New zoning package nears completion for Rye
Two amendments respond to new State law; Deliberative Session on January 30
Jack Driscoll
If length of consideration were the gauge, the most important warrant articles being put before Rye voters at the Deliberative Session this month are two amendments to the zoning ordinances that deal with workforce housing.
The present town zoning ordinance, specifically Section 202.9, prohibits apartments, but a new state Workforce Law, now in effect, which can be viewed at www.gencourt.state.nh.us/legislation/2008/sb0342.html requires communities to provide "reasonable and realistic opportunities" in the future for workforce housing.
The Rye Planning Board began taking serious steps to comply as far back as September, 2008, and has come up with two approaches. Final versions will be among the warrant articles being readied for the Deliberative Session beginning at 9 a.m. on Saturday, January 30, at the Rye Junior High School (snow date is Feb. 6). However, Planning Board items, already ratified by two public hearings each, can neither be changed or amended in that forum. They will be on the ballot at the March 9 Town Election.
The plans in brief:
- Multi-Family Housing — A multi-family development shall have no more than 6 dwelling units per upland acre and have not more than 8 dwelling units per building, with a limit of 40 dwelling units in total. At least 20% and not more than 51% of the total units shall be for workforce housing.
- Conservation Land Developments (CLDs) — A minimum of 20 acres are required. A CLD shall have a minimum of 10 dwelling units, but not more than 35, of which at least 20% but not more than 40% must be for workforce housing, either owned or renting. A 150-foot street frontage is required.
Full texts of the two warrants are at the bottom of this article. The CLD has been approved by the Planning Board; the Multi-Family provision requires one more public hearing, scheduled for January 12 in the Town Hall courtroom at 7 p.m.
Also on the Deliberative docket will be numerous other warrants, some still in formation, such as the School and Town Budgets, expected to be finalized at meetings on Wednesday, January 13, for the schools and Thursday, January 14, for the town (snow dates for both have been set for January 19).
Unlike last year's Deliberative Session that drew 150 townspeople for a dogs-on-the-beach warrant article (see February story in Rye Reflections), no hot-button issues seem to have emerged so far — January 12 is the last day for petitioned warrant articles — but one item has considerable public interest, according to Selectmen Joe Mills. It has to do with frustration over parking violators near beaches. As a result the Board of Selectmen has decided to increase the fine for parking tickets from $25 to $30, based on a recommendation from Police Chief Kevin Walsh. Late payments will raise the fine to $45. At the December 28 board meeting Mills said there was concern among many that the increase is too modest. He added that before long "we'll jack it up."
Two stumbling blocks slowed completion of the workforce housing warrants. One was an attempt to impose a Multi-Family Workforce Overlay District onto the Rand Lumber Company land near Rye center, and the other was a stipulation in the Multi-Family warrant limiting the number of dwelling units to 40% of a development. The Planning Board eliminated the Rand overlay and raised the workforce percentage to 51% at the December 22 meeting in order to cement board approval.
West Rye on both sides of Route 1 including Ciborowski land on Breakfast Hill.
Briefly, here is how the two issues shook out:
RAND — The property where the 99-year-old lumber company and family home are located was chosen, the board admitted, because of its size. Location was also a factor. When Jim Rand, one of three Rand board members, realized his land would have the Overlay zoning added to it, he raised several concerns while stating he had no plans for development. In explaining to Rand that it was "an opportunity" not a future impediment, board member Mark Galvin told Rand that, if he and his two other trustees didn't want to be included, they could "opt out". No one on the board, nor its counsel, Michael Donovan, disabused Rand of the offer. At the ensuing meeting on Dec. 8 Rand informed the board that the Rand trustees voted to opt out. However, former Planning Board Chairman Bob Brown, not at the earlier meeting, had to break the news: You can ask to opt out, but only the board can decide whether to allow you to do so. Subsequently several board members admitted they had erred in not advising Rand properly, but on Dec. 22 every seat in the Town Hall courtroom was filled, almost entirely by Rand neighbors. Halfway through the meeting, echoing an earlier concern by board member Patty Weathersby, Jaci Grote moved to eliminate the Rand overlay and the rest of the board quickly assented. The courtroom cleared.
WORKFORCE LIMIT — Planning Board member Marty Zivic had convinced the other members that, based on his study of HUD (US Housing & Urban Development) guidelines a 40% limit was needed to maintain quality building standards. Except for Mel Low, the board went along for several months. Meanwhile, strong objections came from representatives of the Ciborowski family, which owns about 100 acres on Breakfast Hill (about 40 acres buildable) and Atty. David Brown, representing John Rickert, owner of the Skate Park and other land on Route 1. At meeting after meeting Atty. Robert Murphy, Mark Ciborowski and company representative Carolyn Beaulieu argued that no developer would take on the development of their property with the 40% limit for economic reasons, especially since their property would work best with the extension of the Route 1 sewer line. Atty. Brown repeatedly called for more "flexibility" in the amendment, including elimination of the 40% stipulation. On December 22 Lisa Henderson, director of the Workforce Housing Coalition in Portsmouth, answered board questions regarding the stipulation and other matters. She said the HUD guidelines didn't particularly pertain for this type of housing, that tax credits and other funding sources, such as Community Development Block Grants, would be necessary and that the proposed limit "doesn't provide 'reasonable and realistic opportunities.'" She cited one source that would reject any development with less than 60% workforce housing, using the present definition of "workforce" as a family of four with an income no higher than $80,000. Mel Low jumped in to support her diplomatic responses: "The people are concerned about future slumlords … but it won't happen in Rye," he said with gusto. "Let's leave the 20% (minimum) and take off the 40%." He also recounted how he had gone on a recent visit with Zivic to visit a 41-unit development, recently constructed under the auspices of The Housing Partnership, in Kennebunk. Low praised the appearance, construction and location between commercial and residential areas (see Rye Crisp for information on the contractor who has been selected to build the senior housing complex at Rye Airfield}. "We've got to provide housing for people starting out," Low said. Later the board agreed on a 51% ceiling. Atty. Brown still had reservations but said the 51% would be "a step in the right direction." Mark Ciborowski, however, was not moved. "We are being penalized for having a large parcel," he said while raising the fairness issue that imposed an unwelcome outlay district over his family's property while removing it for Rand. He said he was concerned about an increased assessment that could make development of his land no longer viable, even though Ciborowski has never opposed inclusion of workforce housing on the land off Breakfast Hill Road.
Lisa Henderson will be holding two public informational sessions at the Rye Public Library to help educate the public on Workforce Housing, according to Kimberly Reed, Rye's Planning Administrator. One session will be held on Tuesday, January 26, from 10 a.m. to noon, and the other during the evening of February 25.
What follows are the texts of the two amendments, called #WF 1 and #WF 4:
RYE PLANNING BOARD
PROPOSED ZONING AMENDMENT # WF 1
Re: Multi-Family Dwelling Overlay District
Amend the Rye Zoning Ordinance to establish a Multi-Family Dwelling Overlay District and regulations governing the development of multi-family dwellings, as follows:
Amend ARTICLE III OVERLAY DISTRICTS to add a new Multi-Family Dwelling Overlay District by adding the following new Section 307.
SECTION 307: MULTI-FAMILY DWELLING DISTRICT
307.1 Purpose.. The purpose of the Multi-Family Dwelling Overlay District is to provide for multi-family housing in appropriate locations in Rye in order to comply with the requirements of RSA 674:59.
307.2 Description of District. The Multi-Family Dwelling Overlay District is comprised of the Route 1/Lafayette Road Commercial District (except land owned by the Rye Conservation Commission); and all land in Rye within 800 feet westerly of the Route 1/Lafayette Road Commercial District. More specifically, the overlay district covers the following parcels as depicted on town tax maps:
All of the following parcels on Tax Map 10: Parcels Nos. 1, 2, 3, 4, 4.1, 5, 6, 7, 8, 9, 10, 11, 14, 15, 15-3, 15-4, 16, 17, 18, 19, 20, 66, 67, 68, 69, 70, 82, 83, 84, 85.
All of the following parcels on Tax Map 14: Parcels Nos. 4, 5, 6, 7, 9, 10, 12, 17, 18.
The portions of the following parcels located within 1100 feet of Lafayette Road: Tax Map 14 – Parcels Nos. 8, 11.
The portions of the following parcels located within 300 feet of Lafayette Road: Tax Map 14 – Parcels Nos. 13, 16; Tax Map 10 – Parcel 13.
307.3 Special Use Permit. Within the Multi-Family Dwelling Overlay District multi-family dwellings and multi-family developments require a Special Use Permit from the planning board pursuant to Section 402 of this ordinance.
Amend the “Official Zoning Map of the Town of Rye” to portray the Multi-Family Dwelling Overlay District as described above in Part I of this amendment.
Add the following definitions to the Appendix of the ordinance:
MULTI-FAMILY DWELLING: A building containing three (3) or more dwelling units.
MULTI-FAMILY DWELLING DEVELOPMENT: A land development consisting of two or more multi-family dwellings located on the same parcel.
IV. Add the following new Section 402 to the ordinance:
SECTION 402 MULTI-FAMILY DWELLINGS & MULTI-FAMILY DEVELOPMENTS.
402.1 Authority. This section is adopted as an Innovative Land Use Control, pursuant to RSA 674:21.
402.2 Special Use Permit Required. . Within the Multi-Family Dwelling Overlay District multi-family dwellings and multi-family developments require a Special Use Permit from the planning board. The planning board may approve a Special Use Permit which complies with the requirements of this section and the requirements of the planning board’s Land Development Regulations for major site developments. Applications for a Special Use Permit shall be submitted to the planning board and reviewed in accordance with the planning board’s procedural requirements for major site developments. The planning board may amend its Land Development Regulations to include special requirements for the review and approval of multi-family dwellings.
402.3 Requirements for Multi-Family Dwellings and Developments..
A. Location.. Multi-family dwellings may be located in the Commercial District.
B. Parcel Size.. The minimum parcel size shall be 2 acres, which may include wetlands.
C. Frontage.. A multi-family dwelling or a multi-family development shall have a minimum contiguous frontage on a town or state road or street of 150 feet.
D. Number of Dwelling Units.. A multi-family dwelling shall not have more than 8 dwelling units. A multi-family development shall not have more than 40 dwelling units. The subdivision of land shall not be used to circumvent the 40 unit limitation.
E. Density. . The density of a multi-family development shall not be greater than six (6) dwelling units per contiguous upland acre located in Rye. No single contiguous area of uplands on a parcel shall have a density greater than six (6) dwelling units per acre. The density is the maximum allowed, and it may be reduced by the planning board if the characteristics of the site; or the configuration of the site plan; or the relationship of the development proposal to its environs so warrant.
F. Workforce Housing.. At least 20% but not more than 51% (each rounded to the next highest whole number) of the dwelling units in a multi-family development shall be workforce housing units (“WF units”). The WF units shall be allocated as nearly as possible to individual dwellings based on the same ratio as exists for the multi-family development. Where the allocation does not work out evenly, the planning board shall have the authority to approve the allocation among dwellings, but the overall 51% limitation on the development shall be controlling.
At least 20% but not more than 51% (each rounded to the next highest whole number) of the dwelling units in a multi-family dwelling on a single lot (i.e. a multi-family dwelling that is not part of a multi-family development) shall be workforce housing units.
G. Density Bonus.. At its discretion, the planning board may approve a density not to exceed eight (8) dwelling units per contiguous uplands acre, provided that at least 30% of the total dwelling units are workforce housing as defined by RSA 674:59. If the bonus is awarded, no single contiguous area of uplands on a parcel shall have a density greater than eight (8) dwelling units per acre.
H. Building Spacing.. All buildings, including parking structures and accessory buildings, shall be separated by at least 25 feet.
I Parking.. Each dwelling unit shall be provided with a one car garage attached or in close proximity to the unit and one other parking space. Site plans shall include adequate parking for visitors, as determined by the planning board
402.4 Determinations Required for Special Use Permit Approval.. Prior to approving a Special Use Permit, the planning board shall determine, by a vote on the record, that the multi-family dwelling or multi-family development meets each of the following standards.
All requirements of Section 402.4 have been met. (This may be a single vote on the record).
The granting of the Special Use Permit will not be detrimental to adjacent property or the neighborhood.
The granting of the Special Use Permit will not be detrimental to the public safety, health or welfare.
The granting of the Special Use Permit will not be contrary to the public interest.
402.5 Growth Management.. The following provisions apply to multi-family dwellings which receive a Special Use Permit pursuant to this section.
A. For multi-family dwellings which may be affected by the limitations of Article IX- Growth Management, the planning board may require a Phasing Plan. Any such phasing plan shall assure proportional build out of workforce housing units.
B. Multi-family dwellings shall be exempt from the Equitable Distribution requirements of Section 901.2, C.
C. If the limitations of Article IX would allow building permits for at least 50% of the dwelling units in a multi-family dwelling but not all of the units, building permits may be issued for all of the units (i.e. for the entire dwelling). However, the occupancy permits for the remaining units above the limitation shall not be issued until building permits become available under Article IX. In such circumstances, the subsequent town wide building permit limitations shall be reduced accordingly.
402.6. Conditions.. In approving a Special Use Permit, the planning board may attach such conditions to its approval as it deems necessary to further the objectives of this section, the zoning ordinance and the public health, safety and general welfare.
402.7 Fees.. The planning board shall charge an application fee for a Special Use Permit for a multi-family dwelling or multi-family development, in addition to its fee for site plan approval and any fees for investigation and review allowed by RSA 676:4, I.(g). Any special fees established by the planning board shall be reduced proportionally for applications which propose workforce housing. (i.e. The fee for a proposal having 20% workforce housing shall be reduced 20%).
402.8 Conflicts.. Where the provisions of this section conflict directly with another requirement of the zoning ordinance or a requirement of the planning board’s Land Development Regulations, the provisions of this section shall govern. Otherwise, all other requirements of the zoning ordinance and the planning board’s Land Development Regulation shall apply to multi-family dwellings and multi-family developments.
401.9 Appeal. Pursuant to RSA 676:5, III., appeals of any planning board decisions made pursuant to this section shall be taken to the superior court, not to the board of adjustment.
RYE PLANNING BOARD
PROPOSED ZONING AMENDMENT # WF 4
Re: Conservation Land Developments (CLD’s)
I. Add the following new Section 403 to the ordinance:
SECTION 403 CONSERVATION LAND DEVELOPMENTS. (CLD’s)
403.1 Authority. This section is adopted as an Innovative Land Use Control, pursuant to RSA 674:21.
403.2 Purposes. The purposes of this section are: (1) to preserve Rye’s rural character by allowing natural land features and/or open spaces to be conserved while providing greater flexibility for the residential development of larger parcels of land; (2) to encourage environmentally sound land planning and create attractive living environments through creative placement of housing; and (3) to encourage the building of well planned housing developments which will blend units of workforce housing into neighborhoods available to all prospective residents of Rye.
403.3 Special Use Permit Required. Conservation Land Developments (CLD’s) require a Special Use Permit from the planning board. The planning board may approve a Special Use Permit for a CLD which complies with the requirements of this section and the requirements of the planning board’s Land Development Regulations. Applications for a Special Use Permit shall be submitted to the planning board and reviewed in accordance with the planning board’s Land Development Regulations. The planning board may amend its Land Development Regulations to include special requirements for the review and approval of CLD’s.
403.4 Requirements for Conservation Land Developments. (CLD’s)
A. Location. CLD’s may be located in the Single Residence and Commercial Districts.
B. Parcel Size. The minimum parcel size for a CLD shall be 20 acres of land located in Rye.
C. Frontage. A CLD shall have a minimum contiguous frontage on a town road or street of 150 feet. Each dwelling within a CLD shall face upon either an existing town road or street or on a private way constructed within the CLD.
D. Number of Dwelling Units.
1. A CLD shall have a minimum of 10 dwelling units, but not more than 35 dwelling units.
2. Yield Plan. The number of dwelling units in a CLD shall be determined by a Yield Plan submitted by the applicant to the planning board for review and approval.
a) The Yield Plan shall portray a build out of the subject parcel which complies with existing zoning and subdivision regulations. The Yield Plan may include wetlands crossings which in the judgment of the planning board might reasonably be expected to be approved by NH DES and the Rye ZBA.
b) The number of dwelling units in a CLD shall not exceed 130% of the number of dwelling units portrayed by the approved Yield Plan.
c) A Yield Plan shall not be approved by the planning board without a hearing and notice to abutters pursuant to RSA 676:4.
d) The planning board shall not accept jurisdiction over a special permit application for a CLD until the Yield Plan has been approved.
e) The approval of a Yield Plan is part of the process for submitting and application for approval of a CLD. Approval of the Yield Plan may be appealed only after a final decision approving the CLD special permit application.
f) The planning board may enact regulations governing the content of Yield Plans and the procedures for review and approval of Yield Plans.
E. Density. No single contiguous area of uplands on a parcel shall have a density greater than four (4) dwelling units per acre. The density is the maximum allowed, and it may be reduced by the planning board if the characteristics of the site; or the configuration of the site plan; or the relationship of the CLD to its environs so warrant.
F. Workforce Housing. At least 20% but not more than 40% of the dwelling units in a CLD shall be workforce housing as defined by RSA 674:58. Workforce housing units may be rental units or ownership units. Workforce housing units shall be located throughout the CLD and not all grouped together, in an integrated pattern acceptable to the planning board. The architectural style of workforce housing dwellings shall be compatible with the architectural style of other dwellings in the CLD. The planning board shall enact such regulations as are necessary to assure that units approved as workforce housing remain available to the workforce.
G. Types of Dwellings. Dwelling types shall be of an architectural type and style deemed by the planning board to be compatible with the neighborhood and may include single family detached dwellings, duplexes and town house style multi-family dwellings. There shall be no more than five (5) dwelling units in a single dwelling. A CLD may have more than one type of dwelling. Site development review (i.e. site plan review) shall be required for all CLD’s including CLD’s composed of single and two family dwellings.
H. Homeowner’s Association. All CLD’s shall have a Homeowner’s Association, unless the CLD is composed entirely of rental housing. The Condominium Declaration and By-Laws shall be approved by the planning board in accordance with the planning board’s Land Development Regulations.
I. Bonus for Excellence in Design. The planning board may award a bonus of three to five dwelling units, total, beyond the number of units allowed by Section 403.4 D, for excellence in design. In awarding the bonus the planning board may consider factors including but not limited to preservation of rural character, provisions for walking trails from the site to community facilities, innovative use of open space; architecture; and “green building”/energy efficient measures. The planning board may enact amendments to its Land Development Regulations relative to the process and criteria by which the bonus may be awarded.
J. Building Spacing. All buildings in a CLD, including parking structures and accessory buildings shall be separated by at least 25 feet.
K. Buffer. The perimeter of all CLD’s shall be a landscaped buffer zone at least 50 feet in width, which may consist in whole or in part of existing natural tree growth.
L. Flexible Planning Provisions.
1. Lot size, frontage. In a CLD the planning board may approve lot sizes and frontages less than the minimum requirements of this ordinance. “Zero Lot Line” developments may be approved.
2. Setbacks. The planning board may approve building setbacks less than the minimum yard size requirements of this ordinance provided the building spacing requirement of Section 403.4, J is met and provided that no dwelling shall be closer than 10 feet to a street or parking area.
M. Parking.
403.5 Open Space Requirements. At least 50 percent of the land area of a CLD shall be preserved in perpetuity by deed restriction or conservation easement as common open space accessible to the residents of the CLD. The open space shall be integrally related to the development of the parcel. Driveways, access roads and parking shall not be located within the open space. Recreational and community facilities such as playgrounds, tennis courts, pathways, ball fields, trails, etc. may be located within the open space.
A. Wetlands. Not more than 25% of the area preserved as open space may be wetlands as defined by this ordinance.
B. Contiguous Open Space. At least 40% of the area preserved as common open space must be contiguous. All pieces of preserved common open space shall have a minimum contiguous area of three (3) acres.
C. Buffer. The buffer required by Section 403.5, K. may be part of the preserved common open space.
D. Common Leachfield. A common leachfield may be part of the common open space if adequately screened, as determined by the planning board, but it may not occupy the buffer required by Section 403.5, K.
E. Ownership of Common Open Space. The common open space may be owned by a Homeowners Association, the Rye Conservation Commission or some other conservation entity acceptable to the Rye Planning Board.
1. The common open space shall be subject to deed restrictions requiring its permanent preservation as open space. Such restrictions shall run with the land.
2. The common open space shall be accessible to all residents of the CLD.
3. The common open space may be preserved by a Conservation Easement granted to the Rye Conservation Commission or some other conservation entity acceptable to the planning board. All easement restrictions shall run with the land.
4. The fee deed or easement deed for the common open space shall be reviewed and approved by town counsel.
F. Reduction of 50% Requirement. The requirement that the minimum preserved common open space be 50% of the CLD parcel size may be reduced to 40% by the planning board in the following circumstances:
1. 10 contiguous acres or more of non-wetlands are preserved as common open space; or
2. The open space abuts other open space owned by the Town of Rye; Rye Conservation Commission (including Conservation Easements); the State of New Hampshire; the Rye School District; or the Rye Water District and the Rye Conservation Commission recommends the reduction; or
3. 75% of the non-wetland areas being preserved are soils where the depth to ledge is greater than two (2) feet but less than four (4) feet; or
4. The open space contributes to the establishment of connected corridor(s) of open space, accessible to the public, throughout the town; or
5. The open space is arranged so that the dwellings of the CLD are not visible from an existing town or state road or street.
403.6 Determinations Required for Special Use Permit Approval. Prior to approving a Special Use Permit for a CLD, the planning board shall determine, by a vote on the record, that the CLD meets each of the following standards.
1. All requirements of Section 403.4 have been met. (This may be a single vote on the record).
2. The granting of the Special Use Permit will not be detrimental to the public safety, health or welfare.
3. There will be no greater diminution of surrounding property values than would be created under any other use or development permitted in the underlying zone.
4. The character of the area will not be adversely affected. In evaluating this requirement the planning board shall consider the following factors:
a) Compatibility of architecture.
b) The capacity of nearby intersections and transportation corridors.
c) The protection of environmentally sensitive areas.
d) The maintenance of viewsheds.
e) The protection of cultural resources.
5. The granting of the permit will not result in undue municipal expense.
403.7 Growth Management. The following provisions apply to CLD.
A. For CLD’s which may be affected by the limitations of Article IX- Growth Management, the planning board may require a Phasing Plan. Any such phasing plan shall assure proportional build out of workforce housing units.
B. CLD’s shall be exempt from the Equitable Distribution requirements of Section 901.2, C.
C. If the limitations of Article IX would allow building permits for at least 50% of the dwelling units in a multi-family dwelling but not all of the units, building permits may be issued for all of the units (i.e. for the entire dwelling). However, the occupancy permits for the remaining units above the limitation shall not be issued until building permits become available under Article IX. In such circumstances, the subsequent town wide building permit limitations shall be reduced accordingly.
403.8. Conditions. In approving a Special Use Permit, the planning board may attach such conditions to its approval as it deems necessary to further the objectives of this section, the zoning ordinance and the public health, safety and general welfare.
403.9 Fees. The planning board shall charge an application fee for a Special Use Permit for a CLD, in addition to its fee for site plan or subdivision approval and any fees for investigation and review allowed by RSA 676:4, I.(g).
403.10 Conflicts. Where the provisions of this section conflict directly with a requirement of the zoning ordinance or a requirement of the planning board’s Land Development Regulations, the provisions of this section shall govern. Otherwise, all other requirements of the zoning ordinance and the planning board’s Land Development Regulation shall apply to a CLD.
403.11 Appeal. Pursuant to RSA 676:5, III., appeals of any planning board decisions made pursuant to this section shall be taken to the superior court, not to the board of adjustment.
II. Add the following definition to the Appendix of definitions in the zoning ordinance.
Zero Lot Line Development: A land development in which there are not lot lines. Dwellings (including single family detached dwellings and two family dwellings) may be owned as condominiums, with all land areas placed in either common ownerships or limited common ownerships.
Yield Plan. A plan or plan set that shows the maximum number of conforming building lots that is reasonably achievable under a conventional subdivision that conforms to the requirements of the Rye Zoning Ordinance and the Rye Planning Board Land Development Regulations.
January, 2010
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