Members present: Paul Currier, Chair; Jon Warzocha, Vice-Chair; Nancy Teach; Doug Phelps; Art Urie; Duncan Coolidge, ex-officio

Also present for duration of appropriate items: Dave Powers, Zoning Administrator; Susan Hollidge McFarland; Lewis M. Allison; Julie Cooper; Sooze and John Hodgson; Nan and Don Kaplan; Jim Danforth; John Guiheen; Tina Cotton; Bob Ward; Jeffrey Bushey; Jeffrey Newcomb; Dan Coolidge; Dan Newton; Andrew Guptill; Brendan Newton; Todd Goings; Debbie Hatter; Toby Locke; Ricker Miller; Mark Cowdrey; Chris Caron; and Andy Prokosch

Zoning Administrator

Inquiry from persons interested in purchasing the East Andover store regarding procedures they might need to go through with the Planning Board. Person inquiring about property on the Plains.

Public Hearing on Proposed Zoning Ordinance amendments

Currier opened the public hearing at 7:30 PM and provided a brief presentation of background of the proposed zoning amendments, including:

The purposes of zoning. To put compatible uses together on the landscape and to separate uses which are not compatible with each other physically on the landscape so different kinds of uses go in different places on the landscape depending on the desires of the people in the community and the character of the town and landscape.

Zoning is intended to create performance standards such as setback limits, impervious surface limits, and noise limits so the uses that do go on do not create problems for abutters or the general public; and prevent new uses which are not compatible with the character of Andover and the desires of the residents.

How does this process work? By making a list of uses such as a residence, restaurant, and forestry; divide the town into different districts, identify the main characteristics and attributes that the people of Andover want in each district, and then list the uses that are permitted in those districts. These uses are separated into two categories: those permitted by right, and those permitted by Special Exception. Zoning also lists the various performance standards that go with the uses that can go on.

What is a Special Exception? If a use is permitted by right, a resident can go ahead and do it as long as other applicable regulations are complied with. Certain uses are listed as permitted by Special Exception, which is granted by the Zoning Board of Adjustment provided it is compatible with the character of the surrounding uses and the Master Plan and Zoning Ordinance and to place any conditions on that use if the Board feels it is compatible.

How is the Zoning Ordinance created and modified? Only Town Meeting can create or modify the Zoning Ordinance. The town votes to create a Planning Board (Andover’s was created around 1972); the Planning Board then develops a Master Plan, and state law specifies what has to be in the Master Plan.

The Planning Board then drafts a Zoning Ordinance, which implements the recommendations of the Master Plan, and this is presented to the voters at Town Meeting. This is voted on by ballot and is not discussed at Town Meeting.

After the Zoning Ordinance is adopted (Andover’s was adopted in May of 1974), the seven members of the Planning Board administer the Ordinance and update the Master Plan from time to time and prepare amendments to the Zoning Ordinance. The Planning Board also administers some other regulations, such as Site Plan Review and Subdivisions and Excavation Review, as authorized by Town Meeting.

Zoning’s history in Andover. The Planning Board was created around 1972 and the Master Plan around 1974, and zoning was adopted at a special Town Meeting in September of 1974. Article D1 was adopted in 1978. D1 indicates that any use is allowed in any district by Special Exception granted by the Zoning Board of Adjustment.

The Master Plan was updated in 1992, but there were no changes to the Zoning Ordinance as a result. The Master Plan was updated again in 2013. A few other amendments have been added to the Zoning Ordinance over time, the most recent being in 2014.

In 2014, the building permits process was incorporated into the Zoning Ordinance, and the Zoning Administrator position was created to replace the building inspector position.

Andover’s current Zoning Ordinance has four districts: Forest/Agricultural; Agricultural/Residential; Rural Residential; and Village.

The current permitted uses and those allowed by Special Exception (not including Article D1) is fairly restrictive.

The updated Master Plan in 2013 includes a town-wide survey for input by residents and a build-out analysis. A land-use survey was done, and some guiding principles were developed as a result of the town-wide survey and visioning session.

Drafting Zoning Ordinance amendments. The Master Plan is drafted and adopted by the Planning Board, and the Master Plan is implemented by amendment to the Zoning Ordinance and to other land use regulations as appropriate.

The first public hearing was held in November 2014. This June 2015 hearing is the second one, and another public hearing will be scheduled for November 2015 with a revised draft with wording to take to the 2016 Town Meeting. Public input will be incorporated, and another public hearing will be scheduled for December 2015, after which it will go into the town warrant for 2016 Town Meeting.

There are five proposed amendments:

• Article A: expand the permitted uses and Special Exception uses and replace D1 with that process and revise criteria for Zoning Board of Adjustment
• Article B: correct and update zoning map
• Article C: create a new Business District
• Article D: provide for accessory apartments accessory to a single family unit, allowing one apartment per lot
• Article E: update the Rural Residential District around the Ragged Mountain Fish and Game Club to be more in line with how they operate
• Concerns and inquiries of the public regarding the presentation:

Toby Locke asked how do you get members on the board? Currier responded they are appointed by the Board of Selectmen.

Toby Locked asked how do you prevent cronyism. Currier responded it is the job of the Selectmen to filter, or vet, the potential appointees so there is a balance. Toby asked if this is giving the board more power and the homeowner less power, and Duncan Coolidge responded that no, because the residents vote on what are acceptable uses in each district when they vote to approve amendments to the Zoning Ordinance.

Dan Coolidge, Zoning Board of Adjustment member, stated he takes exception to the explanation of Section D1 of the Zoning Ordinance and advises the granting of a D1 is a lot more restrictive than Paul explained.

Mary Anne Broshek asked if the public comments submitted for the January meeting will be reconsidered. Currier responded that yes, they will.

Jeff Newcomb stated he attended the public hearing in January 2015 and had concerns regarding eliminating D1 portion, as he sits on the Zoning Board and many times unique cases come before the Board and a D1 is how the Board deals with these cases. Currier stated that he would address this during the discussion on Article A.

Bob Ward asked the Planning Board members to introduce themselves, which they did.

Don Kaplan asked at what point are the decisions of the Planning Board under the review of the Zoning Board of Adjustment. Currier advised this will be addressed during the course of the hearing.

Article A: Expanding the permitted uses and Special Exception uses and replace D1 with that process and revise criteria for the Zoning Board of Adjustment was discussed. The comprehensive use tables for principal and accessory uses was reviewed.

Currier stated that if anyone feels a use should be listed that is not, to indicate as such. Toby Locke asked that the abbreviations P, SE, and N be identified and this was done by Paul.

Bob Ward stated that neither the term principal use nor accessory use are defined in the definition section and that they should be and accessory use is no more than 50% of the principal use of the building. Mark Cowdrey stated a % should not be indicated; however, incidental and subordinate should be defined. Toby Locke asked if Article A will limit the number of building permits and will it limit growth in general. Currier responded that building permits are not limited any longer. Dan Coolidge stated that the purpose of Section VI was if someone did not consider something or forgot something, Section VI would permit without having to go through Town Meeting and waiting two years for something to be allowed. If Section VI is removed, the “safety valve” has been removed and feels it should not be done.

Chuck Keyser agrees with Dan Coolidge, in the hopes that residents will not be fined for things that Section VI could provide.

Mary Anne Broshek stated that it is important to have a “safety valve” not just for things you want in the list but so residents can protest about something that seems to be allowed not only if they are not in agreement and that the townspeople should have a say in certain uses. Currier stated that if the list of permitted and Special Exception uses needs to be changed, it can be. Mary Anne also feels the list should be published in the Beacon for residents to review and think about it.

Andy Guptill stated that many historically agricultural properties are in the East Andover Village District and feels the list should be reconsidered to accommodate these properties.

Wood Sutton stated that he likes the list but not the escape clause because we would be back to “anything goes.” We should adjust the list based on comments made at the hearing.

Jeff Newcomb stated that the ZBA has to deal with various tasks through the D1 and one example is RSA 155:E Pit Excavations. How would excavation pits be allowed under the proposed list? Currier stated that excavation pits are allowed everywhere by Special Exception, except in the Village District.

Lou Allison stated that commercial heliports were addressed, but not private. Currier responded that the list does not make a distinction between personal and private, and it is permitted in the Business District.

Mark Cowdrey stated he feels the concept of a list is problematic in and of itself in trying to think of every use and application and it’s impossible to do and would prefer guiding language rather than an exhaustive list. Currier responded that the list is things that ought to be occurring in Andover as a permitted use or a special exception, and there are some things that are mutually agreed upon that ought not to occur in Andover and those are not on the list.

Brendan Newton thanked the Planning Board for their work on this list; however, feels nobody can foresee what could be in the town in five or ten years down the road. Currier stated that there is a process for changing the list which was touched upon during the introduction.

Brenda Godwin stated that she agrees we need a safety valve rather than the floodgate of egregious problems under the current ordinance with respect to enforcement.

Bob Ward stated that the list is not carved in stone and more uses can be added at future Town Meetings. If the D1 is left in, three votes by the ZBA will allow something that was never anticipated by the Town Meeting.

Chuck Keyser stated he has a concern with the year time-frame for approval at Town Meeting for a use to be added and feels that it isn’t fair that new people in town can shoot down a use for someone that has been in town a long time. Jon Warzocha responded that the board is trying to expand the list to shorten the time-frame for approval by a board.

Jim Danforth stated that Andover’s biggest problem is enforcement and asked what mechanism will be used for enforcement. Currier invited him to Planning Board meetings and advised that the board is working on enforcement concerns and resolutions. Danforth replied that a budget is necessary for enforcement and asked what is being done regarding one.

Jeff Bushey asked what does “working on it” entail. Currier stated that enforcement is a big issue and a separate meeting to discuss it can be scheduled.

Mark Cowdrey stated he feels not regulating a small business such as an automotive repair shop until the business exceeds certain criteria – an example would be someone having a business but not residing on the property – then the business should be regulated. Jeff Bushey stated he disagrees with it, if you don’t have any regulation up front, then you can’t control it after it’s out the door. Everyone has to play by the same rules.

Mary Anne Broshek stated that if something comes up that is not on the list, rather than wait until Town Meeting, it should be termed a Special Exception and go through a public hearing.

John Guiheen referenced the motor vehicle sales versus repair and asked what the difference between having it in the yard for sales versus having it in the yard for repair. He also asked if the board will tell someone they can’t sell construction equipment. He also stated that there are a lot of commercial trucks around Andover and feels the D1 needs to be looked at and the list needs to be expanded and having commercial entities in various parts of town are very valuable. Currier stated this will be addressed in the Article pertaining to the Business District.

Toby Locked asked that if there is an N under a district for a use, can this never be brought back. Currier stated the way to do this is to change the boundaries of a district.

Jeff Bushey asked if there are any changes to be made to the map, and the response was yes, the proposed Business District and the Ragged Mountain part. There are a number of other changes recommended by the Master Plan which will be future work of the Planning Board.

Chuck Keyser asked if there was more than one Business District, and Currier responded that the Master Plan has some recommendations, but the proposal at this time is for one.

Article E: As there is a fair number of residents of Ragged Mountain Fish and Game Club present, the articles will be taken out of order so that testimony on Article E can be allowed. Currier gave an overview of the proposal and indicated that the residential area owned by Ragged Mountain Fish and Game Club is currently in a Rural Residential District, and the Fish and Game Club operates under their covenants and their rules don’t match well with what is written in the Zoning Ordinance.

The proposed new Zoning Ordinance section to create a new “Ragged Mountain Residential District” is currently not written, only a strawman draft, and the board needs to work with the Ragged Mountain Fish and Game Club over the summer.

John Hodgson stated that he has reviewed the principal use tables and feels the way the Club operates fits comfortably into the current zoning category and in some instances the by-laws are more restrictive and are never less restrictive than Rural Residential and from this perspective, they don’t see the need for change.

He also infers that the town is approaching them as they see it as a subdivision, but it is a single incorporation and feels the proposed change is singling out one property owner rather than several and it makes them nervous. He also feels they work well within the current Zoning Ordinance and are wondering why the board sees the need to treat them differently when they have not needed nor requested special or different treatment.

The current Zoning Ordinance pamphlet draft (published for this hearing) does not mention Article E and it does not seem like they were on the boards’ radar and feels they would have liked the chance to have had a conversation with the Planning Board. Currier stated that the board hopes to have conversations now.

Sooze Hodgson would like the board to outline what they feel the areas of conflict and need for change are. Warzocha stated that the Zoning Ordinance allows for one residential dwelling per lot, and Ragged Mountain has more than one dwelling per lot.

John Hodgson states they were grandfathered as they were in existence prior to 1974. Warzocha stated this is true; and asked however, if they wish to build an additional home, how would they do that. They would have to go through the ZBA D-1 Special Exception process. Any modifications to existing structures would have to go through the ZBA process also, as they are only grandfathered for what was existing prior to the Zoning Ordinance.

John stated that the 1974 ordinance allowed for modification to existing structures. Warzocha asked what their objection to modifying the ordinance to allow for more flexibility for them to operate without having to come before the board(s). The board would like to make it more efficient for both the boards and the Club.

Currier stated that the board felt the way the ordinance reads now, it puts the Fish and Game Club at more risk in the future of being at odds with what the ordinance says, and if the Fish and Game Club is comfortable with the way things currently are, then that is fine, and there is no need for amendment to the Zoning Ordinance. If the Club would like to consider the options further, the board can schedule a separate meeting with the Fish and Game Club.

Lou Allison stated he likes the idea of the board meeting with the club officers.

Chuck Keyser stated if the rest of the town needs approvals, why not the Fish and Game Club. Currier stated the intent is to align things better with Ragged Mountain Fish and Game Club’s covenants so that legal troubles do not arise in the future as a result of disparities between the way they operate and what the ordinance says. If the club is satisfied that there are none, the board is fine with that, but this will be addressed at a separate meeting and, if agreeable to the Club, the Board would bring this proposed amendment back to the next public hearing with more developed ideas.

Susan McFarland stated she has made changes to her cottage and has always gotten the appropriate approvals. Toby Locked asked how the board could make it okay for Ragged Mountain to do things, but not allow other town residents to do the same things without board approvals. Currier stated this would be addressed between the Planning Board and the Club.

Bob Ward stated that the matter of grandfathering is not a vague concept and is provided in the ordinance in Article 3B stating that any use that was in existence prior to 1974 is allowed to continue.

Brendan Newton asked if Ragged Mountain Ski Area would be able to build cluster housing if nothing changed, and Currier responded no.

Article B: Correct and update zoning map

Currier stated that the zoning map is not completed, and the board will continue working on it over the summer to complete it. An electronic copy of the map will be created as the office town map.

Broshek asked if the earth’s curvature has been taken into account, and the response was yes, and the new map will be more accurate than the 1974 zoning map.

Locke stated that there is no commercial zone on the map, and his father has been taxed commercially for years. Urie responded that commercial is currently permitted in the Village District.

Ward asked if the updated zoning map will be ready for the 2016 Town Meeting, and Currier responded that the target is to have it completed and available prior to the November 2015 public hearing.

Article C: Business District

Currier stated that the Master Plan recommended creating Business Districts and where they should be. Currier presented the original proposed location with the boundaries as well as the modified location (as of January 2015) and stated that the allowed uses in the Business District are outlined in the use tables.

Locke stated that there is a large rock outcrop near the center of the proposed district making the area unable to be used. Currier responded that the idea is that this would be generally suitable for a Business District.

Locke asked if these properties would now be charged a commercial rate for taxes. Currier stated that this would not affect the assessment of the properties and would only affect the uses that can be permitted.

Keyser asked how many properties could be potentially used, and the response was that number is unknown at this time.

Locke asked if a road would be allowed, and the response was yes.

Broshek asked if the Town properties could be sold to business or leased to them, and the response was this is possible, but they are unsure of options at this time. Broshek also asked if the rail trail would be maintained and protected and the response was yes.

Broshek also reiterated that the Andover Conservation Commission is concerned with the protection of the wetlands and floodplains, and she will resubmit the maps indicating these areas.

Ricker Miller asked if there would be a buffer zone for the rail trail in order to preserve this public asset and to create a setback to protect from commercial exposure, and the response was that would be a good idea.

Guptill reiterated Locke’s concern about the ledge near the transfer station and feels this area would be most marketable and usable as a gravel operation; however, this is the only use in the proposed Business District that would require a Special Exception. He also stated that having businesses near the rail trail could be beneficial to drawing people in from the rail trail to the area businesses. Powers responded that any proposed businesses would need Site Plan Reviews.

Todd Goings stated that he feels these changes all stem back to lack of enforcement, and the Town should have started with enforcing what has been going on throughout the town. Currier stated that the board has been working on the enforcement issue. Goings feels this change is a result of the fact that enforcement did not work.

Chris Caron asked if the State is responsible for driveway permits, and the response was yes. Newton asked if Route 11 is a limited access highway and the response was no.

Ward asked how the proposed Business District works with the area immediately to the south of it, and would the area near Cilleyville Road remain Village District, and the response was yes. He also asked if these two areas have any problems with being in the same proximity to each other, and Currier stated that the board thinks they are compatible.

Goings stated that originally there were five areas in town that were looked at for Business District and does not feel everyone in town is aware of this and feels this should be brought up at a special Town Meeting so all residents are aware of what is going on. He also does not think it is right that only a few people are present at this meeting and they are making the decision for the whole town.

Caron asked if the sight limit for a town road and state road is 150 feet, and the response was yes.

John Guiheen stated that he owns land across from the Transfer Station and has been denied a driveway permit due inadequate sight distance on Route 11 and asked if the electric company would get access across Town property for their land-locked property if the Business District proposal goes through as they won’t get either a right-of-way or a road in that area. He also recommended changing the boundary up to Cilleyville Road thereby giving these areas their access.

Locke feels the roads are not capable of sustaining the type of traffic of a business district and it would destroy the quiet country life in that area. Keyser stated he agreed with Goings and would like to know what the majority of the townspeople would want for a Business District location and feels this is probably not the most economical use of the area.

Article D: Accessory apartments to existing residences

Currier explained the purpose of the article, and Powers gave some background information regarding mother-in-law apartments indicating that currently, once the mother-in-law apartment is no longer being used, the owner cannot use it for an apartment, and this article would allow the owner to maintain an apartment for income.

Locke asked if the existing apartments would now be legal, and the response was new accessory apartments would be limited to one apartment per lot. Locke asked why more than one apartment would not be allowed, and the response was they are currently allowed in the Village District and the Rural Residential District.

Goings asked if these apartments would now be considered in-home businesses, and the response was they would be classified as residences for zoning purposes.

Brenda asked if this would apply to anybody with space in the home and not limited in districts, and the response was yes.

Broshek stated she agrees that this is a good idea; however, she feels the square footage should not be limited.

Keyser stated he was concerned with the impact to the town services and school if, say, 25% of the landowners created apartments on their property and feels this should be considered and reviewed.

Ward was concerned with the distance between the primary building and an accessory building with the apartment on a large property and would this be considered a border-line absentee landlord and should the board consider a distance limit between the buildings.

Locke questioned why a landlord needs to reside on the property. Currier stated that the idea is to create the possibility for small apartments that are compatible with the character and uses of the districts. Currier also stated the concern of the absentee landlord is a good point and will be discussed at future meetings of the board.

Guptill stated that there are protections in State Law regarding landlords with the possibility of them not keeping the apartments up to state standards.

Locke stated that he has concerns with people in town making decisions for him and his property and asked if all board members are taxpayers of the town and United States citizens. The response was all board members are United States citizens and town taxpayers.

There being no further discussion, the meeting was adjourned at 9:20 PM