Proposed Zoning Amendments 2009

ATKINSON PLANNING BOARD

21 Academy Avenue

Atkinson, New Hampshire 03811

Phone: (603) 362-5761 Fax: (603) 362-5305

TO: Town Clerk

FROM: Susan Killam, Chairman

Planning Board

DATE: January 15, 2009

SUBJECT: Zoning Amendment for Ballot 2009

After conducting the required Public Hearing meetings, the following Proposed Zoning Amendment Text, which was voted on, is being forwarded by the Planning Board to appear on the Town Ballot of 2009.

Are you in favor of an Amendment to Zoning Ordinance Article XII, Section 1200: Penalties and Remedies, proposed by the Planning Board, which would delete the existing text and replace it with new text, to simplify our code and bring it in line with the State of NH RSA’s.

Are you in favor of an Amendment to Building Code Section 900: Enforcement, proposed by the Planning Board that would delete the existing text and replace it with a new text, which would simplify our code and bring it in line with the State of NH RSA’s.

Are you in favor of an Amendment to Zoning Ordinance, proposed by the Planning Board which would replace Section 610: Low and Moderate Income Accommodation Incentive System, so that it complies with the new State Law on providing realistic and reasonable opportunities for the development of workforce housing, which was introduced as Senate Bill 342 and will become effective as RSA 674:58-61 July 2009.

Are you in favor of an Amendment to Zoning Section 410: Wetland, proposed by the Planning Board which would add a new Section 410:10: Prime Wetlands, to add State level (DES) approval process that will further protect certain ecologically sensitive areas.

Amendment to Zoning Ordinance Article XII, Section 1200 which would delete the existing text and place it with new text, which would simplify our code and bring it in line with the State RSA.

Existing Text:

Article XII: Penalty

Section 1200 Penalty

1200:1 Pursuant to RSA 676:17, any violation of the zoning ordinance, subdivision regulations, or site development plan review regulations shall be made punishable by a fine of $100 for each day that such violation is judged by the court to continue after the violator receives written notice from the municipality that s/he is in violation of any ordinance or regulations so adopted under this ordinance.

1200:2 The Board of Selectmen may institute in the name of the Town of Atkinson any appropriate action or proceedings to prevent, restrain, correct, or abate violations of this ordinance. (1981)

and replace it with the following:

Section 1200 Penalties and Remedies

1200:1 Any violation of the zoning ordinance subdivision regulations, or site development plan review regulations, shall be made punishable pursuant to RSA 676:17 as amended.

Amendment to Section 900 of our Building Code Ordinance which would delete the existing text and replace with a new text which would simplify our code and bring it in line with the State RSA’s

Existing Text:

Section 900 Enforcement

900:1 Any person, persons, firm or corporation violating any of the provisions of this ordinance shall be subject to a fine not exceeding $10.00 for each violation. Each day that any violation is allowed to continue constitutes a separate offense.

900:2 The Board of Selectmen may institute in the name of the Town any appropriate action or proceedings to prevent, restrain, correct or abate violations of this ordinance.

and replace it with the following:

Section 900 Enforcement

900:1 Any person, persons, firm or corporation violating any of the provisions of this ordinance shall be subject to Penalties and Remedies pursuant to RSA 676:17 as amended.

SECTION 610 INCLUSIONARY HOUSING ACCOMMODATION INCENTIVE SYSTEM

610:1 A. Purpose Statement

The purposes of this Article are as follows:

To encourage and provide for the development of affordable workforce housing;

To ensure the continued availability of a diverse supply of home ownership and rental opportunities for low to moderate income households

To meet the goals related to affordable and workforce housing provisions set forth in the town’s Master Plan: and;

To comply with the requirements of SB 342, An Act establishing a mechanism for expediting relief from municipal actions which deny, impede, or delay qualified proposals for workforce housing (RSA 674:58-61).

In the course of implementing this ordinance, the Town of Atkinson has considered the region’s affordable housing needs as described in the Rockingham Planning Commission’s Housing Needs Assessment and the Rockingham Planning Commission’s Regional Fair Share Analysis.

610:1 B. Authority

This innovative land use control Article is adopted under the authority of RSA 674:21, and is intended as an "Inclusionary Zoning" provision as defined in RSA 674:21(I)(k) and 674:21(IV)(a) as well as RSA 672:1, III-3, effective July 2009, which states:

"All citizens of the state benefit from a balanced supply of housing which is affordable to persons and families of low and moderate income. Establishment of housing which is decent, safe, sanitary and affordable to low and moderate income persons and families is in the best interests of each community and the state of New Hampshire, and serves a vital public need. Opportunity for development of such housing shall not be prohibited or unreasonably discouraged by use of municipal planning and zoning powers or be unreasonable interpretation of such powers.

610:1C. Definitions

Affordable: Affordable means housing with combined rental and utility costs or combined mortgage loan debt services, property taxes, and required insurance that do not exceed 30 percent of a household’s gross annual income

Multi-family housing: Multi-family housing for the purpose of workforce housing developments, means a building or structure containing 5 or more dwelling units, each designed for occupancy by an individual household. (Adopted 2009).

Reasonable and realistic opportunities for the development of workforce housing: opportunities to develop economically viable workforce housing within the framework of a municipality’s ordinances and regulations adopted pursuant to this chapter and consistent with RSA 672:1, III-e.

Workforce housing/owner occupied: housing which is intended for sale and which is affordable to a household with an income of no more than 100 percent of the median income for a 4-person household for the metropolitan area or county in which the housing is located as published annually by the United States Department of Housing and Urban Development.

Workforce housing/renter occupied: rental housing which is affordable to a household with an income of no more than 60 percent of the median income for a 3-person household for the metropolitan area or county in which the housing is located as published annually by the United States Department of Housing and Urban Development. Housing developments that exclude minor children from more than 20 percent of the units, or in which more than 50 percent of the dwelling units have fewer than two bedrooms, shall not constitute workforce housing for the purposes of this subdivision.

Area Median Income (AMI): the medial income of the greater region, either the HUD Metropolitan or Non-Metropolitan Fair Market Rent Area to which the community belongs, as is established and updated annually by the United Stated Department of Housing and Urban Development. Income considers both wage income and assets.

Market Rate Housing: any units within a development, whether the unit is to be owner or renter occupied, that is intended to be available for sale or occupancy at the prevailing market value for the area similar to comparable real estate transaction.

610:2A Qualification for Higher Density

A proposed development must meet the following prerequisites in order to apply the incentive provisions of Section 610:3:

At least 20 percent of the total dwelling units within the parcel must be dedicated to low-moderate income dwellings

The development must be eligible for review as a Rural Cluster Residential Development as provided in Article VI, Section 600.

The development may include single family, duplex, or multi-family units with up to eight units per building.

610:2B Appeal

Any person aggrieved by a Planning Board decision that constitutes a denial of a Conditional Use Permit due to noncompliance with one or more of the provisions of this ordinance may appeal that decision to the Superior Court, as provided for in RSA 677:15. A Planning Board decision on the issuance of a conditional use Permit cannot be appealed to the Zoning Board of Adjustment (RSA 676:5 III).

610:2C Procedural Requirements/ Applicant

Notice of Intent to Build Workforce Housing. Any person who applies to the Planning Board for approval of a development that is intended to qualify as workforce housing under this subdivision shall file a written statement of such intent as part of the application.

Waiver. Failure to file such a statement shall constitute a waiver of the applicant’s rights under RSA 674:61 (the builder’s remedy) but shall not preclude an appeal under other applicable laws.

In any appeal where the applicant has failed to file the statement required by this section, the applicant shall not be entitled to a judgment by a court on appeal that allows construction of the proposed development, or otherwise permits the proposed workforce housing development to proceed despite its nonconformance with the municipality’s ordinances or regulations.

610:2D Procedural Requirements/ Planning Board and Applicant

Notice of conditions. If the Planning Board approves an application to develop workforce housing subject to conditions or restrictions, it shall:

1. Notify the applicant in writing of such conditions and restrictions, and

2. Give the applicant an opportunity to establish the cost of complying with the conditions and restrictions and the effect of compliance on the economic viability of the proposed development.

The Board’s notice to the applicant of the conditions and restrictions shall constitute a conditional approval solely for the purpose of complying with the requirements of RSA 676:4 I (i). It shall not constitute a final decision for any other purpose, including the commencement of any applicable appeal period.

Submission of evidence to establish cost of complying with conditions. Upon receiving notice of conditions and restrictions as described above, the applicant may submit evidence to establish the cost of complying with the conditions and restrictions and the effect on economic viability within the period directed by the board, which shall not be less than 30 days.

Review of evidence

3. Upon receipt of such evidence, the Board shall allow the applicant to review the evidence at the Board’s next meeting for which 10 days notice can be given, and shall give written notice of the meeting to the applicant at least 10 days in advance. At such meeting, the board may also review and consider evidence from other sources.

4. The Board may affirm, alter, or rescind any or all of the conditions or restrictions of approval after such meeting.

Final Decision

5. The Board shall not issue its final decision on the application before such meeting, in C.2 above, unless the applicant fails to submit the required evidence within the period designated by the board, in which case it may issue its final decision any time after the expiration of the period.

6. If an applicant notifies the board in writing at any time that the applicant accepts the conditions and restrictions of approval, the board may issue its final decision without further action under this paragraph.

E. Appeals. Any person who has filed the written notice and whose application to develop workforce housing is denied or is approved with conditions or restrictions which have a substantial adverse effect of the viability of the proposed workforce housing development may appeal the municipal action the superior court under RSA 677:4 or RSA 677:15 seeking permission to develop the proposed workforce housing.

610:3 Incentive System

a. The maximum number of living units permitted shall be determined by the Model Subdivision Regulations Incorporating Soil-based Lot Size Determination; as recorded in Model Subdivision Regulations for Soil Based Lot Size, Volume II, June 1991 prepared by Ad Hoc Committee for Soil Based Lot Size Regulations for the N.H. Department of Environmental Services and Homebuilders Association of N.H. based on Environmental planning for on-site wastewater treatment in New Hampshire, Technical Report, Volume I, June 1991 and amendments if adopted after one public hearing.

b. Developments qualifying for consideration under Section 610:2 shall be granted the following modifications in design specifications:

1) The requirement under 600:5-a(2) of 300 feet distance from town road for 3 to 8 unit townhouse structures shall be reduced to 200 feet.

2) The parcel size of 20 and 30 acres for multi-family structures (section 600:9) shall be reduced to 10 acres

3) The requirement of 50% common land (Section 600:14) shall be reduced to 40% covenanted common land to be maintained as permanent open space (2001).

4) Each building may contain up to eight units.

610:4 Structural Standards

Units designed and designated for the accommodation of workforce housing families shall meet the use provisions of the underlying zoning district.

Manufactured housing and multi-family dwellings are an acceptable structure for workforce housing accommodation provided the units meet local, state, and federal codes and regulations.

Units designated for use by workforce housing families shall be designed to be suitable for family needs. Design considerations shall include the floor area of rooms, the relationship and number of room types, sanitary facilities, cooking facilities, siting of structures and outdoor uses, as well as access and building code provisions.

A determination of the number of bedrooms in workforce housing structures shall be reviewed by the Planning Board prior to approval of the development. In order to assure reasonable family accommodation, the following breakdown of workforce housing units shall be adhered to:

Bedrooms/Unit % of Total

One bedroom/unit 25% or less

Two or three bedrooms/unit 65% or more

Four or more bedrooms/unit 10% or less

The breakdown above may be varied only by requirements of a housing assistance program.

610:5 Applicable Provisions. All developments qualifying for review as workforce housing must meet the provisions of the latest adopted local regulations and ordinances except as they are amended by Section 610 et seq. inclusive.

610:6 General Requirements of Workforce Housing Units

Architectural compatibility. The dwellings qualifying as workforce housing shall be compatible in architectural style and exterior appearance with the market rate dwellings of similar size and type. The workforce housing units must be interspersed with market rate units of the same type.

Phasing. The phasing plan for the development shall provide for the development of workforce housing units concurrently with the market-rate units.

610:7 Affordability

Certification of Income Levels.

1. To ensure that only eligible households purchase/rent the designated affordable housing units, the purchaser/renter of a workforce housing unit must submit copies of their last three years federal income tax returns and written certification, verifying that their annual income level, combined with household assets, does not exceed the maximum level as established by this ordinance.

2. The tax returns and written certification of income and assets must be submitted to the developer of the housing units, or the developer's agent, prior to the transfer of title.

3. A copy of the tax return and written certification of income and assets must be submitted to all parties charged with administering and monitoring this ordinance, within 30 days following the transfer of title.

Assurance of continued affordability.

2. Workforce housing units offered for sale shall require a lien, granted to the Town of Atkinson be placed on each workforce housing unit.

3. The value of the lien shall be equal to the difference between the fair market value of the unit and its reduced affordable sale price, which is indexed according to the qualifying income standards.

4. The municipality’s lien is inflated over time at a rate equal to the Consumer Price Index (CPI).

5. Future maximum resale values shall be calculated as the fair market value minus the CPI adjusted lien value.

6. Subsequent sales are not limited based on income targets, but the combination of maintenance of the municipality’s lien and adherence to this Article’s definition of affordable housing for a period of 30 years.

NOTE: The provisions above are established to be consistent with NHHFA’s Value Retention Model, which is required if the community wishes to have NHHFA administer their inclusionary housing ordinance. Alternate mechanisms of continued affordability could be utilized.

A. Workforce housing rental units shall limit annual rent increases to the percentage increase in the area median income, except to the extent that further increases are made necessary by hardship or other unusual conditions.

B. Documentation of restrictions. Deed restrictions, restrictive covenants, or contractual arrangements related to dwelling units established under this Article must be documented on all plans filed with the town’s Planning Board and with the Registry of Deeds.

610:8. Administration, Compliance, and Monitoring

This Article shall be administered by the Planning Board.

Certificate of Occupancy. No certificate of occupancy shall be issued for a workforce housing unit without written confirmation of the income eligibility of the tenant or buyer of the workforce housing unit and confirmation of the rent or price of the workforce housing unit as documented by an executed lease or purchase and sale agreement.

Ongoing responsibility for monitoring the compliance with resale and rental restrictions on workforce housing units shall be the responsibility of the New Hampshire Housing Finance Authority.

Annual report. The owner of a project containing workforce housing units for rent shall prepare an annual report certifying that the gross rents of affordable units and the household income of tenants of workforce housing units have been maintained in accordance with this Article. Such reports shall be submitted to the New Hampshire Housing Finance Authority or their designee and shall list the contract rent and occupant household incomes of all workforce housing units for the calendar year.

610:9. Relationship to other ordinances and regulations. No portion of this ordinance shall nullify the provisions of any other town ordinance provisions which relate to environmental protection, water supply, sanitary disposal traffic safety, and fire and life safety protection. Where workforce housing applicants propose a development of single family homes or mixed single family and multi-family homes, all provisions of the subdivision and site plan regulations shall apply unless waived by the Planning Board. Where workforce housing applicants propose a development of multi-family units or mixed commercial and multi-family units, the site plan regulations shall apply unless waived by the Planning Board.

610:10. Conflict. If any provision of this ordinance is in conflict with the provisions of

other ordinances, the more restrictive provision shall apply, except for any provision

relating to lot size, setbacks, or density, in which case the provisions of this ordinance

shall apply.

The following four wetlands are designated prime wetlands according to the requirements of RSA 482-A: 15 and Chapter Env-Wt 700 of the DES administrative rules.

Wetland Name	Description
Hall Farm Pond	10+/- acre wetland located south of NH Rte. 111 and north of Hall Farm Road, primarily on Tax Map 16, Lot 9.
Hog Hill Brook	17.5+/- acre wetland which extends southeast of Island Pond Road, located primarily on Tax Map 20, Lot 7 and extending onto Tax Map 16, Lot 64 and Tax Map 21, Lot 1.
Stewart Farm Pond	21+/- acre wetland located due west of Stewart Farm Road and northeast of Village Drive, primarily on Tax Map 12, Lot 1.
Bryant Brook	69+/- acre wetland located on the southern border between Atkinson and Plaistow, primarily on Tax Map 10, Lot 7, and extending onto Tax Map 9, Lot 62-22 and Tax Map 5, Lot 48.

Note: The wetlands listed here were evaluated by procedures described in Method for the Comparative Evaluation of Non-Tidal Wetlands in New Hampshire, published by the New Hampshire Department of Environmental Services (1991). Details of the analysis may be found in Town of Atkinson Prime Wetland Study, Natural Resource Consulting Services (December 2002).

An undisturbed natural buffer area of at least 100 feet in width shall be maintained

between any designated Prime Wetland, as defined in RSA 482-A:15 and adopted by Town Meeting, and any new development, including but not limited to structures, dwellings, septic systems, and roads. Exempted from this requirement are those uses permitted under §410.5, those lots separated from the Prime Wetlands by an existing public road, and variances allowing the construction of additions and extensions to residential buildings which existed prior to the effective date of this section. Nothing herein is intended to prohibit the rebuilding or redevelopment of any portion of a residential lot which has already been improved, or developed and regularly maintained as of the effective date of this section.

Are you in favor of an Amendment to Zoning Ordinance Article VII, Sections 700:1(d) and 700:4: Nonconforming Uses, proposed by the Planning Board which would extend the time to rebuild after a fire or other natural disaster from 1 to 2 years to allow for the time required to deal with settling an insurance claim.

Existing Text:

Nothing in this ordinance shall prevent the reconstruction, repairing, rebuilding, and continued use of any nonconforming building or structure damaged by fire, collapse, explosion, or Acts of God, subsequent to the date of the ordinance, provided that the restoration activity commences within one(1)year of the damaged incident. Such restoration will not require a variance.

New Text

Nothing in this ordinance shall prevent the reconstruction, repairing, rebuilding, and continued use of any nonconforming building or structure damaged by fire, collapse, explosion, or Acts of God, subsequent to the date of the ordinance, provided that the restoration activity commences within two(2) years of the damaged incident. Such restoration will not require a variance.

Existing text:

Any owner or resident of a home damaged due to fire, flood, or

acts of God may place a manufactured or mobile home or trailer

on his/her property during a rebuilding of such residence. A

one-year occupancy permit for residency in the temporary home

or trailer is required and shall be issued by the Building

Inspector after all utility connections are determined to be

in compliance with electrical and sanitary codes. (1987)

New Text

Any owner or resident of a home damaged due to fire, flood, or

acts of God may place a manufactured or mobile home or trailer

on his/her property during a rebuilding of such residence. A

two-year occupancy permit for residency in the temporary home

or trailer is required and shall be issued by the Building

Inspector after all utility connections are determined to be

in compliance with electrical and sanitary codes.