Pursuant to RSA 674:21, the planning board is hereby authorized to grant a special use permit for a residential open space design development in accordance with the restrictions and requirements of this article. The planning board is further authorized to adopt amendments to the subdivision regulations in accordance with RSA 674:35 and RSA 674:36 in order to further administer the requirements of this chapter.

(Ord. of 2-14-1996, § 6.01; Ord. of 9-1-2004; Ord. of 06-21-2017)

This article provides an optional flexible method of residential development that is consistent with principles of sound planning and wise land use that are not implemented through traditional zoning methods. All residential developments seeking a special use permit shall be administered by the planning board to insure that open space design development opportunities do not adversely impact neighboring properties, or the citizens and Town of Newmarket. The planning board shall consider the following purposes and balance them accordingly during review of individual applications:

(1)

Maintain and preserve rural character of the Town of Newmarket by allowing an alternative residential development option which preserves large areas of open space, provides for visual buffers from existing roads and residential development, and permits agricultural opportunities on parcels of open space.

(2)

Require the preservation of large, contiguous parcels of open space throughout the town and in neighboring jurisdictions and as found in the Newmarket Open Space Conservation Plan.

(3)

Provide for a diversity of housing types, opportunities, and styles.

(4)

Encourage flexible road design that will contribute to and enhance a rural atmosphere and maintain adequate safety design standards.

(5)

Encourage connected corridors of open land throughout town and region for preservation of habitat, environmental resources, and public enjoyment. To enhance the opportunity for protected open spaces in town and new subdivisions eventually adjoin each other, ultimately forming an interconnected network of conservation areas across the town.

(6)

Encourage open space design in highly sensitive areas of town that are part of an overall plan for the conservation of natural resources and preservation of large contiguous unfragmented parcels of land.

(7)

Require minimal lot sizes and the clustering of homes in close physical proximity to maximize preservation of open space lands.

(8)

Provide for a flexible and coordinated application process to reduce design costs to the applicant and promote a collaborative result with board input. The special use permit is meant to allow the board to participate jointly with the applicant to prepare a development that is consistent with this chapter, applicable regulations, and the Master Plan for the Town of Newmarket.

(9)

Minimize fragmentation of open space, habitat, and conservation land on a variety of scales.

(Ord. of 2-14-1996, § 6.02; Ord. of 9-1-2004; Ord. of 06-21-2017)

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

Community homeowners' association means a private nonprofit corporation, association or other nonprofit and/or voluntary legal entity established by the developer for the benefit and enjoyment of the residents of the development. Membership in said association shall be mandatory for property owners and made a required covenant in any deed issued or conveyed. It shall provide voting and use rights in the common area when applicable and may charge dues to cover expenses, which may include tax liabilities of the common area, recreational or utility facilities. Articles of association or incorporation must be acceptable to the planning board and reviewed by town counsel and any other municipal, county, state agency, body, commission or department required by law to approve of the same.

Developable land base means the total area of land that forms the basis for determining the baseline for development and conservation land calculations. This area shall be calculated using the following limitations (the more restrictive designation shall apply):

(1)

Not included:

a.

Open water/land that is subject to tidal flows.

b.

Very poorly drained soils.

c.

Slopes equal to or greater than 25 percent.

(2)

Included up to and equal to 25 percent of the developable land base. The total of the following areas can be used, in their aggregate, to account for no more than 25 percent of the developable land base:

a.

Poorly drained soils.

b.

Lands that are within utility easements.

c.

Lands within the 100-year floodplain.

Exclusive use land division means land ownership divisions that are created as part of this chapter and are limited to the exclusive use of the owner. This land division is meant to provide flexibility in design, provide for the siting of structures and ownership. The ownership interest can include fee-title, condominium format, or any other reasonable method of division. The creation and modification of these land parcels shall be considered a subdivision in accordance with RSA 672:14 but shall not require compliance with provisions of this chapter regarding frontage and lot area except as found in this article.

Open space - common land means any parcel or area of land set aside as a result of an approval under this chapter. This land area shall be designated for the benefit and enjoyment of the residents of the approved development. These areas may contain accessory structures for recreation purposes, water access, and improvements necessary and appropriate for the educational, recreational, cultural, social or other noncommercial/nonresidential/non-industrial uses for residents of the subdivision, plus any utility services (including water wells, well radii, and individual and/or common septic facilities or land areas required for state septic approvals) utilized by the residents of the subdivision. Other than the above, common land shall be preserved in perpetuity through deed restriction, conservation easement, or other legal restriction. The restriction shall be recorded and designated on the approved and recorded plat to prohibit from any further use, subdivision, or development.

Open space - conservation land means land that is preserved as protected open space in perpetuity through deed restriction, conservation easement, or other legal restriction and that is designated on the approved and recorded plat. Restrictions must be tied to the title of the land, regardless of its subsequent ownership. Such land may be given to a public body dedicated to conservation of forests, parkland, etc., or to a private conservation trust, with the intent of preserving in its original ecological condition. Conservation land areas may be located within well radii and may contain wells and associated appurtenances but shall not contain septic facilities, drainage facilities, or other recreational structures. Only unpaved pedestrian trails and associated structures (such as kiosks, walking bridges, etc.) are permitted in these spaces. Conservation land is not required to be open to the public access unless it is required as part of an elective bonus provision provided for in this chapter or at the wishes of the landowner.

(Ord. of 2-14-1996, § 6.03; Ord. of 9-1-2004; Ord. of 06-21-2017)

Open space design subdivisions shall be permitted in the R-1, R-2, and M-4 districts. Open space design subdivisions in the M-4 district shall meet additional criteria with respect to outdoor recreation, such other requirements shall be adopted by the planning board as part of the subdivision regulations.

(Ord. of 2-14-1996, § 6.04; Ord. of 9-1-2004; Ord. of 06-21-2017)

All open space design developments shall obtain a special use permit from the planning board. The special use permit shall clearly set forth all conditions of approval and shall list all plans, drawings and other submittals that are part of the approved use. Prior to the granting of a special use permit, the planning board shall hold a public hearing. Everything shown or otherwise indicated on a plan or submittal that is listed on the special use permit shall be considered to be a condition of approval. Construction shall not deviate from the stated conditions of approval without modification by the planning board.

(Ord. of 2-14-1996, § 6.05; Ord. of 9-1-2004; Ord. of 06-21-2017)

In addition to standard review requirements of the subdivision regulations, the planning board must find the following conditions to have been met in order to grant a special use permit.

(1)

The application is in compliance with all requirements of this chapter.

(2)

There is no existing violation of state or federal environmental law or regulation or this chapter on the site. Applications where such a violation exists must include mitigation or remediation plans as part of an application.

(3)

The open space in the development is designed consistent with the requirements of this chapter. This determination, to be made by the planning board, shall be made by considering the following aspects of the surrounding area.

a.

Protection of natural resources, determined through analysis of the following:

1.

Protection of environmentally sensitive areas, including but not limited to, wetlands, shoreland buffers, wildlife corridors, significant groundwater resources, etc.;

2.

Maintenance of viewsheds and other visually appealing aspects of the site;

3.

Connectivity to regional open space areas and adjoining parcels;

4.

Identification and preservation of wildlife corridors and rare and/or endangered species and supporting habitats.

b.

Protection of cultural resources, determined through analysis of the following:

1.

Establishment of new and protecting existing trailways for travel;

2.

Protection of historic buildings or significant historical landscapes;

3.

Establishment, protection and promotion for agricultural uses of the site;

4.

Enhancement of other active or passive recreation facilities or opportunities.

c.

At least 40 percent of the developable land base for the parcel must be set aside and designated as the minimum required open space.

1.

At least 75 percent of minimum required open space shall be designated as conservation land, as defined in this chapter.

2.

Up to 25 percent of the minimum required open space may be considered common land, as defined in this chapter.

3.

Additional land that is not included in the developable land base shall be considered additional open space - conservation land as defined herein but shall not be subject to other requirements regarding shape and size.

d.

The minimum restricted open space and/or common area within a development subject to a special use permit under this chapter shall be owned by and/or legally restricted by requirements of this chapter by an easement owned by at least one of the following:

1.

Community homeowners' association, which may use it only in accordance with these restrictions, or may later grant the land to a private or public entity to hold as conservation land.

2.

A public or private conservation entity that shall hold and have enforcement rights related to the status of the land as conservation land.

3.

As additional protection, all land to be restricted shall include a notation on the recorded Mylar indicating the land as "This land is designated and restricted as open space in accordance with RSA 674:21-a and shall be enforceable by the Town of Newmarket."

e.

The minimum restricted open space shall be designed in accordance with additional regulations governing the shape, configuration, location, and management plan adopted by the planning board as part of the subdivision regulations.

(Ord. of 2-14-1996, § 6.06; Ord. of 9-1-2004; Ord. of 06-21-2017)

Applications for special use permits for an open space design development shall be made in accordance with the procedures set forth in the relevant sections of the subdivision regulations of the Newmarket Planning Board. These applications shall be joined with an application for subdivision approval in the interest of procedural ease. The planning board shall adopt regulations providing for the following minimum required milestones in the application process.

(1)

Pre-application discussion. Planning department.

(2)

Environmental resource and yield plan submittal. Planning department.

(3)

Yield equation and yield plan review and recommendation to the planning board. Planning department.

(4)

Submission hearing, preliminary plan review, and yield equation/plan approval. Planning board review - notification and public hearing required.

(5)

Site walk.

(6)

Application consideration.

(7)

Decision.

(Ord. of 2-14-1996, § 6.07; Ord. of 9-1-2004; Ord. of 06-21-2017)

The planning board may condition its approval on reasonable conditions necessary to accomplish the objectives of this chapter, the Newmarket Master Plan, or any other relevant federal, state, or local regulation ordinance or law.

(Ord. of 2-14-1996, § 6.08; Ord. of 9-1-2004; Ord. of 06-21-2017)

Lot size and frontage. The minimum parent parcel lot size shall be governed as any development that is required to produce a minimum of five acres of restricted open space that satisfies this chapter. The minimum frontage for the development shall be of sufficient length to provide safe access for a roadway to access the parcel. The width of the access shall be a minimum of 50 feet and shall be dedicated as a fee title interest to the town for a public roadway or a community homeowners' association for a private roadway. Frontage on roads existing at the time of application shall be preserved as buffers to the maximum extent possible in addition to all required setbacks. The access to the development shall be over fee-title ownership land and cannot be through an easement of right-of-way.

(Ord. of 2-14-1996, § 6.09; Ord. of 9-1-2004; Ord. of 06-21-2017)

Maximum density, in terms of the number of allowable units, for an open space design shall be determined by use of an environmental resource and yield plan and development yield equation. All numbers that are 0.5 and over (x.5 and above) shall be rounded up to the next highest round number. The purpose of the yield plan and the development yield equation is to show the density that is reasonably achievable with respect to environmental impacts, economic realities, and sound land use. The intent is to create a resource inventory that is part of the overall application and not to require an applicant to incur additional expense in the formal engineering design of two separate subdivision plans. Both methodologies shall be submitted showing the development count and the allowed density shall be determined by the planning board. The planning board shall adopt additional regulations, as part of the subdivision regulations that provide for the requirements and submittal of materials in accordance with this article.

(1)

An additional density bonus of ten percent may be granted by the planning board as part of the special use permit provided the minimum open space required as part of section 32-196(3)c is greater than or equal to 50 percent of the developable land base.

(2)

An additional density bonus of five percent may be granted by the planning board as part of the special use permit provided public access is granted to the open space for passive recreation purposes. Such grant shall be non-lapsing and provided for in the deeds of the parcels.

(Ord. of 2-14-1996, § 6.10; Ord. of 9-1-2004; Ord. of 06-21-2017)

This article supersedes any provision to the contrary found elsewhere in this chapter with respect to lot size, setbacks, frontage, access, and unit density for land divisions created under this chapter.

(1)

Only single-family detached residential uses shall be permitted in an open space design development.

(2)

Setbacks, dimensions, and building sites. In addition to these minimum requirements, the planning board shall adopt regulations governing the definition and location of building sites, the design of shared access points and driveways, and other provisions necessary to carry out these requirements.

a.

The following frontage requirements shall apply:

1.

The development shall have 50 feet of frontage where the parcel accesses the existing town road system and the access shall be within the Town of Newmarket.

2.

Each single-family lot or unit shall have a minimum of 25 feet of exclusive use land with frontage on interior roadways or access roads for driveway purposes. Shared driveways and access easements along access roads may be permitted to satisfy this requirement.

3.

No more than three houses may share a single access point to the interior roadways.

4.

No building shall be more than 500 feet from the interior roadways.

b.

Developments that contain three dwelling units or less may be accessed from an existing town road via a single, shared private right-of-way, provided the following additional requirements are provided:

1.

The buildings are no greater than 500 feet from the point of access.

2.

The parcel has 200 feet or more of frontage on an existing town road.

3.

Prior to the issuance of a building permit, the applicant shall produce evidence that notice of the limits of municipal responsibility and liability pursuant to RSA 674:41(I)(d)(2) has been recorded in the county registry of deeds for the site for which the building permit is sought.

4.

The minimum required open space for any such development shall be eight acres.

c.

All developments shall contain a legal description that designate a reasonable amount of exclusive use land attributable to each particular structure for the purpose of ownership and reasonable accessory structures, landscaping, and yard areas. This provision is not meant to establish a minimum lot area and none shall be required beyond this provision.

d.

The following setbacks shall apply to all residential structures within the development:

1.

75-foot setback from all exterior property lines of the parent parcel.

2.

25-foot setback from the edge of pavement for roadways within, and part of, the development.

3.

30-foot structural separation for all single-family structures within the development.

4.

Ten-foot structural setback from all exclusive use land delineation lines, except where shared access easements are provided.

(Ord. of 2-14-1996, § 6.11; Ord. of 9-1-2004; Ord. of 06-21-2017)

The planning board shall adopt regulations as part of the subdivision regulations as directed herein and consistent with this chapter, which shall apply to the open space design development, including the right to waive such regulations.

(Ord. of 2-14-1996, § 6.12; Ord. of 9-1-2004; Ord. of 06-21-2017)

All utilities serving the development shall be underground.

(Ord. of 2-14-1996, § 6.13; Ord. of 9-1-2004; Ord. of 06-21-2017)

Any special use permit shall expire if active and substantial development or building has not begun on the site by the owner or the owner's successor in interest within 12 months after the day of approval, or in accordance with the terms of approval (RSA 674:39).

(Ord. of 2-14-1996, § 6.14; Ord. of 9-1-2004; Ord. of 06-21-2017)