§ VIII-C

Residential open space development

[Added 2-25-1997]

1. Purpose.
- a) Residential Open Space Development, as used herein, is the use of a parcel of land for residential purposes which allows (amended 2-23-2004) smaller lots than would otherwise be permitted in the zoning district, provided that open space on the parcel is set aside for recreation, conservation, agriculture, and/or the preservation of sensitive or valuable features or structures. The overall residential density on the Residential Open Space Development parcel may not exceed that which is otherwise permitted in the zoning district.
- b) Residential Open Space Developments are intended to achieve the following:
  - (1) Maximize open space and encourage the preservation of features and sites that have natural, ecological, cultural, historical, agricultural, scenic, or other significant interest or value;
  - (2) Facilitate the economical and efficient provision of necessary public streets and utilities, community facilities, recreation, and open space;
  - (3) Encourage the development of harmonious, efficient, and convenient living environments and communities.
2. Applicability and procedure.
- a) Residential Open Space Developments (amended 2-23-2004) shall be permitted in residential zoning districts R-20, R-30, R-40, and R-60, pending approval of the Planning Board per the procedures established in this article.
- b) The Planning Board shall not approve a Residential Open Space Development which in its determination will have a detrimental effect upon the natural characteristics of the parcel of land or on the property surrounding the parcel.
- c) No Residential Open Space Development shall be undertaken, nor any lots sold, nor any portion of such development constructed until a subdivision plan for such development has been approved by the Planning Board in accordance with the procedures established by:
  - (1) The Land Development and Subdivision Regulations for Major Land Development and Major Subdivision Review.
    Editor's Note: See Ch. 236, Land Development and Subdivision Regulations.
  - (2) The additional requirements for Residential Open Space Developments established in this article.
- d) Because it is considered in its entirety, a Residential Open Space Development shall be approved and developed as a whole, including all infrastructure and required open space, with phasing, if applicable, as approved by the Planning Board.
3. Number of permitted lots.
- a) The total building lot yield shown on the Conventional Yield Plan, submitted in accordance with Section 4 herein, shall determine the maximum number of lots permitted in the Residential Open Space Development.
- b) In the case of a parcel which is in two (2) separate zoning districts, the maximum number of lots shall be the sum of the numbers which would be allowed in each by the Conventional Yield Plan.
4. Submission requirements. In addition to the submissions required as part of a major subdivision, the following submissions are required:
- a) Accompanying any Master Plan application for a Residential Open Space Development, the applicant shall submit a plan for a viable conventional subdivision (the "Conventional Yield Plan") on the parcel. The Conventional Yield Plan shall identify:
  - (1) The location of all developable land, as defined in Article IV, Section A, Subparagraph 4 of this ordinance, on the parcel; and
  - (2) The placement of housing lots, each of which meet the minimum lot size and frontage requirements of the base zoning district, on the parcel's developable land.
- b) At the time of the Master Plan Application, the applicant shall include an Open Space Use Plan which includes the following information about the parcel proposed for Residential Open Space Development:
  - (1) The location of all areas of undevelopable land on the parcel;
  - (2) The location of all unique features and sensitive natural areas, as defined in Section 7 of this section;
  - (3) The general location and area of all proposed open spaces;
  - (4) The general proposed use(s) of the open space;
  - (5) Existing ground cover of open space areas;
  - (6) Areas of open space from which existing vegetation will be removed or altered and areas which are proposed to be disturbed or otherwise graded, excavated, or altered from their existing natural state;
  - (7) Generalized proposals for the regrading, revegetating, and/or landscaping of proposed disturbed areas;
  - (8) The location of areas proposed to be left in their existing natural states without any disturbance;
  - (9) The location of significant views into and/or out of the site.
- c) At the time of the Preliminary Plan Application, the applicant shall include in the Proposed Conditions Map(s) the following information:
  - (1) The approximate footprints of all houses. For this purpose, all footprints shown must be at least two thousand one hundred square feet (2,100 ft.²) including a house and two (2) car garage, an approved septic system location, and a private well, if applicable.
  - (2) The configuration and placement of houses, lots, and septic systems. This configuration must demonstrate that all of the dimensional requirements for Residential Open Space Developments, as established by Section 5 of this section, will be met by every house and lot.
  - (3) The location of access points to Common Lands, as required by Section 7.d) of this section.
  - (4) More detailed specifications of the Open Space Use Plan required at the time of Master Plan Review, including:
    - (i) The location of all areas of undevelopable land on the parcel;
    - (ii) The location of all unique features and sensitive natural areas, as defined in Section 7 of this section;
    - (iii) The exact location and area of all proposed open spaces;
    - (iv) The proposed use(s) of the open space;
    - (v) The existing ground cover of open space areas;
    - (vi) The location of areas of open space from which existing vegetation will be removed or altered and areas which are proposed to be disturbed or otherwise graded, excavated, or altered from their existing natural state;
    - (vii) Specific proposals for the regrading, revegetating, and/or landscaping of proposed disturbed areas;
    - (viii) The location of areas proposed to be left in their existing natural states without any disturbance; and
    - (ix) The location of significant views into and/or out of the site.

5. Dimensional requirements for housing.

a) The following table prescribes the minimum dimensional requirements for individual lots and for the placement of houses upon lots in a Residential Open Space Development:

Zoning District	Minimum Lot Size (square feet)	Front Setback (feet)	Rear Setback (feet)	Side Setbacks (feet)	Max. % Lot Coverage
R-20	17,000	30'	30'	15'	20%
R-30	17,000	30'	30'	20'	20%
R-40	17,000	30'	30'	20'	20%
R-60	25,000	30'	50'	50'	10%

Note: All setbacks above are the same as the base zoning district in which the parcel is located.

b) Every lot in a Residential Open Space Development shall have a minimum road frontage of thirty-five feet (35').
c) The maximum lot coverage percentage shall be the lesser of the above and the requirements of overlay districts as provided per Article III of this ordinance.
d) Any portion of a lot that is less than thirty-five feet (35') in width or depth shall not be counted toward the minimum lot size or setback requirements. This provision shall not apply to corners of lots.

6. Development design and layout. The design and layout of a Residential Open Space Development shall follow the provisions of the Land Development and Subdivision Regulations, Article X., Design and Improvement Standards, with the additional requirements set forth in this section. In cases of conflict, the requirements in this section shall supersede the requirements of the Land Development and Subdivision Regulations. The Planning Board shall determine on a case-by-case basis whether the design and layout of a proposed Residential Open Space Development are acceptable according to the provisions herein and per the Land Development and Subdivision Regulations.
- a) Protection of unique features and sensitive natural areas.
  The lots and dwelling units shall be sized and arranged in a way which maximizes adherence to the Site Design Criteria for Preservation of Unique and Natural Features, Land Development and Subdivision Regulations Article X, Section C, Subparagraph 2. Said subparagraph sets forth criteria by which the Planning Board shall judge whether or not a proposed development will be able "to preserve the natural features of the site, to avoid areas of environmental sensitivity, and to minimize impacts and alteration of natural features, historic and cultural resources, and areas of scenic value which contribute to the Town."
  Residential Open Space Developments will limit housing lots to a smaller portion of the parcel than would a conventional development. They therefore have a greater opportunity to site those lots away from the following sensitive areas:
  - (1) Unique and/or fragile areas, including freshwater wetlands and coastal features;
  - (2) Significant trees or stands of trees, or other vegetative species that are rare to the area or are of particular horticultural or landscape value;
  - (3) Lands in the flood plain, as defined in Article II of the Land Development and Subdivision Regulations;
  - (4) Steep slopes in excess of twenty percent (20%) grade as measured over a ten-foot (10') interval unless appropriate engineering measures concerning slope stability, erosion, and resident safety are taken;
  - (5) Habitats of endangered wildlife, as identified on applicable federal or state lists;
  - (6) Historically significant structures and sites, as listed on federal or state lists of historic places;
  - (7) Agricultural lands;
  - (8) Timber production lands;
  - (9) Vegetated and/or forested buffers protecting sensitive environmental features.
- b) Perimeter development. In no case shall the minimum distance between any house in a Residential Open Space Development and the nearest lot line of an adjacent parcel outside the subdivision be less than the number of feet required by the zoning setback plus an additional fifty feet (50').
- c) Street and open space parking requirements.
  - (1) All streets in a Residential Open Space Development which are intended or required for dedication to the Town of Portsmouth shall be improved in accordance with the requirements and specifications contained in the Land Development and Subdivision Regulations.
    Editor's Note: See Ch. 236, Land Development and Subdivision Regulations.
  - (2) Where development design creates streets which are likely never to become through roads, the Planning Board may allow the construction of narrower pavement widths than the minimum of twenty-eight feet (28') established by the Land Development and Subdivision Regulations Article X, Section D, Subparagraph 8. The Planning Board may vary road dimensional requirements from those established by the Land Development and Subdivision Regulations Article X, Section D. All streets within a Residential Open Space Development shall maintain a right-of-way width of no less than fifty feet (50'). Where narrower streets are permitted, the Planning Board may require sidewalks on one (1) or both sides of the street.
  - (3) Common parking spaces on Common Lands, as defined in Section 7, shall not be closer than twenty-five feet (25') from all property lines or street right-of-way lines. The Planning Board may require the provision of landscape materials, screen planting, fences, or other materials designed to provide a buffer between parking areas and adjacent streets or property.
Editor's Note: See Ch. 236, Land Development and Subdivision Regulations.
7. Common lands and open space.
- a) Definitions.
  - (1) "Common Lands" shall be defined as all land on the parcel that is not included in building lots, paved roadway, and road rights of way. All Common Lands are subject to the provisions herein.
  - (2) "Open Space" shall be defined as that portion of the Common Lands that meets the provisions of Developable Land Area, as defined in Article IV, Section A of this ordinance.
- b) Minimum open space size requirements.
  - (1) In a Residential Open Space Development, a minimum percentage of the parcel's developable land must be open space. The minimum percentage shall vary by zone, according to the following table:
    Zone % of Developable Land which must be Open Space
    R-20 10%
    R-30 25%
    R-40 35%
    R-60 45%
    - (i) Where a parcel is located in two (2) or more zoning districts, the overall percent open space required shall be based on the percent of the parcel located in each zone. The actual open space provided may be located in one (1) or more of the zones.
  - (2) Total open space in a Residential Open Space Development shall not be less than one (1) acre.
- c) Open space land qualifications.
  - (1) Undevelopable land, per the definition of "Developable Land Area" in Article IV, Section A of this ordinance, may not count toward the minimum open space size requirement.
  - (2) Land which has been deemed by the Planning Board to be disturbed from its natural state prior to final approval of the development as a result of soil-removal operations, harvesting of trees or other natural features or refuse disposal or other causes shall not count toward the minimum open space size requirement unless and until the land is restored to a condition which the Planning Board determines to be reasonable and appropriate to effect the purposes of this article. The Planning Board may grant final approval for a Residential Open Space Development subject to such restoration of the disturbed land, provided an appropriate performance bond is posted.
  - (3) Areas proposed to fulfill the minimum open space size requirement shall not be excavated or regraded nor shall any disturbance be made to the natural contours of the land nor shall any existing natural vegetation be removed or any natural or man-made features altered in any way except as is needed for recreation or conservation purposes or for drainage facilities as specifically authorized by the Planning Board.
- d) Size and shape of open space. Open space shall be designed to provide maximum preservation and enhancement of natural areas. To the maximum extent possible, open space shall be preserved in compact shapes, and not as mere extensions of building lots.
  - (1) To the maximum extent reasonably possible, open space parcels shall be contiguous with protected undeveloped land on adjacent parcels, in order to make the open space part of a larger unified open space system.
  - (2) To the maximum extent reasonably possible, open space parcels shall be located so as to be convenient to the dwelling units they are intended to serve. However, because of noise generated by some permitted uses, open space parcels shall be sited with sensitivity to surrounding development.
  - (3) To the maximum extent reasonably possible, each group of house lots in a Residential Open Space Development shall be adjacent and accessible to the open space proportional to the number of houses in the development. (For example, if there are one hundred (100) houses in the development and each of four (4) groups of lots contains twenty-five (25) houses, about twenty-five percent (25%) of the open space shall be adjacent to each group.)
  - (4) A minimal number of narrow strips of not less than twenty-five feet (25') in width of Common Lands shall be permitted only as:
    - (i) Access corridors between residences, streets, and larger Common Lands parcels.
    - (ii) Drainage areas.
    - (iii) Buffers.
  - (5) Reasonable access to open space shall be made readily available to residents of the Residential Open Space Development.
  - (6) The area of each parcel of open space designed for a permitted use or community facility shall be of such minimum size, dimensions, and characteristics as to be functionally usable for that use or facility.
- e) Permitted common lands uses.
  - (1) Permitted Common Lands uses are chosen because they preserve the land in its current state, which is consistent with the Town's rural character. Only the following uses of the Common Lands shall be permitted, and use thereof shall be limited to the residents of the Residential Open Space Development.
    - (i) Recreation.
    - (ii) Conservation.
    - (iii) Wildlife Management.
    - (iv) Agriculture, as permitted in Article V of this ordinance.
    - (v) Forest Management.
    - (vi) Utility lines, as a special use permit.
    - (vii) Drainage facilities and drainage easements.
  - (2) Common Lands may not be used for commercial or revenue-enhancing purposes, with the exception of agriculture and outdoor golf courses, but not including miniature golf or driving ranges, which may be provided for by permanent easement or long-term lease.
  - (3) Any change of the proposed Common Lands uses must be approved by the Zoning Board of Review as a Special Use Permit.
- f) Improvements to common lands.
  - (1) As a general principle, Common Lands not developed for community facilities should be left in their natural state.
  - (2) The Planning Board may require a developer to make improvements such as removing dead or diseased trees, planting or thinning of trees or other vegetation, and grading or seeding.
  - (3) The Planning Board may require special provisions for the maintenance of Common Land, private improvements, drainage systems, and utilities, including requirements for security, including a maintenance bond, as provided in Article X of the Land Development and Subdivision Regulations.
    Editor's Note: See Ch. 236, Land Development and Subdivision Regulations.
  - (4) The Planning Board may require the installation of any of the community facilities permitted in Subparagraph g of this section.
  - (5) The Planning Board may allow improvements for agricultural uses, provided that ecologically sensitive land, drainage facilities, and other public improvements remain undisturbed and protected.
- g) Procedures for approval of community facilities in common lands.
  - (1) Community facilities to be constructed by the applicant shall be submitted as part of the overall Residential Open Space Development plan.
  - (2) The construction of any community facilities subsequent to the approval of a Residential Open Space Development shall be considered as a Special Use Permit and reviewed by the Planning Board per the provisions of Article XI, Development Plan Review, of this ordinance. All community facilities shall be a part of the final submission plans approved by the Planning Board.
  - (3) Subsequent to final plan approval but prior to the conveyance of at least fifty-one percent (51%) of the lots, community facilities may only be permitted after the granting of a Special Use Permit per the provisions of Articles VII and XI of this ordinance.
  - (4) Following the conveyance of at least fifty-one percent (51%) of the lots, community facilities may only be permitted with the permission of the homeowners' association membership and after the granting of a Special Use Permit per the provisions of Articles VII and XI of this ordinance.
- h) Design criteria for community facilities in common lands.
  - (1) The Planning Board may permit the following types of community facilities to be developed in the Common Lands, consistent with the requirements of this ordinance:
    - (i) Community Structures may include but are not limited to community meeting centers, community art centers, and amphitheaters.
    - (ii) Active Recreational Community Facilities provide recreational or community group opportunities for Residential Open Space Development residents. They may include but are not limited to sports facilities, playgrounds, equestrian centers, pools, beaches, tennis courts, playing fields, and the minimum amount of parking required for these facilities.
    - (iii) Passive Recreational Community Facilities promote human enjoyment of the natural environment. They may include but are not limited to nature parks, nature centers, nature trails, hiking trails, equestrian trails, wildlife observation towers or blinds, and educational displays.
    - (iv) Structures Accessory to Conservation to promote environmental preservation and enhancement. They may include but are not limited to nature preserves, wildlife habitat areas, wildlife nesting platforms or boxes, and wildlife feeders.
    - (v) Structures Accessory to Agriculture may include but are not limited to barns, greenhouses, and silos.
    - (vi) Structures Accessory to Golf Courses may include necessary maintenance facilities for use exclusively on the course and a clubhouse, provided it does not serve food or beverage and is used exclusively for golfers.
  - (2) In addition to the criteria for the granting of Special Use Permits as established by Article VII, Section A of this ordinance, the Planning Board shall consider the following:
    - (i) Any community facilities which are permitted in the Common Lands must conserve and enhance the natural features of the Common Lands having regarded their topography and unimproved condition.
    - (ii) Community facilities shall be designed and located so as to be easily accessible and visible from public rights-of-way. All community facilities shall be accessible to the units in the Residential Open Space Development so that all development residents have ready access to, and use of, such facilities.
    - (iii) In total, community facilities which create impervious surfaces shall not exceed twenty percent (20%) coverage of the open space.
    - (iv) Community facilities shall be located at least one hundred feet (100') from the nearest house.
    - (v) Dimensional requirements for community facilities shall be the same as those established by this ordinance for the base zoning district of the Residential Open Space Development.
- i) Deed restrictions. Any lands dedicated for Common Lands shall contain appropriate covenants and deed restrictions approved by the Planning Board in consultation with the Town Solicitor and duly recorded in the land evidence records, ensuring that:
  - (1) The Common Lands will not be further subdivided or developed in the future;
  - (2) The Common Lands will remain open space;
  - (3) Appropriate provisions will be made for the maintenance of the Common Land; and
  - (4) Common Lands shall not be used for a commercial enterprise, with the exception of agriculture and outdoor golf courses, but not including miniature golf or driving ranges, as provided herein.
8. Common lands ownership. Ownership of the Common Lands shall be vested in a legally constituted organization which shall be responsible for its use and maintenance. The Planning Board shall have the right to approve, modify, or reject the proposed form of ownership if, in its opinion, it does not adequately provide for controls over use and maintenance. As a minimum, the following standards of ownership and management shall be met:
- a) The Common Lands shall be separate and distinct lot(s) owned in common by all the landowners in the development. The deed to each house lot shall include a fractional interest in the Common Lands in an amount proportional to the number of house lots in the development. The deed shall also include all covenants, restrictions, or easements which shall be imposed upon the use, management, or maintenance of the Common Lands in order to provide for the necessary control and requisite upkeep of the Common Lands, including requirements for liability insurance.
- b) The developer shall provide for and establish a homeowners' association which shall be responsible for the use, care, and maintenance of all Common Lands and any improvements thereon. Unless otherwise allowed by the Planning Board, membership in the homeowners' association shall be mandatory for all landowners within the Residential Open Space Development. The homeowners' association bylaws shall entitle the owner of each lot equal representation.
- c) For the purposes herein, the applicant or his successors or assigns shall have the same rights and responsibilities as the owners of individual lots.
- d) The Planning Board may permit the ownership of Common Lands by a public, quasi-public, or private non-profit organization qualified to maintain such Common Lands. In the event of the failure of a non-profit to maintain the Common Lands, ownership of the Common Lands shall revert to the homeowners' association.
9. Required certificates or documents. An applicant for a final plan approval of a Residential Open Space Development must submit, in addition to the materials required by Section 4 of this section and Article X of the Land Development and Subdivision Regulations, the following certificates or documents for approval by the Planning Board:
- a) A development agreement to be executed between the developer and the Town, to be recorded in the Land Evidence Records, stating:
  - (1) That the owner or developer will construct the development and install improvements both public and private in accordance with the approved plan. Surety shall be posted to guarantee completion and compliance.
  - (2) That in the event of a failure of the applicant, lot owners, successors, or assigns to maintain any Common Lands, community facilities, landscaping features, or other required improvements, the Town may enter the development to perform the necessary maintenance work and assess the cost, including attorney's fees, to the applicant, lot owners, successors, or assigns.
  - (3) That individual lot deeds will include an undivided proportional interest in the Common Lands; that the obligation for maintenance of Common Lands and improvements thereto shall be imposed upon the owners of the lots in the development; and that the Town will not be requested to accept or maintain any portion of Common Lands or improvements thereto.
  - (4) That every owner of a lot within such development shall be deemed a member of the homeowners' association.
  - (5) That the restrictions set forth in this agreement shall run with the property and be binding upon the applicant, lot owners, heirs, successors, assigns or other receivers of the development and shall constitute a lien on the property in the development.
  - (6) Any other conditions required by the Planning Board.
  - (7) That uses of the Common Lands shall be only those permitted by Section 7.e) of this section.
  - (8) That the development will meet all the requirements of this article.
- b) A perpetual easement and covenant to the Town over the Common Lands, prohibiting further development and imposing use restrictions upon the Common Lands.
- c) A sample deed which includes or refers to a recorded document which stipulates all covenants, restrictions, or easements which shall be imposed upon the use, management, or maintenance of the Common Lands in order to provide for the necessary control and requisite upkeep of the Common Land, including requirements for liability insurance, and which states that each housing lot shall include an undivided proportional interest in the Common Lands. If not owned by the lot owners, documents specifying ownership of the Common Lands.
- d) A declaration and a legal description of easements, deed restrictions and/or covenants running with the land in the development, and an instrument conveying any easements required as a condition of approval, which shall be recorded in the Land Evidence Records.
- e) Copies of any proposed management policies.
- f) All other procedural requirements or supporting material set forth in the Land Development and Subdivision Regulations not heretofore mentioned in this article, which are applicable to any Residential Open Space Development.
  Editor's Note: See Ch. 236, Land Development and Subdivision Regulations.
- g) The following disclosures to buyers are required and must be approved by the Planning Board prior to final approval:
  - (1) A sample purchase and sale agreement which shall be used for the purchase of individual lots and dwellings. Such agreement shall include in conspicuous type the following: That the property is part of a Residential Open Space Development subject to Article VIII of the Portsmouth Zoning Ordinance; that the purchaser and subsequent owners of the property are subject to the requirements therein contained, as well as any conditions set by the Planning Board, which shall be enumerated; that the purchaser and subsequent owners of the property shall be required to be a member of the Homeowners' Association, shall be subject to the rules and regulations of such association, and shall be liable for any applicable assessment made by or against such association. The purchase and sale agreement shall further contain a statement by the seller that purchaser has been provided with a copy of the rules and regulations of the Homeowners' Association, copies of any management policies, copies of restrictions or covenants running with the land in the development, and a prospectus which shall be a summarization in layman's terms of the information contained in other documents.
  - (2) Copies of the documents creating the Homeowners' Association, the bylaws and the rules and regulations of the Homeowners' Association, any management policies or proposed management policies, copies of any restrictions or covenants running with the land in the development and a prospectus which shall be a summarization in layman's terms of the information contained in filed documents.
Editor's Note: See Ch. 236, Land Development and Subdivision Regulations.

	Zone	% of Developable Land which must be Open Space
	R-20	10%
	R-30	25%
	R-40	35%
	R-60	45%