water for on-site employees but not for manufacturing or industrial processes. Wells shall also be permitted for groundwater monitoring and sampling.

1.

Any groundwater withdrawal well extracting water for nonresidential purposes for a total of less than 57,000 gallons per day may be approved only upon a determination that no impact upon the Newmarket water supply will result.

(7)

Nonconforming earth, sand, and gravel excavations.

a.

Sand and gravel excavations that are in existence at the time of the adoption of the ordinance from which this section is derived may continue, provided they are in full compliance with all governing local and state regulations. Upon expiration of previously approved excavation permits, all sand and gravel excavations within the aquifer protection district shall apply for a conditional use permit granted by the planning board in accordance with the procedural process as found in the excavation regulations based on the required submission of the following:

1.

Submission of quarterly reports on depth of excavation, spills, and timetable for excavation and reclamation.

2.

A development agreement requiring incremental reclamation and other conditions for an exception to the minimum distance requirement.

b.

Any sand and gravel excavation within the boundaries of the aquifer protection district that is no longer in operation or is considered to be an abandoned use shall be reclaimed within one calendar year of the adoption of the ordinance from which this section is derived or within one calendar year of the date of abandonment, whichever is later.

c.

Any sand and gravel excavation within the boundaries of the aquifer protection district that is operated by the town for the purpose of providing sand or gravel utilized by the public works department shall be exempt from the requirements for a conditional use permit; however, no excavation activity shall occur below the SHWT.

d.

At no time shall excavations occur below four feet above the SHWT. Compliance with this provision shall be determined by the submission of an annual report showing the SHWT as established by test pits (two per acre of excavation area distributed evenly throughout the excavation area) and witnessed by a licensed New Hampshire Soil Scientist.

e.

All refueling and vehicle maintenance shall be done, to the extent practical, outside of the aquifer protection area; if done within the aquifer protection area, such activity shall be completed on an impervious surface-protective or other facility, to be approved by the town engineer, that mitigates the spread of any unforeseen spill.

(e)

Hydrogeological study.

(1)

Within the aquifer protection district, a hydrogeological study shall be required for developments involving the disturbance of more than 50,000 square feet on the same parcel within a period of five years. No further development will be permitted unless a full study has been completed for the entire development potential of the parent parcel in accordance with the regulations in effect at the time. Hydrogeological studies shall be performed by a professional hydrogeologist. These studies shall be sufficiently detailed to evaluate the development's impacts to groundwater within the parcel to be developed and the surrounding land.

(2)

For any proposed groundwater withdrawal associated with a subdivision containing four or more houses, or as found in subsection (e)(1) of this section, with individual supply wells or a centralized community supply well or for any other groundwater withdrawal in excess of 1,500 gallons per day for the development, a hydrogeological study must be conducted at the expense of the developer, owner, or applicant. The study shall be performed by a professional geologist or equivalently qualified hydrogeologist. The study shall evaluate the effects of the proposed withdrawal on the long-term water levels, groundwater flow direction, the limits of the wellhead protection area for the town's municipal wells and assess the availability of groundwater for a future municipal or smaller community supply well. The study shall evaluate both the short-term and the cumulative effects of this withdrawal with other existing and reasonably expected future withdrawals within the aquifer (i.e., the town's withdrawal in addition to all other current or approved withdrawals). The planning board may refer to the NH DES requirements for Site Selection of Small Production Wells for Community Water Systems, Env-Ws 378, as amended, for guidance on study design.

(f)

Design and performance standards.

(1)

Where portions of a site are partially located outside of the aquifer protection overlay zone, potential pollution sources such as on-site waste disposal systems and impervious surfaces should be located outside and down gradient of the zone to the extent feasible.

(2)

Any change of use for a site shall require site plan review. The planning board shall be authorized to require additional measures to ensure adequate groundwater protection.

(3)

The provisions of this section are minimum requirements; any town board or official who has jurisdiction over any activity or permit within the boundaries of this section may impose additional criteria to achieve the goals and objectives of this section.

(4)

All activities, uses and construction shall be undertaken in such a manner so as to protect the town's aquifers.

(Ord. of 2-14-1996, § 5.01; Ord. No. 2002-04, 3-6-2002; Ord. No. 2007-08, 10-17-2007; Ord. of 06-21-2017)

(a)

Purpose. The waters of Great Bay, the Lamprey and Piscassic Rivers, and other surface waters contribute greatly to the heritage and unique qualities of the Town of Newmarket. It is the town's intent to conserve and maintain the integrity of these water resources, and to ensure that adjacent shoreland uses complement them. This shall serve to prevent degradation of the water resources, protect ecological integrity, reduce pollution, protect wildlife and fisheries habitats and travelways, protect and enhance natural beauty and scenic qualities, and foster tourism. It is accomplished by maintaining and enhancing natural forests and shoreland habitat and buffers. This is consistent with the general purpose of this chapter, the policies of the Newmarket Master Plan, and the State Comprehensive Shoreland Protection Act, as set forth in RSA 483-B.

(b)

Comprehensive Shoreland Protection Act. RSA 483-B is a New Hampshire State law, which applies to the land areas within 250 feet of the reference line of public waters. Public waters, as defined in RSA 483-B:4(XVI), include: Coastal waters, including the Great Bay Estuary and the associated tidal rivers subject to the ebb and flow of the tide; lakes, artificial impoundments and ponds of ten or more acres listed on the New Hampshire Department of Environmental Services Official List of Public Waters; designated rivers under RSA 483:15; and year round flowing waters of fourth order or higher streams listed on the New Hampshire Hydrographic Dataset (NHHD) per RSA 483-B:4(XVI)(c). Measurement is taken from the reference line as defined per RSA 483-B:4(XVII), as amended.

(c)

Overlay district boundary. The shoreland protection overlay district shall include all land within 250 feet of the reference line. The applicable water bodies are designated on the Newmarket Shoreland Protection Overlay District Map, as amended. In Newmarket, these include all tidal waters of Great Bay, the Lamprey River and Lubberland Creek, the non-tidal portion of the Lamprey River, the impoundment above the Macallen Dam, and the Piscassic River.

(d)

General requirements. The following shall apply in the shoreland protection overlay district:

(1)

Within the areas of Newmarket's shoreland which have been exempted from the provisions of the RSA 483-B:12 pursuant to RSA 483-B:12, by the Commissioner of the New Hampshire Department of Environmental Services (NH DES), the following minimum standards as set forth in RSA 483-B:9 shall still apply regarding II(a) salt storage yards, automobile junkyards, solid or hazardous waste facilities; II(d) fertilizer application; V(a)(2)(A) chemicals, and V(a)(2)(D) erosion and siltation.

(2)

Within all other areas of the protected shoreland, the minimum standards as set forth in RSA 483-B:9 in its entirety shall apply regarding salt storage yards, building setbacks, automobile junkyards, water dependent structures, solid or hazardous waste facilities, fertilizer application, maintenance of waterfront and natural woodland buffers, septic systems, erosion and siltation, minimum lots and residential and nonresidential development (minimum lot size and shoreland frontage), impervious surfaces, and common ownership with the following exceptions:

a.

The primary structure setback from the reference line shall be 125 feet.

b.

Accessory structures are permitted; however, they shall be setback at least 20 feet from the reference line and meet the requirements of the Env-Wq 1405 of the New Hampshire Code of Administrative Rules. They shall have no toilet facilities and shall not be used for habitation.

(e)

Exempt parcels. The following tax map and parcel numbers are exempt from the Comprehensive Shoreland Protection Act per RSA 483-B:12, as shown on the Newmarket Shoreland Protection Overlay District map, as amended: U2-57, U2-59, U2-60-B, U2-316, U2-330, U2-331, U2-333, U2-321, U2-327, U2-354-1, U2-355, U2-356, U2-357, U2-358, U2-359, U2-360, U2-361, U2-362, U2-363, U2-364, U2-366, U2-367, U2-368, U3-1, U3-2, U3-3, U3-4, U3-5, U3-6, U3-7, U3-8, U3-12, U3-13, U3-15, U3-16, U3-17, and U3-18.

(f)

Definitions. For the purpose of interpretation relevant to this section of this chapter, the definitions as set forth at RSA 483-B:4 of the Comprehensive Shoreland Protection Act shall apply.

(Ord. of 2-14-1996, § 5.02; Ord. No. 2010/2011-011, 8-4-2010; Ord. of 06-21-2017)

(a)

Purpose. Wetlands are a critical natural resource that affect water quality, flooding, wildlife, recreation, and aesthetics, and their protection is a goal of the Master Plan. Wetlands protect surface water quality by reducing the speed of surface water runoff, allowing for the deposit of sediment and nutrients. Wetlands protect shorelines from erosion. Wetlands absorb water during times of flooding, thus helping to reduce floodwater elevations. Wetlands help to maintain the quality of groundwater recharge. Wetlands provide habitat for a wide variety of wildlife, including fish, birds, deer other animals. Wetlands contribute to a broad range of recreational opportunities, including canoeing, hunting, fishing and bird watching. Wetlands contribute to the aesthetic values of the town, providing for open space, natural vistas, landform contrasts, and early autumn foliage. These purposes, in combination with the fact that wetlands are often ill-suited to development activities, demonstrate why the long-term protection of wetlands contributes greatly to the welfare of the community.

(b)

Authority. The wetland protection overlay district is enacted to implement the recommendations of the Town of Newmarket Master Plan. The provisions of this section and the special permit process are adopted in accordance with RSA 674:21. Additional sources considered during the drafting of this section include Buffers for Wetlands and Surface Waters (rev. 1997) and the New Hampshire Estuaries Project Management Plan (2000).

(c)

Overlay district boundaries. The wetlands protection overlay district shall include all areas of land that meet the criteria of the NH DES Wetlands Bureau rules for determination of wetlands, poorly drained and very poorly drained soils (as amended), prime wetlands, as delineated by the Newmarket Conservation Commission and approved in accordance with RSA 482-A:15 (as amended) and associated buffers, as defined in this chapter. (Changes in prime wetland designation require this section to be re-adopted in order for these provisions to apply to the new areas.) (Latest adoption version: Newmarket Prime Wetland Designation Study, West Environmental Inc., report dated: January 28, 2003.)

(1)

The location of a wetland boundary in any particular case must be determined by on-site inspection. Determination of jurisdictional wetlands shall be performed by a NH certified soils or wetlands scientist in accordance with NH DES rules.

(2)

Prime wetlands and associated buffers. Prime wetlands shall not be included in the minimum lot size or as part of any lot density calculation as required by any part of this chapter. There shall be no disturbance of any kind (including but not limited to construction, filling, dredging and the removal of vegetation) within a prime wetland or within a buffer area within 75 feet around the prime wetland. Structures shall be set back a minimum of 100 feet from prime wetlands. On-site septic systems shall be set back a minimum of 125 feet from prime wetlands.

(3)

Very poorly drained soils (or Hydric A soils, if so designated on site) and associated buffer. Such wetlands shall not be included in the minimum lot size or as part of any lot density calculation as required by any provision of this chapter. There shall be no disturbance of any kind (including but not limited to construction, filling, dredging and the removal of vegetation unless in accordance with the provisions of this chapter) within such wetlands or within a buffer area 50 feet around such wetlands.

(4)

Poorly drained soils (or Hydric B soils, if so designated on site) and associated buffer. Such wetlands may be used to fulfill up to 25 percent of the area of the minimum lot size or 25 percent of any lot density requirement as part of any section of this chapter. There shall be no disturbance of any kind (including but not limited to construction, filling, dredging and the removal of vegetation unless in accordance with the provisions of this chapter) within such wetlands or within a buffer area 25 feet around such wetlands.

(5)

If there is reasonable question or dispute as to the boundary of this overlay district, the owner of the property or the town may hire a qualified soil scientist to examine the area and report all findings to the town. The cost of such investigation shall be borne by the applicant for the development permit or approval.

(d)

General requirements. The following requirements shall apply within the wetland overlay district:

(1)

Agricultural and forestry uses shall be permitted within the wetland overlay district, provided that such uses are carried out in accordance with best management practices. Forestry uses within prime wetlands shall be permitted, provided that tree removal complies with RSA 483-b:9(V)(a) of the Comprehensive Shoreland Protection Act for all areas within the prime wetland and associated buffer.

(2)

No surface water withdrawal shall be permitted within the wetland overlay district. This section does not cover surface withdrawals for public water supplies or that are necessary for emergency situations (such as to prevent flooding or the spread of pollution or to assist in firefighting efforts).

(3)

Where development within the wetland or its buffer is required for access to, and use of, an adjacent surface water, footbridges, catwalks, and/or docks shall be permitted. Such structures shall be constructed on posts or pilings where appropriate so as to permit the unobstructed flow of water, and the natural contour of the wetland shall be preserved. Minor filling for construction of a boat ramp shall be permitted upon obtaining a state wetlands permit, and subject to the requirements of the shoreline protection overlay district (section 32-154, as amended).

(4)

Notwithstanding other provisions of this chapter, the construction of additions and extensions to single-family dwellings shall be permitted within wetland buffers provided that the dwelling lawfully existed prior to the delineation of the wetland area and that the proposed construction conforms to all other applicable codes of the town.

(e)

Driveway and utility crossings. Driveway and utility crossings through the wetland protection overlay district may be permitted for the legitimate use of land areas outside of this overlay district. Crossings may be permitted only if granted a special use permit by the planning board. The planning board may approve, deny or approve with conditions a special use permit upon a determination of compliance with the following criteria:

(1)

Such dredging, filling or other alteration associated with driveway and/or utility crossings shall be designed to minimize adverse impacts on the wetland, even if this requires adjustments in design outside of this overlay district.

(2)

Such activity is required for the legitimate use of land areas outside of the overlay district, and there is no reasonable way to eliminate the impact or shift the impact to a wetland of less functional value, and still accommodate the use.

(3)

Provisions shall be made as a condition of a special use permit to restore the surrounding site to a functional grade, condition and vegetative state in terms of both quality and quantity in order to reduce long-term damage to the site.

(4)

The proposed crossing impacts less than 6,000 square feet of very poorly drained soils and associated buffer area and 12,000 square feet of poorly drained soils and associated buffer areas.

(f)

Dredge, fills or other impacts. Other dredge, fills or impacts for development and any crossing impact in excess of the requirements of subsection (e)(4) of this section may be permitted only if granted a special use permit by the planning board. The planning board may approve, deny or approve with conditions a special use permit upon a determination of compliance with the following criteria:

(1)

The wetland is not within 150 feet of the Great Bay, Lamprey River, Piscassic River or Follett's Brook.

(2)

The applicant has prepared a mitigation proposal, upon consultation with the Newmarket Conservation Commission, that provides for increased wetland buffers elsewhere on the site that surround a wetland of greater size or greater functional value than the impacted wetland. Increased buffer areas shall only qualify for this permit if the horizontal distance or total area of the buffer is doubled. Protected areas shall be noted on a plan filed in the Rockingham County Registry of Deeds and shall be noted as no disturbance/no cut zones on the plan and in the field; or

(3)

The applicant has provided for the perpetual protection of an area of off-site wetlands of a greater area and equal or higher functional value located in an open space priority area, as denoted in the Newmarket Open Space Conservation Plan in a way that is proportional to the size and functionality of the impacted wetlands (assistance may be in the form of contributions to a wetland protection land bank if such is created).

(4)

The applicant has provided the planning board with written comments on the proposed mitigation proposal from the conservation commission.

(5)

Any mitigation proposal submitted to the board shall attest to the above requirements and shall be completed under the authority and certification of a NH certified wetland scientist using standard-accepted scientific methods.

(Ord. of 2-14-1996, § 5.03; Ord. of 2-4-2004; Ord. of 06-21-2017)

Septic systems shall be set back a minimum of 150 feet from the reference line of all Class A surface waters. The definition of "reference line," pursuant to RSA 483-B:4(XVII)(d), shall be the ordinary high-water mark. Class A surface waters in Newmarket include the Piscassic River and Follett's Brook.

(Ord. of 2-14-1996, § 5.04; Ord. of 5-7-2003; Ord. of 06-21-2017)

(a)

Purpose. The ability of land to accommodate development is related to its slope, among other factors. Steeper slopes are more fragile than flatter slopes, and are far more susceptible to erosion and runoff problems once the earth is disturbed. The Master Plan calls for control of development based on slope, and in particular calls for greatest care on slopes of 25 percent or more.

(b)

Restrictions. To accomplish the purposes of the steep slope protection overlay district, the following shall apply to all contiguous areas with a slope of 25 percent or greater:

(1)

Construction of new roads through areas with a slope of 25 percent or greater shall be minimized.

(2)

Slopes of 25 percent or more shall not be used to fulfill more than 25 percent of the area of the minimum lot size, as required per section 32-85.

(3)

Prior to any disturbance of earth, suitable provisions for the prevention of erosion and for the control of runoff shall be made. Such provisions shall be maintained in full working order until the site is again stabilized with vegetation or permanent improvements.

(Ord. of 2-14-1996, § 5.05; Ord. of 06-21-2017)

(a)

Establishment. This ordinance, adopted pursuant to the authority of RSA 674:16, shall be known as the Town of Newmarket Floodplain Protection Overlay District. The regulations in this ordinance shall overlay and supplement the regulations in the Town of Newmarket Zoning Ordinance, and shall be considered part of the zoning ordinance for purposes of administration and appeals under state law. If any provision of this ordinance differs or appears to conflict with any provision of the zoning ordinance or other ordinance or regulation, the provision imposing the greater restriction or more stringent standard shall be controlling.

(b)

Purpose. The purposes of this overlay district are to: Protect floodplains from development and construction activities which would aggravate flooding; prevent development in locations which would place occupants at risk or which would likely require rescue of occupants by emergency services personnel during floods; protect the floodplains for use as habitat and for the aesthetic qualities; and ensure town compliance with the National Flood Insurance Program.

(c)

Overlay district boundaries.

(1)

Study and map. This ordinance shall apply to all lands designated as special flood hazard areas by the Federal Emergency Management Agency (FEMA) in its "Flood Insurance Study for the County of Rockingham, N.H." dated January 29, 2021, together with the associated flood insurance rate maps (FIRM), dated January 29, 2021, or as amended, which are declared to be a part of this ordinance and hereby incorporated into this ordinance by reference.

(2)

Boundaries. This overlay district shall include all areas, which are inundated with water during the base flood (special flood hazard areas as shown on the FIRM). To determine this boundary, the following order of precedence shall apply:

a.

In Zone AE, refer to the base flood elevation data provided in the flood insurance study and accompanying FIRM;

b.

In Zone A, reference shall be made to any base flood elevation data available from any federal, state or other source including data submitted for development proposals to the town, including subdivisions and site plans.

(d)

Standards. All proposed development shall require a permit from the building official. Such permit shall not be issued until the applicant has provided all other local, state and federal permits. The building official shall review all building permit applications for new construction or substantial improvements to determine whether proposed building sites will be reasonably safe from flooding. If a proposed building site is located in a special flood hazard area, the following standards shall apply to all development within this overlay district:

(1)

New structures or expansion of existing structures may be constructed within this overlay district only in the VC district on properties with historic mill buildings and the M-2 district.

(2)

Special flood hazard area. In special flood hazard areas the building official shall determine the 100-year flood elevation in the following order of precedence according to the data available:

a.

In Zone AE, refer to the elevation data provided in the Town's Flood Insurance Study and accompanying FIRM.

b.

In Zone A the building official shall obtain, review, and reasonably use any 100-year flood elevation data available from any federal, state or other source including data submitted for development proposals submitted to the town for subdivision and site plan approvals.

(3)

The building official shall determine base flood elevation from available data, as follows:

a.

In Zone AE, elevation in Flood Insurance Study and accompanying FIRM.

b.

In Zone A, elevation data from federal, state, and other source.

c.

In Zone A, where base flood elevation is not available, is set at least two feet above the highest adjacent grade.

(4)

All new construction or substantial improvement shall:

a.

Be designed or modified and adequately anchored to prevent flotation, collapse, or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy;

b.

Be constructed with materials resistant to flood damage;

c.

Be constructed by methods and practices that minimize flood damages;

d.

Be constructed with electrical, heating, ventilation, plumbing, and air conditioning equipment, and other service facilities that are designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding;

e.

If residential, have the lowest floor (including basement) elevated to or above the base flood elevation;

f.

If nonresidential, have the lowest floor (including basement) elevated to or above the base flood elevation, or together with attendant utility and sanitary facilities shall:

1.

Be flood-proofed so that below the base flood elevation the structure is watertight with walls substantially impermeable to the passage of water;

2.

Have structural components capable of resisting hydrostatic and hydrodynamic loads and the effects of buoyancy; and

3.

Be certified by a NH licensed professional engineer specializing in structural engineering or a NH licensed architect that the design and methods of construction are in accordance with accepted standards of practice for meeting the provisions of this overlay district.

g.

If the structure has an enclosed area below the lowest floor that is subject to flooding, shall conform to the following requirements:

1.

The enclosed area shall be unfinished or flood resistant, usable solely for vehicle parking, structure access, or storage;

2.

The area is not a basement;

3.

Shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwater. Designs for meeting this requirement must either be certified by a NH licensed professional engineer specializing in structural engineering or a NH licensed architect, or must meet or exceed the following minimum criteria:

(i)

A minimum of two openings having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding shall be provided.

(ii)

The bottom of all openings shall be no higher than one-foot above grade.

(iii)

Openings may be equipped with screens, louvers, or other coverings or devices provided that they permit the automatic entry and exit of floodwaters.

(5)

Manufactured homes, to be placed or substantially improved, shall be elevated on a permanent foundation such that the lowest floor of the manufactured home is at or above the base flood elevation, and shall be securely anchored to resist flotation, collapse or lateral movement. Methods of anchoring may include, but shall not be limited to, use of over-the-top or frame ties to ground anchors. This requirement is in addition to any other applicable requirements for anchoring to resist wind forces.

(6)

For all new or substantially improved structures, the applicant shall furnish the following information to the building official:

a.

The as-built elevation of the lowest floor (including basement) in relation to NAVD, and include whether or not such structure contains a basement;

b.

If the structure has been flood-proofed, the as-built elevation (in relation to NAVD) to which the structure was flood-proofed; and

c.

Certification of flood-proofing, if required.

(7)

Where new or replacement water or sewer systems (whether municipal, community or on-site) are proposed in a special flood hazard area, the applicant shall provide the building official with assurance that these systems shall be designed to minimize or eliminate infiltration of floodwaters into these systems and discharges from these systems into floodwaters. On-site systems shall be located to avoid impairment to them and contamination from them during periods of flooding.

(8)

All recreational vehicles placed on sites within a special flood hazard area shall either:

a.

Be on the site for fewer than 180 consecutive days;

b.

Be fully licensed and ready for highway use; or

c.

Meet all requirements pertaining to permitting per subsection (d) And the elevation and anchoring of manufactured homes per subsection (d)(4) of this section.

(9)

In riverine situations:

a.

Prior to the alteration or relocation of a watercourse the applicant for such authorization shall notify the NHDES wetlands bureau and submit copies of such notification to the building official, in addition to the copies required by RSA 482-A: 3. Further, the applicant shall be required to submit copies of said notification to those adjacent communities as determined by the building official, including notice of all scheduled hearings before the wetlands bureau.

b.

The applicant shall submit to the building official, certification provided by a NH licensed professional engineer, assuring that the flood carrying capacity of an altered or relocated watercourse can and will be maintained.

c.

The building official shall obtain, review, and reasonably utilize any regulatory floodway data available from federal, state, or other sources as criteria for requiring that all development in Zone A comply with the following: "No encroachments, including fill, new construction, substantial improvements, and other development are allowed within the regulatory floodway that would result in any increase in flood levels within the community during the base flood discharge."

d.

Along watercourses that have not had a regulatory floodway designated or determined by a federal, state or other source, no new construction, substantial improvements, or other development (including fill) shall be permitted within Zone AE on the FIRM, unless it is demonstrated by the applicant that the cumulative effect of the proposed development, when combined with all existing and anticipated development, will not increase the water surface elevation of the base flood more than one foot at any point within the community.

e.

Along watercourses with a designated regulatory floodway no encroachments, including fill, new construction, substantial improvements, and other development are allowed within the floodway unless it has been demonstrated through hydrologic and hydraulic analyses performed in accordance with standard engineering practices that the proposed encroachment would not result in any increase in flood levels within the community during the base flood discharge.

(10)

Other permits. The building official shall not grant a building permit until the applicant certifies that all necessary permits have been received from those governmental agencies from which approval is required by federal or state law, including Section 404 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. 1334.

(e)

Variances.

(1)

In the case of an application for variance made to the zoning board of adjustment, three additional standards shall apply in addition to the usual five variance standards under state law. The applicant shall have the burden of showing:

a.

That the variance will not result in increased flood heights, additional threats to public safety, or extraordinary public expense;

b.

That if the requested variance is for activity within a designated regulatory floodway, no increase in flood levels during the base flood discharge will result; and

c.

That the variance is the minimum necessary, considering the flood hazard, to afford relief.

(2)

The zoning board of adjustment shall notify the applicant in writing that:

a.

The issuance of a variance to construct below the base flood elevation will result in increased premium rates for flood insurance up to amounts as high as $25.00 for $100.00 of insurance coverage; and

b.

Such construction below the base flood level increases risks to life and property. Such notification shall be maintained as part of the variance application record.

(f)

Records. Separate records shall be maintained, and made available for public inspection on request, for all development permits and variances in this overlay district. Such records shall include all materials submitted as part of the application, and an explanation of the final decision on such application. The code enforcement officer shall report all variances issued in reports to the FEMA Federal Insurance Administrator upon request, but not more frequently than annually.

(g)

Supplemental definitions. In addition to the definitions provided in section 32-11, the Federal Emergency Management Agency (FEMA) requires that additional definitions be included in this ordinance for the town to remain in the NFIP. The supplemental definitions in this section shall apply only to this overlay district, and these shall supersede any other municipal definition in case of conflict in this section. As used in this overlay district, the following terms shall have the meanings indicated:

Area of special flood hazard means the land in the floodplain within the Town of Newmarket subject to a one percent or greater possibility of flooding in any given year. The area is designated as Zones A and AE on the FIRM

Base flood means the flood having a one percent probability of being equaled or exceeded in any given year.

Base flood elevation means the computed elevation to which floodwater is anticipated to rise during the base flood. Base flood elevations (BFEs) are shown on flood insurance rate maps (FIRMs) and on the flood profiles. The BFE is the regulatory requirement for the elevation or flood proofing of structures. The relationship between the BFE and a structure's elevation determines the flood insurance premium.

Basement means any area of a structure having its floor subgrade on all sides.

Building. See "structure."

Development means any man-made change to improved or unimproved real estate, including but not limited to structures, mining, dredging, filling, grading, paving, excavation or drilling operation, or storage of equipment or materials.

FEMA means the Federal Emergency Management Agency.

Flood or flooding means a general and temporary condition of partial or complete inundation of normally dry land areas from: The overflow of inland or tidal waters; or the unusual and rapid accumulation or run-off of surface waters from any source.

Flood insurance rate map (FIRM) means the official map incorporated with this ordinance, on which FEMA has delineated both the special flood hazard areas and the risk premium zones applicable to the Town of Newmarket.

Flood insurance study means an examination, evaluation, and determination of flood hazards and if appropriate, corresponding water surface elevations, or an examination and determination of mudslide or flood related erosion hazards.

Floodplain or flood prone area means any land area susceptible to being inundated by water from any source.

Flood-proofing means any combination of structural and non-structural additions, changes, or adjustments to structures which reduce or eliminate flood damage to real estate or improved real property, water and sanitation facilities, structures and their contents.

Floodway. See "regulatory floodway."

Functionally dependent use means a use that cannot perform its intended purpose unless it is located or carried out in close proximity to water. The term includes only docking and port facilities that are necessary for the loading or unloading of cargo or passengers, and ship building or repair facilities but does not include long term storage or related manufacturing facilities.

Highest adjacent grade means the highest natural elevation of the ground surface prior to construction next to the proposed walls of a structure.

Historic structure means any structure that is: Listed individually in the National Register of Historic Places, or preliminarily determined by the Secretary of the Interior as meeting the requirements for individual listing on the National Register; certified or preliminarily determined by the Secretary of the Interior as contributing to the historical significance of a registered historic district or a district preliminarily determined by the Secretary to qualify as a registered historic district; individually listed on a State inventory of historic places in a state with an historic preservation program which has been approved by the Secretary of the Interior; or individually listed on a local inventory of historic places in a community with an historic preservation program that has been certified either (1) by an approved state program as determined by the Secretary of the Interior, or (2) directly by the Secretary of the Interior in a state without an approved program.

Lowest floor means the lowest floor of the lowest enclosed area (including basement). An unfinished or flood resistant enclosure, usable solely for parking of vehicles, structure access or storage in an area other than a basement area is not considered a structure's lowest floor, provided that such an enclosure is not built so as to render the structure in violation of the applicable non-elevation design requirements of this overlay district.

Manufactured home means manufactured housing as defined in section 32-11 of this chapter, but also for floodplain management purposes the term includes park trailers, travel trailers, and other similar vehicles placed on site for greater than 180 days. This includes manufactured homes located in a manufactured home park or subdivision.

Manufactured home park or subdivision means a parcel or contiguous parcels of land divided into two or more manufactured home lots for rent or sale.

Mean sea level means the North American Vertical Datum (NAVD) of 1988 to which the base flood elevations shown on Newmarket's Flood Insurance Rate Maps are referenced.

New construction means, for the purpose of determining insurance rates, structures for which the "start of construction" commenced on or after the effective date of an initial FIRM or after December 31, 1974, whichever is later, and includes any subsequent improvements to such structures. For floodplain management purposes, new construction means structures for which the start of construction commenced on or after the effective date of a floodplain management regulation adopted by a community and includes any subsequent improvements to such structures.

Recreational vehicle means a vehicle built on a single chassis, with 400 square feet or less when measured at the largest horizontal projection, designed to be self-propelled or permanently towable by a light duty truck, and designed primarily not for use as a permanent dwelling but as temporary living quarters for recreational, camping, travel or seasonal use. A recreational vehicle is ready for highway use if it is on its wheels or jacking system, is attached to the site only by quick disconnect type utilities and security devices, and has no permanently attached additions.

Regulatory floodway means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than a designated height.

Special flood hazard area. See "area of special flood hazard."

Start of construction includes substantial improvements, and means the date the building permit was issued, provided the actual start of construction, repair, reconstruction, placement, or other improvement was within 180 days of the permit date. The actual start means either the first placement of permanent construction of a structure on site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation; or the placement of a manufactured home on a foundation. Permanent construction does not include land preparation, such as clearing, grading and filling; nor does it include the installation of streets and/or walkways; nor does it include excavation for a basement, footings, piers, or foundations or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or part of the main structure.

Structure means a walled and roofed building, including a gas or liquid storage tank that is principally above ground, as well as a manufactured home.

Substantial damage means damage of any origin sustained by a structure whereby the cost of restoring the structure to its before damaged condition would equal or exceed 50 percent of the market value of the structure before the damage occurred.

Substantial improvement means any combination of repairs, reconstruction, alteration, or improvements to a structure in which the cumulative cost equals or exceeds 50 percent of the market value of the structure. The market value of the structure should equal: The appraised value prior to the start of the initial repair or improvement; or in the case of damage, the value of the structure prior to the damage occurring. For the purposes of this definition, "substantial improvements" is considered to occur when the first alteration of any wall, ceiling, floor, or other structural part of the structure commences, whether or not that alteration affects the external dimensions of the structure. This term includes structures, which have incurred substantial damage, regardless of actual repair work performed. The term does not, however, include any project for improvement of a structure required to comply with existing health, sanitary, or safety code specifications which are solely necessary to assure safe living conditions or any alteration of a historic structure as defined herein, provided that the alteration will not preclude the structure's continued designation as a historic structure.

Violation means the failure of a structure or other development to be fully compliant with the community's flood plain management regulations. A structure or other development without the elevation certificate, other certifications, or other evidence of compliance required under subsections (d)(3)f, 5.06(d)(5), or (d)(8)d of this section is presumed to be in violation until such time as that documentation is provided.

Water surface elevation means the height, in relation to the National Geodetic Vertical Datum (NGVD) of 1929, North American Vertical Datum (NAVD) of 1988, or other datum, where specified, of floods of various magnitudes and frequencies in the floodplains.

(Ord. of 2-14-1996, § 5.06; Ord. of 8-4-2010; Ord. of 06-21-2017; Ord. of 12-8-2020; Ord. No. 4-2020/2021, § 2, 12-16-2020; Ord. No. 01-2024/2025, § 2, 6-18-2025)

(a)

Purpose. The ordinance from which this section is derived is enacted in order to establish general guidelines for the siting of telecommunication towers and antennas and to enhance and fulfill the following goals:

(1)

Preserve the authority of the town to regulate and to provide for reasonable opportunities for the siting of telecommunication facilities while ensuring that telecommunications provider's service remains effective and efficient.

(2)

Reduce or eliminate adverse impacts such facilities may create. Adverse impacts may include, but are not limited to, impacts on aesthetics, impacts on environmentally sensitive areas, impacts to historically significant locations, impacts on flight corridors, reduction in property values, and health and safety concerns.

(3)

Provide for co-location and minimal impact siting options through an assessment of technology, current locational options, future location availability, innovative siting techniques, and siting possibilities beyond the geographic boundaries of the town.

(4)

Permit the construction of new towers only where all other reasonable alternatives have been exhausted, and to encourage the owners and users of towers and antennas to configure them in a manner that minimizes visual impacts of said structures.

(5)

Require antenna co-location on existing tower structures through cooperation and agreements between providers.

(6)

Provide for documentation of scheduling of recurring maintenance and safety inspections for all telecommunications facilities and appurtenances.

(7)

Provide for the demolition and removal of abandoned facilities. Provide a procedure for the town to remove abandoned towers to provide for the health and safety of citizens.

(8)

Provide for the removal or upgrade of technologically outmoded or abandoned facilities.

(b)

Location. Telecommunication facilities shall be allowed in accordance with the following:

(1)

On parcels situated in and owned by the town known as:

(2)

As co-location on pre-existing towers, antennas, and alternative tower structures.

(3)

In other areas of Newmarket by special use permit, provided written proof be provided to the planning board that the use meets the purposes of this overlay district and that an evaluation has taken place showing that the sites listed in subsection (b)(1) of this section are unavailable or unworkable for a new telecommunications facility or co-location on an existing tower/alternative tower structure.

(c)

Telecommunication facilities procedural requirements. All facilities shall be subject to site plan review, except as exempted in subsection (e) of this section.

(d)

Performance standards.

(1)

Principal or secondary use. Subject to this section, an applicant who obtains site review approval to site under this chapter as a secondary and permitted use may construct telecommunications facilities in addition to the existing principal use. Antennas and towers may be considered either principal or secondary uses. A different existing use or an existing structure shall not preclude the installation of an antenna or tower on a lot. Towers that are constructed, and antennas that are installed in accordance with the provisions of this chapter, shall not be deemed the expansion of a nonconforming use or structure. Telecommunications facilities shall not be considered an accessory use.

(2)

Height requirements. The height requirements and limitations outlined in this section shall preempt all other height regulations as required by this chapter, and shall apply only to telecommunications facilities.

a.

New tower construction: 180 feet maximum, up to 199 feet on towers allowing co-location.

b.

Co-location on pre-existing tower: Current height plus 15 percent, not to exceed 200 feet.

c.

On existing alternative tower structure: Current height plus 40 feet.

(3)

Setbacks and separation. The following setbacks and separation requirements shall apply only to telecommunication facilities, and shall supersede all other such standards found elsewhere in this chapter or other applicable town ordinances and regulations.

a.

Towers shall be set back a distance equal to 150 percent of the height of the tower from any residential structure not located on the property the tower is sited upon.

b.

Towers shall not contain any permanent or temporary signs, writing, symbols, or any graphic representation of any kind, except legal notice, such as "No Trespassing" or "Danger" signs, with a message area of two square feet or less and limited to ten feet above grade.

(4)

Federal requirements. All towers must meet or exceed current standards and regulations of the FAA, FCC, and any other agency of the federal government with the authority to regulate towers and antennas. If such standards and regulations are changed, then the owner of the towers and antennas governed by this section shall bring such towers and antennas into compliance with such revised standards and regulations, within six months of the effective date of such standards and regulations, unless a more stringent compliance schedule is mandated by the controlling federal agency. Failure to bring towers and antennas into compliance with such revised standards and regulations shall constitute grounds for the removal, in accordance with this regulation, of the tower or antenna, as abandoned, at the owner's expense through the execution of the posted security.

(5)

Certification of safety standards and continued need. The owner of a tower or antenna shall provide an annual certification to the code enforcement officer verifying compliance with building codes and safety standards. All towers shall comply with applicable building codes and TIA/EIA-222-F standards at all times. The certification shall also verify that the structure is still needed for the operation of the owner's network. Said certification shall be submitted to the code enforcement officer prior to December 31 of each year. Failure to submit an annual certification shall constitute abandonment and be ground for removal in accordance with subsection (g) of this section.

(e)

Exemptions.

(1)

Amateur radio; citizen band radio; receive-only antennas. This section shall not govern any tower, or the installation of any antenna that is under 70 feet in height and is owned and operated by a federally licensed amateur or citizens band station operator, and/or is used exclusively for receive-only antennas. This section adopts the provisions and limitations as referenced in RSA 674:16(IV).

(2)

Essential services and public uses. Henceforth, from the date of adoption of the ordinance from which this section is derived, telecommunications facilities shall not be considered as infrastructure, essential services, or public utilities, as defined or used elsewhere in the town's ordinances and regulations. Siting for telecommunications facilities shall be considered a use of land, and is addressed by this section.

(f)

Bonding, security and insurance. Recognizing the extremely hazardous situation presented by abandoned and unmonitored towers, the town manager shall set the form and amount of security that represents the cost for removal and disposal of abandoned towers in the event that the tower is abandoned and the tower owner is incapable and unwilling to remove the tower in accordance with subsection (g) of this section. Bonding and surety shall be consistent with section 5.04 of the Newmarket Site Plan Review Regulations set forth in Appendix B to this Code. Furthermore, the planning board shall require the submission of proof of adequate insurance covering accident or damage.

(g)

Removal of abandoned antennas and towers. Any antenna or tower that is not operated for a continuous period of 12 months, or is no longer needed for the operation of the network, shall be considered abandoned and hazardous to the public health and safety. The owner shall remove the abandoned facility, including tower footings, equipment shelter, and fencing within 90 days of receipt of a declaration of abandonment from the building official notifying the owner of such abandonment. A declaration of abandonment shall only be issued following a public hearing, noticed per town regulations, with notice to abutters and the last known owner/operator of the tower. If the abandoned tower is not removed within 90 days, the town may execute the security and have the tower removed. If there are two or more users of a single tower, this provision shall not become effective until all users cease using the tower.

(Ord. of 2-14-1996, § 5.07; Ord. of 06-21-2017)

(a)

Purpose. The purpose of the downtown commercial overlay district shall be to protect and enhance the commercial, social, civic and residential functions of the downtown village area. It is recognized that the village is an important place of business and of social interaction. Controls are intended to enhance the village by recognizing the importance of street level commercial space, providing for relatively high density, a mix of uses, and design compatible with the pedestrian scale and historic nature of the area.

(b)

Overlay district boundaries. The downtown commercial overlay district boundaries shall include all properties within the VC district and having frontage on Main Street, South Main Street, or Exeter Road, as depicted on map titled "Proposed Location of Downtown Commercial Overlay District," dated May 1, 2025.

(c)

Requirements.

(1)

Standards. Qualifying development activities on lots located within the Downtown commercial overlay district shall require site plan review, pursuant to Appendix-B, Site Plans of the Municipal Code of the Town of Newmarket, New Hampshire. Notwithstanding, development activities exempt from site plan review shall adhere to the architectural design standards, pursuant to section 3.21 Architectural and aesthetic review of Appendix-B, Site Plans of the Municipal Code of the Town of Newmarket, New Hampshire.

(2)

All permitted uses allowed in the VC district shall be allowed.

(Ord. of 2-14-1996, § 5.08; Ord. of 06-21-2017; Ord. No. 2-2023/2024, § 1, 1-17-2024; Ord. No. 01-2024/2025, § 2, 6-18-2025)

(a)

Purpose. The purpose of the historic overlay district is to protect and preserve cultural resources, particularly structures, buildings, and places of historic, architectural, and community value in an effort to promote a vibrant downtown, support existing and new business, conserve property values, foster economic development and revitalization, strengthen and expand the local economy and business community, and instill an appreciation of the town's cultural heritage and civic beauty for the education, pleasure, and general welfare of the citizens of Newmarket.

(b)

Overlay district boundaries. The historic overlay district shall include all the property within the area delineated as the "Newmarket Industrial and Commercial Historic District" as listed on the National Register of Historic Places in December 1980. District boundaries may be amended and new districts may be proposed following the enactment procedures of RSA 675.

(c)

Enforcement. The provisions of this section shall be enforced as provided in RSA 674:49 and section 32-8.

(d)

Penalties. Any person who violates any of the provisions of this section shall be subject to fines and penalties pursuant to RSA 676:17.

(Ord. of 2-14-1996, § 5.09(A), (B), (I), (M); Ord. No. 2008/09-3, 5-6-2009; Ord. No. 2009/10-01, 7-29-2009; Ord. No. 2009/2010-05, 11-4-2009; Ord. of 06-21-2017)

(a)

Purpose. The intent of the skilled nursing facility (SNF) overlay district is to allow opportunities for nursing homes with skilled nursing facilities and memory care units within an overlay zoning district.

(b)

Overlay district boundaries. The SNF overlay district shall include properties that currently fall within the B-1 and B-2 zoning districts on the southern portion of New Road. It includes the following properties: Tax Map R3, Parcel 58-8 (39.5 acres), Tax Map R3, Parcel 56 (32.3 acres), and Tax Map R3, Parcel 54 (20.93 acres). See attached map.

(c)

Definitions.

Nursing home/skilled nursing facilities mean facilities which are licensed by the New Hampshire Department of Health and Human Services under Chapter He-P 800; Part He-P 803 Administrative Rules and provide a range of social and health services, including 24 hour a day supervision and the provision of medical care and treatment, according to a plan of care by appropriately trained or licensed individuals who are employees of or who are under contract to the facility.

Skilled nursing facilities (SNF) mean licensed healthcare facilities (often in a wing of a nursing home) for individuals who require a higher level of medical care than can be provided in a nursing home or assisted living facility. Such care is provided by trained individuals, such as registered nurses (RNs) and physical, speech, and occupational therapists. These services can be necessary over the short term for rehabilitation from illness or injury, or they may be required over the long-term for patients who need care on a frequent or around the clock basis due to a chronic medical condition. Examples of skilled nursing services include wound care, intravenous (IV) therapy, injections, physical therapy and the monitoring of vital signs and medical equipment. These facilities are built to the life Safety Code NFPA 101 as adopted by the Commissioner of the New Hampshire Department of Safety (in Saf-C 6000,) and as amended pursuant to RSA 153:5, I.

Memory care facilities mean supported residential health care designed for individuals who have memory related medical diagnoses, such as dementia, Alzheimer's disease, or any other diagnosed memory loss related malady. Memory care is licensed under Chapter He-P 800; Part He P-805 Supported Residential Health Care Facility licensing Rules. Memory care units shall be staffed by skilled nursing professionals, who offer specialized dementia care and nursing services. Memory care units provide 24-hour supervised care and can be a stand-alone facility or part of a continuum of care provided within a separate wing or floor of a nursing home/skilled nursing facility.

Dementia is loss of intellectual functions (thinking, reasoning, and remembering) severe enough to interfere with daily functioning. It is not a disease in itself but a group of symptoms. Alzheimer's is the most common, others include Huntington's Disease, Lou Gehrig's Disease, Multi-Infarct Dementia (Vascular Dementia), and Parkinson's Disease. These facilities are built to life Safety Code NFPA 101 as adopted by Commissioner of the New Hampshire Department of Safety (in Saf-C 6000) and as amended pursuant to RSA 153: 5, I.

(d)

Permitted uses.

Nursing homes/skilled nursing facilities.

Memory care units.

Accessory uses — Related to providing residents with services such as meals, housekeeping, medical and health services, well-being programs and recreation facilities, and related management support services.

(e)

Design/Development standards.

Minimum lot size: 20 acres

Road Setback: 100 feet

Development Cap: For the SNF Overlay District a development cap of 75 units of nursing home/skilled nursing beds and/or memory care units are allowed.

Buffer: There shall be a 75 foot landscaped buffer around the perimeter

Parking: Parking: 0.5 space per nursing home/SNF or memory care unit or bed.

(f)

Development review process.

(1)

Projects within the SNF overlay district shall require a special use permit pursuant to Sec 32-9 of the Town of Newmarket Zoning Ordinance and RSA 676:4 I and other regulations as set forth in the Town's subdivision and site review regulations. Given the limited scale of development envisioned by the SNF, it shall be required that all SNF development projects be constructed at one time without phasing. In addition, SNF overlay district projects shall be subject to site plan review approval by the planning board under Appendix B-Site Plans Sec. 1.02.

(2)

The special use permit shall apply only to a specific project, as proposed, at the time of approval. Changes to the proposed project must be approved by the planning board, as amendments to the special use permit.

(3)

All understandings reached between the applicant and the planning board shall be outlined in a legally binding development agreement.

(4)

Special use permits shall be valid for two years from the date of planning board approval. Should active and substantial construction not have begun within two years, the special use permit shall be null and void. The planning board may, at its sole discretion, grant an extension to this two year period.

(5)

Unless specifically stated otherwise herein, an application for a special use permit is subject to the application, submission, public hearing, notice and administrative requirements of RSA 676:4, I and Appendix A - Subdivision and Appendix B - Site Plan.

(Ord. of 10-18-2017, § 2)