Rochester City Zoning Code
ARTICLE 3
Administration
§ 275-3.1 General provisions.
A.
Zoning Administrator. This chapter shall be administered and interpreted by the Zoning Administrator, who shall be appointed by the Rochester City Manager. The City Manager may, at his/her option, designate a different individual to serve as Zoning Enforcement Officer, with responsibility for enforcing this chapter. If the City Manager does not make such a separate appointment, enforcement responsibilities shall be vested in the Zoning Administrator. Furthermore, the Zoning Administrator and Zoning Enforcement Officer may assign or designate all or some of their duties to others subject to approval of the City Manager.
B.
Appeals. Any person who believes that the Zoning Administrator has made an error in any interpretation or application under this chapter may appeal that decision to the Zoning Board of Adjustment as an administrative appeal. (See Article 4, Zoning Board of Adjustment.)
C.
Recourse for prohibited uses. Where an applicant is informed that his/her proposed project does not comply with the requirements of this chapter, if the applicant nonetheless believes that there is justification for the project then he/she has four options:
(1)
Appeal. Appeal the decision to the Zoning Board of Adjustment if the administrative decision is believed to be incorrect (see Article 4, Zoning Board of Adjustment);
(2)
Variance. Apply to the Zoning Board of Adjustment for a variance if it is believed that special circumstances surrounding the property justify a departure from the requirements of this chapter (see Article 4, Zoning Board of Adjustment);
D.
Fees. Application fees and other pertinent fees may be established under this chapter. Fees shall be established specifically as part of this chapter or separately by the Rochester City Council.
E.
Outside review. As outlined in RSA 676:4, I(g), any applicant may be assessed reasonable fees to cover the cost of special investigative studies, review and inspections by outside consultants, and review of documents by the City Attorney.
F.
Entering property.
(1)
The Zoning Administrator and the Zoning Enforcement Officer (if different from the Zoning Administrator), and their staff, shall have the authority to make any on-site inspections which might be necessary to carry out their duties in the administration and enforcement of this chapter.
(2)
Furthermore, every applicant for a permit or approval under this chapter or under the Site Plan Regulations or the Subdivision Regulations, by virtue of submitting the application, shall be deemed to have consented to any inspection(s) of the subject property that may be reasonably necessary for the City's officials, employees, board members, or other agents to make informed decisions relative to the application and to determine compliance after approval with the subject permit or approval.
(3)
Refusal by an applicant to consent to such inspection may be grounds for denial of any permit or approval where such inspection is reasonably necessary to make any determinations relevant to the application.
(4)
It is understood that any City officials must use all due care and consideration when entering property under this chapter.
G.
Vesting. See RSA 674:39 in relation to vesting of projects.
H.
Government land uses and development. See RSA 674:54 in relation to use and development by government agencies.
I.
Public uses. For all public uses, in addition to the provisions of RSA 674:54, it is requested of local, state, and federal governments that a public hearing before the Planning Board be held, with certified notices to abutters and posting of a public notice at least 10 days in advance of the public hearing, and that the following be submitted to the Planning Board:
(1)
A statement indicating the need for the facility or use, the criteria used in selecting a site, the location of alternative sites that were considered, and the reasons for selecting the specific site;
(2)
A statement discussing conformity with this chapter, the intent of this chapter, the Site Plan Regulations and/or Subdivision Regulations, the Master Plan, and other governmental policies and plans;
(3)
A report about potential impacts and plans to mitigate impacts (including traffic and other impacts listed in Article 28, Performance Standards); and
(4)
All documentation, materials, and engineering detail ordinarily required under the Site Plan Regulations.
J.
Pending ordinance changes. In accordance with RSA 676:12, concurrent with the adoption of this chapter, the Rochester City Council also votes to be subject to the provisions of RSA 676:12, I, wherein once the first legal notice for a proposed change in this chapter is published pursuant to RSA 675:7, unless exempted by RSA 676:12, VI, no building permit may be issued for any use or activity which would not be permitted under the proposed zoning change. Once final action is taken on the proposed zoning change, the Director of Building, Zoning, and Licensing Services may issue or deny the building permit based upon whether the zoning in place at that time (after final action) allows the use or activity or not.
K.
Designee. Any City official or board or commission may designate any particular task or responsibility under this chapter to another official or board or commission, unless otherwise prevented from doing so by law.
§ 275-3.2 Effect of other laws.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
A.
Most restrictive provision. Where a provision of this chapter differs from any provision contained in any other applicable statute, regulation, ordinance, code, standard, or policy, that provision which imposes the greatest restriction or the highest standard shall govern.
B.
Overriding state or federal law. Where any state or federal law overrides any provision(s) of this chapter, the state or federal law shall be determining and any affected portions of this chapter may be disregarded or interpreted as necessary to comport with the overriding law.
§ 275-3.3 Permitting.
No application shall be approved nor shall any permit or approval be issued except in compliance with all pertinent provisions of this chapter and all requirements imposed under site plan and subdivision review. Where a proposal is subject to site plan or subdivision review, no permit or approval shall be issued until that review is conducted unless otherwise appropriately waived or adjusted. The following permits are required under this chapter (and under other sections of this chapter):
A.
Building permit. No building or other structure as required by the City of Rochester Building Code, as amended, shall be constructed, altered, enlarged, or moved unless a building permit for such action has been issued by the Director of Building, Zoning, and Licensing Services. In accordance with RSA 676:13, I, no building permit or certificate of occupancy shall be issued for any building or activity unless it is in compliance with the provisions of this chapter.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
B.
Sign permit. No sign regulated by Article 29 shall be installed, erected, placed, displayed, altered, or enlarged unless a sign permit for such action has been issued by the Director of Building, Zoning, and Licensing Services.
C.
Fence permit. No fence or wall regulated by Article 23, Accessory Uses, shall be installed, erected, or expanded unless a fence permit has been issued by the Director of Building, Zoning, and Licensing Services.
D.
Driveway permit. No driveway, access point, or curb cut connecting a lot to a public road shall be constructed or installed unless a driveway permit has been issued in accordance with all requirements of this chapter and all other City, state, and federal regulations and policies. The Director of Building, Zoning, and Licensing Services or Commissioner of Public Works may waive the requirement for issuance of a specific driveway permit accessing a City road where a site plan application indicating details of the proposed driveway or access point has been duly approved by the Planning Board.
E.
Certificate of occupancy. No building or structure hereafter erected or altered (wholly or partly) or moved shall be used or occupied until the Director of Building, Zoning, and Licensing Services has issued a certificate of occupancy for the building or structure specifying the use to which it may be put. The Director may withhold issuance of a certificate of occupancy pending completion of required site improvements; compliance with this chapter and the Site Plan Regulations/Subdivision Regulations; compliance with any conditions of approval; compliance with pertinent City, state, and federal requirements; and submission of required information and documentation; and for other appropriate reasons. (See RSA 676:13.)
F.
Foundation certification. Footings/foundations for all new building construction shall be certified by a State of New Hampshire licensed land surveyor prior to any further construction.
§ 275-3.4 Enforcement.
A.
This chapter shall be enforced in accordance with the provisions set forth in RSA 676:15, 676:17, 676:17-a, 676:17-b and other applicable law.
B.
It is the responsibility of the Zoning Administrator to enforce this chapter.
C.
Any and all appropriate measures may be taken to enforce this chapter and to prevent, restrain, correct, abate, or mitigate any alleged violations, including, but not limited to, issuing notices of violation, cease-and-desist orders, fines and penalties, local land use citations, injunctions, or warnings; withholding of permits or approvals, where applicable; seeking to negotiate a reasonable solution with the alleged violator; or referring the alleged violations to the City Solicitor or the City of Rochester Police Department, or to other local, state, and federal agencies. See RSA 676:15 to 676:17-b.
D.
The owner of record of a property is responsible for ensuring that his/her/its property complies in full with all provisions of this chapter.
E.
Any person, partnership, association, company, corporation or individual who or which violates, disobeys, omits, neglects, or refuses to comply with the provisions of this chapter shall be deemed guilty of a misdemeanor if a natural person or guilty of a felony if any other person and, upon conviction thereof by a court of competent jurisdiction, shall be punished by a civil fine as set forth in RSA 676:17.
F.
Every violation of these regulations shall be a separate and distinct offense.
G.
Safe site conditions. Any person, company, or other entity who or which has been served with a notice and ceases any work or other activity shall not leave any structure or lot in such a condition as to be a hazard to public health or safety or a detriment to the general welfare.
H.
Where any successful legal action is brought by the City to enforce this chapter, the City may recover its out-of-pocket costs and reasonable attorneys' fees actually expended in pursuing the legal action (in accordance with RSA 676:17, II).
§ 275-3.5 Amendments.
A.
Procedure. The procedure for amending this chapter is specified in RSA 675:2 and 675:7. Amendments to this chapter may be initiated by any citizen, the Planning Board, the City Council, the Mayor, the City Manager, or any department or other City board or commission in accordance with this chapter. The chronological steps for enacting zoning amendments are as follows:
(1)
Petition form. A blank petition form is obtained from the Planning and Development Department.
(2)
Submission.
(a)
The petition is completed and returned to the City Clerk's office along with a fee of one hundred dollars ($100.) and any other pertinent materials. In the case of text amendments (see Subsection B below) the petition shall include specific proposed language.
(b)
The fee is not charged, and the formal petition form need not be used, for amendments initiated by any board, commission, department, or other City official acting in an official capacity.
(3)
The City Clerk's office forwards a copy of the petition to the Planning and Development Department.
(4)
Deadline. See RSA 675:2 and 675:7.
(5)
Council consideration.
(a)
The petition is placed on the City Council agenda for consideration. At its discretion, the Council may deny the petition at this stage. If acceptable, it is sent to the City Attorney to place it into legal form.
(b)
At the discretion of the City Manager, this step may be skipped and the petition may be sent directly to the City Attorney to place into legal form.
(6)
Legal form. The City Attorney places the petition into legal form.
(7)
First reading. City Council holds first reading on the petition. At its discretion the Council may deny the petition at this stage. When a petition is denied at any stage, the Council may elect to initiate an alternative amendment or to request that the Planning Board formulate an alternative amendment.
(8)
Planning Board recommendation.
(a)
The Planning Board makes a formal recommendation on the petition. The Board must make its recommendation within 45 days of first reading. At its discretion, the City Council may extend this time frame up to an additional 30 days.
(b)
If the Planning Board recommends against a zoning amendment, a two-thirds vote of the City Council shall be required to adopt the amendment. If the Planning Board does not submit a recommendation within 45 days of first reading (or as may be extended by the City Council) or if it does not make a recommendation, then it shall be deemed a favorable recommendation for the purpose of this subsection herein.
(c)
Where the Planning Board initiates an amendment, the proposal shall not be sent to the Board for a recommendation.
(9)
Public hearing. A public hearing is held, either by the full City Council or by a subcommittee of the City Council. The public notice must be placed in a newspaper of general circulation at least 10 days prior to the public hearing and it must be posted in at least two public locations. The full text of the proposed amendment need not be included in the notice if an adequate statement describing the proposal is stated in the notice.
(10)
Second reading.
(a)
Second reading is held and the amendment is either adopted or denied. Any proposed amendment shall require a majority affirmative vote of Council members present in order to pass except where the Planning Board has recommended denial (as discussed above). The City Council shall take final action on any petition within 120 days of first reading (except in the case of protest petitions; see Subsection C below).
(b)
The Council may make minor changes to the proposed amendment at second reading/adoption, provided the amendment remains substantially the same as that which was advertised for the public hearing.
(11)
Filing. A copy of any approved zoning amendments is placed on file with the City Clerk for public inspection. A copy is also sent to the New Hampshire Office of Energy and Planning.
B.
Types of amendments. There are two types of zoning amendments as follows. The procedure for amendments is the same except where noted.
C.
Protest petition.
(1)
In accordance with RSA 675:5, adoption of an amendment that is the subject of a protest petition shall require a favorable vote of 2/3 of all the members of the City Council present and voting. In order to qualify as a protest petition, a protest against a proposed map amendment must be signed by either:
(2)
The address of the subject property must be included on the petition and the property owners signing the petition must identify themselves on the petition by name and address so that the City Clerk may identify them as interested and affected parties.
(3)
The protest petition must be submitted to the City Clerk at least seven days prior to the date at which second reading is scheduled. Copies of the protest petition will be distributed to City Council members.
(4)
Any individual protest petition may apply to only one proposed zoning amendment. Separate protest petitions must be submitted for multiple amendments.
(5)
In the case of a protest petition, the City Council shall act within 120 days of the date of first reading.