THE DURHAM ZONING ORDINANCE
Prospective amendments
*Updated. For Planning Board discussion on June 28, 2017*
The Planning Board has discussed various prospective changes to the Zoning Ordinance for a number of years. The draft has been modified several times. Once the board accepts the changes it will schedule a public hearing on the document and then forward it to the Town Council for consideration. There are still a number of items to address and clean up as noted. Several recent zoning amendments are not included in this document. No changes to those amendments are proposed now, but some renumbering will be needed below due to the incorporation of those amendments.
Proposed additions to the present ordinance are shown like this.
Proposed deletions to the present ordinance are shown like this.
Directions for other changes are shown like this.
[Note. Commentary only is shown like this.]
General Changes to be made throughout the ordinance:
Eliminate superfluous vertical spaces,throughout this ordinance,underneath headings for sections and subsections, as appropriate.
Add spaces between paragraphs and sections where they are missing, throughout this ordinance, as appropriate.
Make minor formatting adjustments that have no substantive effect to provide consistency.
Make the following changes throughout the ordinance:
Change “multiunit” to “multi-unit”
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ARTICLE I
GENERAL PROVISIONS
175-1.Title.
This chapter shall be known and may be cited as the "Zoning Ordinance of the Town of Durham, New Hampshire."
175-2.Authority.
This chapter is adopted pursuant to the authority granted by RSA 674:16, as amended, which provides for the local legislative body to adopt or amend a Zoning Ordinance under the Ordinance Enactment Procedure of RSA 675:2-5.
175-3.Purpose.
The provisions of this chapter are intended to regulate the use of land for the purpose of protecting the public health, safety, convenience and general welfare of the residents of the Town of Durham, in accordance with RSA 674:17. This chapter is adopted in accordance with and in order to implement the Master Plan and other policies designed to promote the orderly growth of the Town of Durham. Among other purposes, this chapter is specifically adopted to preserve air and water quality; to conserve open space and agricultural resources; to encourage the installation and use of renewable energy systems and protect access to renewable energy sources; to protect natural and scenic resources from degradation; to provide for recreational needs; to protect life and property from flooding and other natural hazards; to preserve historic sites and structures; and to ensure that development is commensurate with the character and physical limitations of the land. Further, this chapter is designed to ensure that the timing, location and nature of new development takes into account the immediate and long-range financial impacts of proposed uses and enhances the achievement of the town's economic development goals.
175-4.Applicability.
A.No land shall be used and no building or structure shall be erected, structurally altered, enlarged, moved, or used unless such use or activity is in conformity with the provisions of this chapter, except as provided in Section 175-5.
B.No building permit shall be issued for any proposed use, construction or activity which is not in compliance with the Zoning Ordinance of the Town of Durham.
175-5.Applicability to Governmental Uses including the University of New Hampshire.
The provisions of this chapter shall be advisory with respect to governmental uses as identified by RSA 674:54 including the University of New Hampshire (UNH) except as provided in C. below.
- Written Notification. The state agency, county, municipal agency, university, school district or other governmental entity identified in RSA 674:54 shall provide the Planning Board with written notification of any use of its property or facilities that constitutes a substantial change in use or a substantial new use. This notification shall be provided to the Town Planner at least sixty (60) days prior to the start of construction and shall contain plans, specifications, and explanations of the proposed use and an assessment of the potential impacts of the use on the community. The notification for any project involving the University of New Hampshire shall be in accordance with the adopted “Process for Coordination and Communication” between the University and the Town. The Planning Board may hold a public hearing on the proposed use. If a hearing is held, the hearing shall be held within thirty (30) days of the receipt of the written notification and at least two (2) weeks after publication of a notice thereof in a paper of general circulation in the town. The purpose of such hearing shall be to bring to light possible problems of traffic circulation, parking, provision of utilities, the protection of persons and property or any other problems affecting the town or the neighborhood. A representative of the governmental entity or UNH shall be present at the hearing to present the plans, specifications, and construction schedule, and to provide explanations. The Planning Board may issue nonbinding written comments relative to conformity or nonconformity of the proposal with normally applicable land use regulations to the government entity or university within 30 days after the hearing, together with any recommendations for minimizing any adverse impacts of the project on the community.
B.Any use of land or buildings for governmental or university purposes that is located on land or in buildings or structures that are not owned by the governmental entity or university but for which the entity acquires only the right to use, whether by rental, lease or other beneficial interest, may not be used for any other purpose not otherwise permitted by this chapter.
C.Any use, construction, or development of land, buildings, or other facilities on governmentally owned or occupied land including UNH, that is not used for a governmental or university use as defined in RSA 674:54 shall comply with the provisions of this chapter including, but not limited to, the requirements for site plan review and the issuance of building and other permits.
Nothing herein shall prevent the condemnation of land or buildings for municipal purposes by the Town of Durham or for public or institutional use by any agency, department, institution or public corporation of the State of New Hampshire or of the United States.
175-5.1 Minimum Requirements. The provisions of this chapter shall be construed to be the minimum requirements for the granting of any pertinent Town approvals. Compliance with these requirements, however, is not necessarily deemed sufficient for the granting of these approvals. All applicants must comply with all other applicable statutes, ordinances, regulations, rules, standards, and policies of the Town of Durham and of other governmental authorities. In particular, all applicants must comply with the Durham Site Plan Regulations and the Durham Subdivision Regulations which include specific requirements and provide for the reasonable judgment of the Planning Board in reviewing applications.
ARTICLE II
DEFINITIONS
175-6.Meaning of Words.
Unless otherwise expressly stated, the following terms shall, for the purpose of this chapter, have the meanings indicated in this section. Words used in the present tense include the future. The singular number includes the plural, and the plural the singular. Where terms are not defined in this section, they shall have their ordinary accepted meanings or such as the context may imply. The words "shall" and “must” are mandatory, the word "may" is permissive, and the word “should” indicates a preferred or encouraged, but not necessarily a required course of action.
175-7.Definitions.
A.As used in this chapter, the following terms shall have the meanings indicated:. The inclusion of a particular use in this section does not indicate that the use is allowed anywhere in the town of Durham; some terms are included for general reference only.
ACCESSORY AGRICULTURAL ACTIVITIES – Non-commercialNoncommercialagricultural activities such as gardening and the raising of flowers and ornamental plants conducted by the occupants of a residence primarily for their own use or consumption. These activities shall not include any use that is defined as animal husbandry, commercial agriculture, or the keepings of pigs, chickens, or fowl. The excess products of this activity may be sold so long as the volume of sales does not result in excessive noise, traffic, or other adverse impacts on the neighborhood or constitute a commercial operation that requires the filing of a Schedule F as part of the owner’s or operator’s federal income tax return. (See Section 175-109(A))
ACCESSORY SHED – A small shed for the storage of items in conjunction with a residential use. (See Section 175-109(O))
ACCESSORY STRUCTURE – A structure detached from a principal building on the same lot and incidental and subordinate to the principal building.
ACCESSORY STRUCTURE –A structure that is detached from the principal building; situated on the same lot as the principal building and use; incidental, subordinate, and related to the principle building and use; and customarily found as(or reasonably considered to be) an accessoryto the type of principal building and use that is situatedof the property.
ACCESSORY USE – A use of land or a building or a portion thereof which is incidental and subordinate to the principal use of the land or building and located on the same lot with such principal use.
ACCESSORY USE – A use of land or a building or structure which is situated on the same lot as the principal use; incidental, subordinate, and related to the principle use; and customarily found as (or reasonably considered to be) an accessory to the type of use that is situatedof the property.
ACRE – A measurement of area equal to forty three thousand five hundred sixty (43,560) square feet.
ADAPTIVE REUSE – The userepurposingf an existing building for a new type of use in which the exterior appearance and the structural and architectural elements of the building remain essentially unchanged except for minor renovations needed to provide access or to comply with code requirements.
ADULT DAY CARE FACILITY – A nonresidential facility for the care of adults.
AGRICULTURAL BUILDING, EXISTING – Any building or structure constructed prior to the adoption of this chapter and designed, used or adapted for agricultural purposes. Section 175-109(J))
AIRPORT, COMMERCIAL – A facility used for landings and takeoffs by commercial and private fixed wing or rotary wing aircraft. Such a facility typically includes aircraft parking and service facilities.
AIRPORT, PRIVATE – A tract of land used for landings and takeoffs by fixed winged or rotary wing aircraft belonging to the owner or lessor of the land or to a third party using the tract of land with the permission of the owner or lessor of the land.
ALL TERRAIN VEHICLE – Any motor-driven vehicle which is designed or adapted for travel over surfaces other than maintained roads with one or more tires designed to hold not more than 10 pounds per square inch of air pressure, having capacity for passengers or other payloads, not to exceed 1,000 pounds net vehicle weight, and not to exceed 50 inches in width.
ALL TERRAIN VEHICLE/OFF HIGHWAY RECREATIONAL VEHICLE FACILITY – A facility or site where people who do not own the site or reside on the site are allowed to operate all terrain vehicles or off highway recreational vehicles with or without compensation. A trail that crosses a parcel and that is used by all terrain vehicle or off highway recreational vehicle operators that do not own or reside on the parcel is an all terrain vehicle/off highway recreational vehicle facility.
ALLOWED USE. Any use that is legally permissible on a given site under this zoning ordinance (subject to all other approvals which may be required such as site plan approval, issuance of a building permit, granting of state permits, etc.), including permitted uses, conditional uses when a conditional use is approved, uses allowed by special exception when a special exception is granted, uses that have been approved through a variance, and legal nonconforming uses which are grandfathered or vested.
ALTERATION – A change or rearrangement in the structural parts of a building or structure or in the means of egress or an enlargement, whether by an extension on a side or by an increase in height, or the moving from one location or position to another.
ANIMAL FEEDLOT – A commercial agricultural establishment consisting of confined feeding areas and related structures used for the finishing of livestock in accordance with USDA regulations. Any activity that requires the filing of a Schedule F as part of the owner’s or operator’s federal income tax return shall constitute a commercial operation.
ANIMAL HUSBANDRY - LIVESTOCK, ACCESSORY – The breeding and/or raising of livestock, not including poultry (as defined herein), for noncommercial purposes in conjunction with a residence. (See Section 175-109(B))
ANIMAL HUSBANDRY - POULTRY, ACCESSORY – The breeding and/or raising of poultry for noncommercial purposes in conjunction with a residence. (See Section 175-109(C))
ANIMAL HUSBANDRY, COMMERCIAL – The commercial breeding and/or raising of livestock. Animal husbandry does not include any activity that is defined as a kennel, stable, animal feed lot, or the keeping of pigs, chickens, and fowl for commercial purposes. Any activity that requires the filing of a Schedule F as part of the owner’s or operator’s federal income tax return shall constitute a commercial operation.
APARTMENT – See "dwelling unit."
AQUACULTURE – The commercial growing or propagation of harvestable freshwater, estuarine, or marine plant or animal species.
AQUIFER – 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. Aquifer includes both bedrock aquifers and stratified drift aquifers.
AQUIFER, BEDROCK – Bedrock comprised of a high concentration of interconnected fractures, fissures, or cracks that is able to produce a high quantity of water.
AQUIFER, STRATIFIED DRIFT – A geologic formation of predominantly well-sorted sediments deposited by or in bodies of glacial melt water, including gravel, sand, silt or clay, that contains sufficient saturated permeable materials to yield significant quantities of water to wells.
AQUIFER PROTECTION DISTRICT – The recharge area of designated aquifers. The "Aquifer Protection District" is shown on an overlay to the Official Zoning Map of the Town and is described in detail in Section 175-85 of this Ordinance.
AQUIFER RECHARGE AREA – The area in which water is absorbed that eventually reaches the zone of saturation in one or more aquifers.
AREA OF SPECIAL FLOOD HAZARD – A designated A0, AH, or V0 zone on the Flood Insurance Rate Map (FIRM) with a one-(1) percent or greater annual possibility of flooding to an average depth of one (1) to three (3) feet where a clearly defined channel does not exist, where the path of flooding is unpredictable and where velocity flow may be evident. Such flooding is characterized by ponding or sheet-flow.
ART CENTER – A facility for the display and/or sale of objects of art, the teaching of art, or the creation of works of art.
[I need to review this definition and Gallery per the board’s discussion.]
AUTOMOBILE CAR WASH – A facility equipped for washing cars manually or automatically.
AUTOMOBILEAUTOMOTIVESERVICE STATION – Any building or premises used primarily for the retail sale of gasoline and lubricants but which may also provide for the incidental servicing of motor vehicles and small engine repair, including grease racks, tire repairs, battery charging, hand-washing of automobiles and the sale of merchandise and supplies related to the servicing of motor vehicles, but excluding body and fender work, engine overhauling, painting, storage of autos not in operating condition or other work involving noise, fumes, glare or smoke.
BASAL AREA – The cross sectional area of a tree measured at a height of 4-1/2 feet above the ground, usually expressed in square feet per acre for a stand of trees. "Total basal area" is the sum of the "basal areas" of all vegetation in the zone.
BASE FLOOD – The flood level having a one-percent possibility of being equaled or exceeded in any given year.
BASEMENT – Any area of a building having its floor subgrade on all sides. That portion of a building that is fully below existing grade or partly below and up to two feet above existing grade.
[The board may want to discuss this further.]
BED AND BREAKFAST – An owner-occupied single-family residence containing, in addition to living accommodations for the owner and the owner’s family, not more than four (4) individual sleeping rooms, without cooking facilities, for the purpose of providing to the general public, for compensation, lodging, bathroom facilities and breakfast to overnight patrons only and for no longer than two (2) consecutive weeks.
BEST MANAGEMENT PRACTICES FOR AGRICULTURE (BMPs) – Refers to those practices and procedures described in the Manual of Best Management Practices (BMPs) for Agriculture in New Hampshire, distributed and periodically updated by the New Hampshire Department of Agriculture, Markets, and Food, as revised
[Reference -
BOARDINGHOUSE – An owner-occupied residential building principally used, designed or adapted to provide living accommodations for not more than ten (10) occupants and having common cooking and dining facilities. (Also, see “Roominghouse.”)
BOATYARD/BOAT CLUB – Waterfront facilities for recreational boating, launching facilities and other water-related activities, but excluding the sale of products and accessories associated with boating needs.
BOG – A wetland distinguished by stunted evergreen trees and shrubs, peat deposits, poor drainage, and/or highly acidic soil and/or water conditions.
BUFFERING – The use of landscaping (other than grass on flat terrain), or the use of landscaping along with berms, walls or decorative fences that at least partially and periodically obstructs the view.
BUILDABLE AREA – That portion of a building site, exclusive of the required yard areas, on which a structure or building improvement may be erected.
BUILDING – Any structure designed or intended for the support, enclosure, shelter or protection of persons, domestic animals, chattels or property. For purposes of determining exterior measurements or footprint in order to locate the setback line, "building" shall include all attached structures such as open or closed porches, carports, garages, balconies, stairways and other similar structures.