HomeMy WebLinkAboutPackets - Board of Adjustment (38)
*AMENDED (5/20/2020, 8:00 A.M.)
AGENDA
ORO VALLEY BOARD OF ADJUSTMENT
REGULAR SESSION
May 26, 2020
ONLINE ZOOM MEETING
https://orovalley.zoom.us/j/97754371421
REGULAR SESSION AT OR AFTER 3:00 PM
CALL TO ORDER
ROLL CALL
PLEDGE OF ALLEGIANCE
CALL TO AUDIENCE - at this time, any member of the public is allowed to address the Board on any issue
not listed on today’s agenda. Pursuant to the Arizona open meeting law, individual Board members may
ask Town staff to review the matter, ask that the matter be placed on a future agenda, or respond to
criticism made by speakers. However, the Board may not discuss or take legal action on matters raised
during "Call to Audience." In order to speak during "Call to Audience", please specify what you wish to
discuss when completing the blue speaker card.
COUNCIL LIAISON COMMENTS
REGULAR SESSION AGENDA
1.*REVIEW AND APPROVAL OF THE FEBRUARY 26, 2019 REGULAR SESSION MEETING MINUTES
2.REVIEW AND APPROVAL OF THE MAY 21, 2019 REGULAR SESSION MEETING MINUTES
3.PUBLIC HEARING: REQUEST FOR A VARIANCE TO CONSTRUCT A DETACHED GARAGE IN THE
FRONT YARD OF A PROPERTY LOCATED AT 10971 N. POINSETTIA DR. (2000517)
ADJOURNMENT
POSTED: 5/19/2020 at 5:00 p.m. by pp
AMENDED AGENDA POSTED: 5/20/2020 at 5:00 p.m. by pp
When possible, a packet of agenda materials as listed above is available for public inspection at least 24 hours prior
to the Board meeting in the Town Clerk's Office between the hours of 8:00 a.m. – 5:00 p.m.
The Town of Oro Valley complies with the Americans with Disabilities Act (ADA). If any person with a disability needs
any type of accommodation, please notify the Town Clerk’s Office at least five days prior to the Board meeting at
229-4700.
Instructions to Speakers:
Members of the public have the right to speak during any posted Public Hearing. However, those items not
listed as a Public Hearing are for consideration and action by the Board of Adjustment during the course of
their business meeting. Members of the public may be allowed to speak on these topics at the discretion of
the Chair.
In accordance with Amendment #2 of the Mayoral Proclamation of Emergency issued on March 27, 2020, the
following restrictions have been placed on all public meetings until further notice:
1. In-person attendance by members of the public is prohibited.
2. Members of the public can either watch the public meeting online
https://www.orovalleyaz.gov/town/departments/town-clerk/meetings-and-agendas or, if they would like to participate
in the meeting (e.g. speak at Call to Audience or speak on a Regular Agenda item), they can attend the meeting and
participate via the on-line meeting application, Zoom: https://orovalley.zoom.us/j/97754371421 or may participate
telephonically only by dialing 1-312-626-6799 prior to or during the posted meeting.
3. If a member of the public would like to speak at either Call to Audience or on a Regular Agenda item, it is highly
encouraged to email your request to speak to jancona@orovalleyaz.gov and include your name and town/city of
residence in order to provide the Chair with advance notice so you can be called upon more efficiently during the
Zoom meeting.
4. All members of the public who participate in the Zoom meeting either with video or telephonically will enter the
meeting with microphones muted. For those participating via computer/tablet/phone device, you may choose
whether to turn your video on or not. If you have not provided your name to speak prior to the meeting as specified in
#3 above, you will have the opportunity to be recognized when you “raise your hand.” Those participating via
computer/tablet/phone device can click the “raise your hand” button during the Call to the Public or Regular Agenda
item, and the Chair will call on you in order, following those who submit their names in advance. For those
participating by phone, you can press *9, which will show the Chair that your hand is raised. When you are
recognized at the meeting by the Chair, your microphone will be unmuted by a member of staff and you will have
three minutes to speak before your microphone is again muted.
5. If a member of the public would like to submit written comments to the Board of Adjustment for their consideration
prior to the meeting, please email those comments to jancona@orovalleyaz.gov, no later than sixty minutes before
the public meeting. Those comments will then be electronically distributed to the public body prior to the meeting.
If you have any questions, please contact the Commission’s recording secretary at jancona@orovalleyaz.gov.
Thank you for your cooperation.
“Notice of Possible Quorum of the Oro Valley Town Council, Boards, Commissions and Committees: In accordance
with Chapter 3, Title 38, Arizona Revised Statutes and Section 2-4-4 of the Oro Valley Town Code, a majority of the
Town Council, Planning and Zoning Commission, Historic Preservation Commission, Parks and Recreation Advisory
Board, Stormwater Utility Commission, and Water Utility Commission may attend the above referenced meeting as a
member of the audience only.”
Board of Adjustment 1.
Meeting Date:05/26/2020
Requested by: Bayer Vella, Community and Economic Development
Submitted By:Jeanna Ancona, Community and Economic Development
Case Number: N/A
SUBJECT:
REVIEW AND APPROVAL OF THE MAY 21, 2019 REGULAR SESSION MEETING MINUTES
RECOMMENDATION:
Staff recommends approval.
EXECUTIVE SUMMARY:
N/A.
BACKGROUND OR DETAILED INFORMATION:
N/A.
FISCAL IMPACT:
N/A.
SUGGESTED MOTION:
I MOVE to approved (approve with changes), the May 19, 2019 meeting minutes.
Attachments
5-21-19 Draft Minutes
Board of Adjustment 2.
Meeting Date:05/26/2020
Requested by: Bayer Vella, Community and Economic Development
Submitted By:Hannah Oden, Community and Economic Development
Case Number: 2000517
SUBJECT:
PUBLIC HEARING: REQUEST FOR A VARIANCE TO CONSTRUCT A DETACHED GARAGE IN THE FRONT
YARD OF A PROPERTY LOCATED AT 10971 N. POINSETTIA DR. (2000517)
RECOMMENDATION:
Staff recommends denial of the request.
EXECUTIVE SUMMARY:
The applicant is requesting a variance to construct an
approximately 1,500 square foot detached garage in the
front yard of their property. The subject property is located
within an R1-43 zoning district which does not allow
detached accessory structures, including garages, in the
front yard. The subject property is lot 21 in the Monte del Oro
subdivision as shown on the map to the right.
The home was built towards the back of the property on the
highest and flattest part of the lot, with a significant
downward slope behind the home to the rear of the lot. A
significant slope also exists at the front of the property,
causing the need for a long, steep driveway to the home.
Due to the placement and construction of the home, there is
no functional location for a detached garage behind or
beside the front of the main home or an attached addition to
the existing garage. The proposed location of the detached garage is in front of the home on a more level piece of
land and is the most suitable area for a detached garage on the property. However, the need for the garage stems
from circumstances created by the property owner due to the number of personal vehicles owned and the need for
additional storage space.
Staff recommends denial of the variance request determining that all five findings have not been met as described
in the following background and detailed information.
BACKGROUND OR DETAILED INFORMATION:
EXISTING CONDITIONS:
Property is located in the Monte del Oro subdivision
Lot size is 61,000 square feet
Property was purchased in 1991 with the existing home already constructed on the lot (built in 1988)
The home is located on the highest and flattest part of the lot with significant slopes to the front, side, and rear
An existing 2-car garage is attached to the home
DISCUSSION:
State Law and the Oro Valley Zoning Code require the Board of Adjustment to determine that all of the following
variance findings have been met in order to grant a variance. The required five findings are shown in italics below,
followed by the applicant and staff comments. The Applicant’s complete response to the findings are included in
Attachment 1.
1. That there are special circumstances or conditions applying to the property referred to in the application
including its size, shape, topography, location or surroundings which do not apply to other properties in the district.
Applicant Comment:
The applicant refers to the west side of Poinsettia Dr. where their property is located and explains that the
topography has created long, narrow lots. The applicant also describes the steep approach to their home with a
long driveway and the steep slope behind the home and how the home was built on the flattest part of the lot.
A leech field exists to the north of the home limiting any potential garage location, and mature vegetation and
potential setback issues exist to the south of the home for a garage. The applicant explains that enlarging the
existing garage would not be feasible as it would render the existing tight turn-around space unusable.
The applicant states that the shape, topography, locations of the existing driveway, home, and garage, and the
existing setbacks all create special circumstances that do not apply to other properties in the district and that the
proposed location is the only place on the property where a detached garage could be located.
Staff Comment:
While the topography on the west side of Poinsettia Dr. affects other properties in the subdivision in terms of slope
and house location, the subject property still has unique circumstances that apply to it. Other homes located on lots
with similar topographic constraints have turnaround areas located to the north, south, and west of the homes,
while this is not possible on the subject property due to the existing leech field north of the home (Attachment 2).
This makes any encroachment into the existing turnaround for a garage extension not feasible as it would render
the existing turnaround non-functional (Attachment 3).
Topography constraints to the south of the home also limit where a garage can be built, and outdoor living space
and landscaping currently exists on the south side of the home (Attachment 3). Construction is not feasible behind
the home due to a significant slope downwards to a wash that limits access and a buildable location. The proposed
location of the detached garage is the only place on the property where one could be built as it is a more level area
among the slopes (Attachment 4).
Other homes in the Monte del Oro subdivision are located on flatter lots where there would be more opportunities
for a garage location. Due to the aforementioned factors regarding topography, house placement, and the existing
leech field, staff finds that special circumstances do apply to this property and that this finding has been met.
2. That special circumstances were not created by the owner or applicant.
Applicant Comment:
The property owner states that the home was purchased in 1991 and was already built, and therefore did not make
any decision regarding the placement of the home, existing garage, or driveway and turnaround design. The
applicant states that the topography on the lot was not created by them and that the special circumstances
necessitating the request for the variance were not caused by them either.
Staff Comment:
While the applicant did not build the home nor dictate the location of the structure or existing garage, there are
special circumstances created by the applicant that require the request for a variance.
There is an existing 600 square foot, two-car garage on the property. However, the applicant owns more personal
vehicles than what can be kept in the garage and parks the extra vehicles in the turnaround area or along the
street when they have company. This has created space and safety issues that have necessitated the need for an
approximately 1,500 square foot detached garage. This is further discussed by the applicant in Finding 3. The
number of personal vehicles the applicant owns has created a special circumstance that has caused the need for
the variance request. Therefore, this finding has not been met.
3. Variance is necessary for the preservation and enjoyment of substantial property rights.
Applicant Comment:
The applicant refers to the existing two-car garage which is short and narrow and inadequate for keeping vehicles
and having extra storage space. The applicant explains that due to the six vehicles they own, extra vehicles must be
parked in the turnaround area on the shoulder of Poinsettia Dr. when service vehicles or company is expected. The
applicant explains that this creates safety issues and that an additional larger garage is necessary for the
preservation and enjoyment of substantial property rights.
Staff Comment:
The existing garage is too small to meet the needs of the applicant to safely and securely keep their vehicles and
provide needed storage space. The number of personal vehicles owned by the applicant has also created space
and safety issues in the turnaround area. However, this is a self-imposed condition as described in Finding 2.
Because a garage already exists on the property, the addition of a second detached garage due to self-imposed
conditions is not a substantial property right and this finding has not been met.
4. That any variance granted imposes such conditions as will assure that the authorizing of the adjustment shall not
constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zone
in which such property is located.
Applicant Comment:
The applicant states that if the variance request is granted, the detached garage would be placed in a very specific
location due to the existing special circumstances on the property and that the proposed location is the only area
where the detached garage could be built. The property owner states that the granting of a variance does not
constitute a special privilege from other properties in the district due to the unique circumstances that exist on the
subject property.
Staff Comment
A number of lots in the Monte de Oro subdivision have detached accessory structures on the property. While nearly
all of these are in the side or rear yard, the unique circumstances that apply to the lot make the proposed location
for the detached garage the only suitable area on the property. Detached accessory structures are not unusual in
this zoning district and do not grant a special privilege. Therefore, this finding has been met.
5. That the authorizing of the variance will not be materially detrimental to persons residing in the vicinity, to
adjacent property, to the neighborhood or the public welfare in general.
Applicant Comment:
The applicant has included Exhibit A and Exhibit B in their application (Attachment 1) which shows an aerial with
the proposed garage location and elevations and floor plan of the proposed garage. The proposed garage will sit
lower than the neighboring home to the north and will not create negative visual impacts. The applicant also
explains through Exhibit C (Attachment 1) that view impacts will be minimal from Poinsettia Dr. Exhibit D
(Attachment 1) is an approval letter from the Monte de Oro Homeowners Association for the proposed structure.
The applicant states that the proposed garage will match the existing home and that the request is not detrimental
to adjacent property owners, the Monte de Oro neighborhood, or public welfare in general.
Staff Comment
Staff has met with the property owner on-site twice to discuss the request and evaluate the proposed location. The
proposed garage will be located substantially lower than the existing home and neighbor to the north. The proposed
structure will also be set back over 100 feet from the front property line and will have minor if any visual impact from
Poinsettia Dr. Due to these factors and the existing approval from the Monte de Oro Homeowners Association, this
finding has been met as the proposed garage will not be materially detrimental to adjacent properties, the
neighborhood, or public welfare in general.
PUBLIC PARTICIPATION
Public Notice has been provided as follows:
Notice sent to all property owners within 300 feet of the subject properties.
Notice posted on the property.
Notice posted online at www.orovalleyaz.gov
Notice advertised in the Daily Territorial.
FISCAL IMPACT:
N/A
SUGGESTED MOTION:
I MOVE to approve this variance request to construct a detached garage in the front yard of 10971 N. Poinsettia
Drive, based on the finding that the five criteria have been met.
OR
I MOVE to deny this variance request to construct a detached garage in the front yard of 10971 N. Poinsettia Drive , based on
the finding that the five criteria have not been met.
Attachments
Attachment 1: Applicant Submittal
Attachment 2: Subject Property and Surrounding Neighbors
Attachment 3: Site Photos
Attachment 4: Topographic Map
R. MICHAEL WEST
ORO VALLEY, ARIZONA 85737
Via E-mail Planning@orovalleyaz.gov
February 19, 2020
Town Of Oro Valley
Community And Economic Development Department
11000 N. La Cañada Drive
Oro Valley, Arizona 85737
Attention: Planning
Re: Application For Variance
Applicant/Owner: R. Michael West
Subject Property: 10971 N. Poinsettia Drive, Oro Valley, Arizona
Please find submitted herewith, the undersigned’s Application for a Variance from the
Zoning Code provision of the single family residential district R1-43, which prohibits building a
detached garage closer to the front lot line than the main house.
The Application includes the following materials:
The completed General Application form;
A Site Plan;
Narrative Describing Nature Of Request;
Detailed Answers To Each Of Five Findings - Discussion And Evidence Providing
Justification For Grant Of Variance; and,
Supporting Documents:
Exhibit 1
Exhibit A
Exhibit B
Exhibit C
The Fee related to this Application For Variance, in the amout of $150 will be paid by credit
card. Please contact the undersigned by telephone for the credit card information.
Respectfully submitted,
R. Michael West
R. Michael West
RMW/cb
Enclosures: as stated
Narrative Describing Nature Of Request
Applicant seeks a variance from the general R1-43 Zoning Code provision which prohibits
building a detached garage closer to the front lot line than the main house. Applicant was first
advised of this provision, when he made a preliminary submission of his building plans to the
Building Permit Division, of the Town Of Oro Valley. Applicant was advised that owing to the
location of the proposed detached garage on his property, he would have to apply for and be granted,
a variance, before a building permit could issue.
The legal description of the subject property is Lot 21 of the Monte Del Oro subdivision in
Oro Valley. Lot 21 is a long and narrow piece of property, extending up hilly terrain from the west
side of Poinsettia Drive. There is an existing driveway leading up a ridge to the main house, located
approximately 3/4 of the distance from the front lot line to the rear lot line. The terrain from the rear
of the main house drops off sharply to a wash running along the rear lot line.
As explained more fully below, Applicant has substantial need for additional garage and
storage space on his property. There is no room for expanding the existing garage, because the
existing driveway, the garage turn-around area, and the main house prohibit such expansion. Thus,
Applicant turned to the concept of a detached garage to meet that need.
In reviewing possible locations for a new garage, it became apparent that there was only one
feasible area on the subject property for that proposed garage. That area is between the main house
and the front lot line, to the north of the existing driveway. Applicant is therefore seeking from the
Board of Adjustment, a variance in the literal provisions of the zoning code. Such a variance would
allow Applicant to build a detached garage in the sole feasible area on his property, and would avoid
undue hardship on Applicant.
-1-
Detailed Answers To Each Of the Five Finding In Section 2.0 With
Discussion And Evidence Providing Justification For Grant Of Variance
A. There are special circumstances or conditions applying to the property referred to in
the application including its size, shape, topography, location or surroundings which
do not apply to other properties in the district.
The subject property is located on the west side of North Poinsettia Drive, in the Monte Del
Oro subdivision of Oro Valley. The subject property and the lots around the subject property, are
approximately 1+ acres in size. However, owing to the topography of the lots on the west side of
Poinsettia Drive, the lots are long and narrow, rising westerly from street level to higher terrain
where homes are built.
The home and the existing garage on the subject property were built on the highest portion
of the lot, approximately 3/4 of the distance from Poinsettia Drive, to the back lot line. The terrain
between the west side of the house drops off steeply to the back lot line, leaving an inadequate
amount of room for a garage and a vehicle turn-around space. Also, access to the rear portion of the
property is limited to one approximately 30' setback strip on the south side of the house, where
existing mature natural plants and landscaping would have to be removed to provide access to a rear-
located garage. (See, Exhibit 1). The septic system and the leech line are located on the north side
of the house, so an access road could not be built there. Lastly, access to a rear-located garage would
be problematical for access by the fire department.
The driveway on the subject property is long, ending in a confining turn-around space in front
of the existing garage. The existing garage cannot be enlarged in any direction, as there are existing
structures and the turn-around space would no longer be usable.
-2-
In a more typical lot, there would be more buildable spots for a detached garage, or for the
expansion of an existing garage. However, the shape, topography, locations of the existing
driveway, home, and garage, and the existing setbacks, all create special circumstances which do not
apply to other properties in the district. These special circumstances make the proposed location
for the detached garage the only possible location for it on the subject property.
B. Special circumstances were not created by the owner or applicant.
Applicant for the present variance purchased the subject property in 1991, from a private
financier who had foreclosed on a loan made by the builder/owner. The builder/owner was a
contractor who designed and built the home for himself, but never lived in it. In other words,
decisions regarding the size and location of the driveway, the present two-car garage, and the house
were all made by the foreclosed-upon builder/owner, not by Applicant.
Applicant did not create the size and shape of the subject property, nor did he have any say
about the topography and terrain which likely resulted in the long and narrow configuration of the
subject property. Consequently, the special circumstances necessitating the request for the present
variance, were not caused by Applicant.
C. The authorizing of the variance is necessary for the preservation and enjoyment of
substantial property rights.
Applicant’s existing two-car garage is very inadequate, both for garaging vehicles, and for
storage. Applicant has six vehicles registered in the State of Arizona, and no room to house them
safely and securely on his property. Three of these vehicles are covered under special policies which
-3-
require that the vehicles be housed in a secure garage.
Because multiple vehicles have to be parked outside the garage in the turn-around space,
vehicles often have to be moved temporarily down for parking on the shoulder of Poinsettia Drive,
when service vehicles or company is expected. This creates potential safety hazards for the public,
and property security issues for Applicant.
The existing two-car garage is short and narrow, providing little room for storage at the end
or sides of the garage. A new and much larger detached garage would not only allow Applicant to
house all of his vehicles, but it would also provide much needed space for storage racks and cabinets.
Authorizing the requested for variance is therefore necessary for the preservation and
enjoyment of substantial property rights.
D. Any variance granted imposes such conditions as will assure that the authorizing of the
adjustment shall not constitute a grant of special privileges inconsistent with the
limitations upon other properties in the vicinity and zone in which such property is
located.
If a variance is granted for the subject property, the detached garage will be built in a specific
location on the property, based upon the previously discussed special circumstances which exist on
that property.
There is no other location on the subject property where a detached garage could be built,
Applicant did not create the special circumstances which necessitate the variance, and grounds have
been shown that grant of the variance will preserve the integrity of the property and enhance the
enjoyment of Applicant’s property rights. Moreover, as discussed below, the grant of the variance
-4-
will not detrimentally affect adjacent property owners or the public in general.
Under these circumstances, authorizing the allowance of a detached garage in the proposed
specific location does not constitute a grant of special privileges which are inconsistent with the
limitations upon other properties in the vicinity. The general zoning prohibition on building a
detached garage closer to the front lot line than the main house still remains; the grant of a variance
to build a detached garage in a specific location when special circumstances have been shown is not
inconsistent with that general prohibition.
E. The authorizing of the variance will not be materially detrimental to persons residing
in the vicinity, to adjacent property, to the neighborhood or the public welfare in
general.
Attached hereto, and identified as Exhibit A, is an aerial photograph of the subject property,
showing the front and side property lot lines, the existing house (including attached garage and
porches), the existing driveway, Poinsettia Drive, and the area of the proposed detached garage,
including an access driveway. There are no accessory structures on the property.
Attached hereto, and identified as Exhibit B, is a drawing sheet of the proposed garage,
showing the floor plan, the roof framing plan, a north/south sectional view, a front elevational view,
and a south elevational view, the north elevational view being identical thereto.
The proposed detached garage is more than 30 feet from any property line, so no offset
variance is needed.
The proposed garage is located at an elevation substantially below the upper end of the
existing driveway, and some of the walls will be partly below the grade of the surrounding ground,
-5-
imbedded in the hillside. As a consequence, there will be no impairment of any views toward the
mountains, either from the subject property or from the property of the neighbor to the north, or from
the vacant property to the south.
Attached hereto, and identified as Exhibit C, is a photo taken from Poinsettia Drive toward
the location of the proposed detached garage. Owing to the existing trees and the partially imbedded
walls of proposed structure, very little, if any, of the proposed garage will be visible from Poinsettia
Drive.
All utilities to the proposed garage will be underground, and the architecture and exterior
color of the proposed garage are consistent with the existing main house.
Attached hereto, and identified as Exhibit D, is the approval of the Monte Del Oro Home
Owners Association, dated September 9, 2019, for building the proposed detached garage.
In view of the foregoing, Applicant respectfully submits that authorizing the variance will
not be materially detrimental to persons residing in the vicinity, to adjacent property owners, to the
Monte Del Oro neighborhood, or to the public welfare, in general.
-6-
BOARD OF ADJUSTMENT
Case Number: 2000517
Meeting Date: May 26, 2020
Re: Variance Request For
10971 North Poinsettia Drive
Detached Garage Between House
And Poinsettia Drive
APPLICANT’S REBUTTAL TO REPORT AND RECOMMENDATIONS OF
ORO VALLEY PLANNING STAFF
In its report, dated May 19, 2020, the Oro Valley Planning Staff opined that Applicant did
not meet all five of the criteria required for the grant of a variance, as set forth in Oro Valley Zoning
Code, Section 22.13 (C)(1-5). Specifically, the Staff stated that Applicant did not provide sufficient
evidence to support findings that Requirements (2) and (3) of Section 22.13 (C) were satisfied.
Requirement (2) states: “That special circumstances were not created by the owner or
applicant;”.
Requirement (3) states: “That the authorizing of the variance is necessary for the
preservation and enjoyment of substantial property rights;”.
Applicant respectfully submits that he has, in fact, submitted sufficient evidence from which
the Board Of Adjustment (BOA) can and should find that all five (5) Requirements, including
Requirements (2) and (3), have been satisfied, and that the requested Variance should be granted.
A. The Report And Recommendations Of The Oro Valley Planning Staff Are Based Upon A
Faulty Interpretation Of Section 22.13 (C).
Requirement (1) of Section 22.13 (C) states: “That there are special circumstances or
APPLICANT’S REBUTTAL -1-Case Number: 2000517
conditions applying to the property referred to in the application including its size, shape,
topography, location or surroundings which do not apply to other properties in the district;”.
(emphasis added).
Requirement (2) of Section 22.13 (C) states: “That special circumstances were not created
by the owner or applicant;”. (emphasis added).
Applicant respectfully submits that the special circumstances in Requirement (2) are
referencing the special circumstances described in Requirement (1). In other words, properly
interpreted, Requirement (2) should read: “That (the) special circumstances (of the property) were
not created by the owner or applicant;”.1
The Planning Staff is interpreting the term “special circumstances” as used in Requirement
(2) to mean literally any decision, activity, or need of the owner or applicant. With that
interpretation of the Code language, virtually every application for a variance could be denied, unless
a change in the law prompted the need for the variance.
The Planning Staff is interpreting the relevant Code provisions, without authority or
1. Arizona Revised Statutes at Section 9-462.06(G)(2), provides that a board of adjustment
shall:
Hear and decide appeals for variances from the terms of the zoning ordinance only
if, because of special circumstances applicable to the property, including its size,
shape, topography, location, or surroundings, the strict application of the zoning
ordinance will deprive the property of privileges enjoyed by other property of
the same classification in the same zoning district. Any variance granted is subject
to conditions as will assure that the adjustment authorized shall not constitute a grant
of special privileges inconsistent with the limitations upon other properties in the
vicinity and zone in which the property is located. (emphasis added).
Arizona Revised Statutes at Section 9-462.06(H)(2), provides that a board of adjustment may
not:
Grant a variance if the special circumstances applicable to the property are
self-imposed by the property owner. (emphasis added).
APPLICANT’S REBUTTAL -2-Case Number: 2000517
rationale, to require that two (2) classes of “special circumstances” be satisfied. One class of
“special circumstances” having to do with the features or characteristics of the subject property
(Requirement (1)), and another class of “special circumstances” having to do with any and all
decisions, activities, or needs of the applicant whether or not they affect the features or
characteristics of the property (Requirement (2)).
As a general proposition, the Code should be interpreted by this Board reasonably, in view
of the purpose of the Code, the language used elsewhere in the Code, and in a manner consistent with
other provisions of the Code. Applicant submits that Requirement 2 should be read and understood
in light of Requirement (1), and should not be given the vague, subjective, and overbroad
interpretation offered by the Planning Staff.
B. Misinterpretation Of Section 22.13 (C) Of The Oro Valley Code Leads To Arbitrary And
Capricious Recommendations
Central to the Planning Staff’s recommendation that the Application be denied, are the
assessments that, “.....the property owner did create the special circumstances to necessitate the need
for an additional garage”, and that, “.....the circumstances to require an additional garage were
ultimately self-imposed”.
By misinterpreting Requirement (2) of the Code to focus on all decisions, activities, and
needs of the applicant, rather that focusing on applicant’s conduct that may have created the
special circumstances exhibited by the property, the provisions of the Code pertaining to
variances are impermissibly arbitrary and capricious. This misinterpretation of the Code led directly
to the erroneous conclusions contained in the Planning Staff Report.
APPLICANT’S REBUTTAL -3-Case Number: 2000517
As applied by the Planning Staff, the Code is arbitrary because it is subject to an individual’s
will or judgment, without restriction, contingent solely upon one person’s discretion. There is no
objective standard or measure upon which the public can rely, to be treated fairly and evenhandedly
when applying for a variance. For example, if the necessity for the auxiliary structure were for an
art studio, an indoor archery range, or a woodworking shop, would the application be viewed more
favorably? Why should that be the case, if the standard is objective?
As applied by the Planning Staff, the Code is capricious because it is based upon ideas (six
cars are too many, only one garage is sufficient, having need for additional storage is self-imposed),
that are impossible to predict. How is the public to know how many cars, garages, workshops, or
storage places are too many for the Planning Staff of Oro Valley? How is the public to know that
a second garage is not a good thing, but having a tool shed is acceptable?
In short, the application of the Planning Staff’s misinterpretation of Requirement (2) to an
array of situations and circumstances that are likely to arise, will lead to arbitrary and capricious
recommendations, and ultimate findings, if followed. In its variance applications, the public
deserves not only to be treated fairly, but also in a manner which is reasonably predictable. It is for
these reasons that the interpretation of the Oro Valley Code proposed by the Planning Staff, should
be rejected by this Board.
C. Applicant Has Shown That The Variance Is Necessary For The Preservation And
Enjoyment Of Substantial Property Rights
In its recommendation respecting Requirement (3), the Planning Staff found that “...one
garage is considered a substantial property right”, and that “...staff does not find that an additional
APPLICANT’S REBUTTAL -4-Case Number: 2000517
garage due to circumstances created by the property owner to be a substantial property right”. This
conclusion is premised on circular reasoning, namely, if A is true then B must be true. The problem
is, as stated above, this conclusion is based upon an erroneous misinterpretation of Requirement (2).
Simply put, Applicant has not engaged in decisions and activity which have affected the size,
shape, topography, location or surroundings of the subject property in such a way as to give rise to
“special circumstances”.
And, in his Application, Applicant has shown that having a second garage and additional
storage space is necessary for the preservation and enjoyment of substantial property rights.
As an illustration of what “enjoyment of substantial property rights” means, suppose that
Applicant’s family grew over the years, from say three members to seven members, and the need
arose for an additional garage or additional storage space. One should question: is it the purview of
the Planning Staff to conclude that Applicant should only have one garage even though that garage
is demonstrably inadequate?
Clearly, Applicant had something to do with the necessity of the additional garage, but under
the Planning Staff’s rationale, one garage is enough particularly when Applicant is responsible for
the necessity of a second garage. Such a conclusion is neither fair nor rational.
The Board should reject the Planning Staff’s circular reasoning, which led to the improper
conclusion that an additional garage is not necessary to preserve and enjoy substantial property rights
in the subject premises.
D. Traffic Safety Remains A Substantial Issue On Poinsettia Drive
The Planning Staff acknowledges that there are traffic safety issues arising from the limited
APPLICANT’S REBUTTAL -5-Case Number: 2000517
turnaround space in front of the existing garage, and the steep driveway on the subject property. But
then blame is laid upon Applicant, for having too many vehicles. In other words, instead of viewing
an additional garage as a solution to an existing traffic safety problem, the Planning Staff is more
concerned about denying the variance based upon Applicant’s perceived culpability for having six
cars registered in the State of Arizona.
Attached hereto, and identified as Exhibit D, is a photograph taken on Poinsettia Drive facing
to the north-east, or uphill. The location of the lower section of Applicant’s driveway is shown in
solid white line, as it is completely hidden by the topography and existing vegetation. Vehicles
driven by friends and family who come to visit, as well as delivery and utility vehicles, cannot easily
turn around. Longer vehicles cannot turn around at all, if there are other vehicles already in the
turnaround area.
Then, boxed in, the vehicles must back down the long, narrow, and steep driveway and enter
this completely blind curve area of Poinsettia Drive. Because they are backing into the street, they
are completely unable to see traffic coming up Poinsettia Drive. (See, Exhibit E).
Again, this is not a “special circumstance” created by Applicant, but rather a dangerous
hidden driveway which could at least be made somewhat safer, if the driver could edge forwardly
into the street, instead of blindly backing up.
One would hope that the Planning Staff would be more concerned about traffic safety for the
public, rather than blaming Applicant for a circumstance which he did not create.
E. Conclusion
Applicant believes that he has provided substantial evidence to support a finding that all five
APPLICANT’S REBUTTAL -6-Case Number: 2000517
Requirements for the grant of a variance, have been satisfied. The improper interpretation of
Requirement (2) of the Code proposed by the Planning Staff, as well as the erroneous
recommendation which has been offered by the Staff should be rejected. Favorable findings and the
grant of a variance are respectfully requested.
Applicant further requests that this written Rebuttal as well as new Exhibits D and E,
appended hereto, be accepted by the Board as part of the record for this variance proceeding.
Dated: May 24, 2020 R. Michael West
R. Michael West, Applicant
Attachments: Exhibits D and E
APPLICANT’S REBUTTAL -7-Case Number: 2000517
R. MICHAEL WEST
CATHERINE ASHLEY STRAIGHT
Via E-mail hoden@orovalleyaz.gov
June 8, 2020
Ms. Hannah Oden
Senior Planner
Town of Oro Valley Community
and Economic Development Department
11000 North La Canada Drive
Oro Valley, AZ 85737
Re: “Denial Letter” - Board of Adjustment Matter No. 2000517 - Variance Request
Dear Ms. Oden:
We received your letter dated June 4, 2020 respecting the Board of Adjustment meeting on May 26,
2020 at which the Variance Request of R. Michael West (respecting the property at 10971 N.
Poinsettia Drive, Oro Valley) was heard.
We feel we must address two (2) incorrect statements set forth in your letter.
First, the “five findings” to which you referred are not “established in State law”. In his rebuttal
submission, Applicant set forth the exact language of Arizona Revised Statutes, Section 9-462.06
(G)(2) and (H)(2), which is the sole basis of authority for actions by a Board of Adjustment on a
variance request. A comparison of the Arizona Statute with your “five findings” shows that some
of your “findings” lack any support under the applicable Arizona law.
Second, contrary to the assertions in your letter respecting “Finding 2" and “Finding 3", the Board
failed to make any specific finding with respect to Oro Valley’s “five findings”. This fact is clearly
evident from the draft minutes of the meeting.
While there were presentations and discussions, conspicuous by its absence is any formal finding
by the Board in the minutes which merely state:
“Motion by Member David Perkins, seconded by Member Octavio Barcelo to deny
this variance request to construct a detached garage in the front yard of 10971 N
Poinsettia Drive, based on the finding that the five criteria have not been met.”
Ms. Hannah Oden
June 8, 2020
Page 2
A roll call vote of the Board Members was then taken, without any specific “finding” regarding any
requirement or criteria for a varance.
Sincerely yours,
Catherine Ashley Straight
Catherine Ashley Straight
CAS/cb
cc: Michael Spaeth via E-mail mspaeth@orovalleyaz.gov
From: Oden, Hannah
Sent: Friday, May 22, 2020 8:10 AM
To: Oden, Hannah
Subject: RE: 10971 North Poinsettia Drive, Case #: 2000517
From: Peter Wong ]
Sent: Thursday, May 21, 2020 4:39 PM
To: Oden, Hannah <hoden@orovalleyaz.gov>
Cc: Patti Wong
Subject: Re: 10971 North Poinsettia Drive, Case #: 2000517
To: Hannah Oden, Community and Economic Development
Hi Hannah -
Please accept this email as our comments of concern to the
request for variance known as Case Number 2000517 (10971
North Poinsettia Drive; Monte del Oro Lot 21) . As mentioned,
my wife Patti and I are neighbors adjacent north of this
property. We purchased our home in great part for the
unimpeded and panoramic views of the Catalina Mountains and
of the Tucson city lights from our home and pool patio
area. Prior to purchase, we were also very observant of
storm water drainage on our property because of known erosion
issues in the southwest desert environment.
Our primary concerns, therefore, are threefold.
1. The proposed detached 4 car garage has a height of 12 feet to
the top of the parapet wall. Our concern/objection would that
the top/roof of the detached garage will adversely impact our
present views of the Tucson city lights. Referencing the
topographical site plan shown on the OVProjects.com link, it
appears that the floor of of the proposed garage would be at
2,660 foot ground elevation, which would mean that the parapet
wall would reach 2,672 foot ground elevation. At that level, it
seems that our views would be preserved. To make certain, is it
possible to have temporary height markers placed at the four
corners of the proposed building prior to approval so that we
have the ability to determine the height of the parapet walls and
its impact upon our views? If, in my wife and my opinion, our
views are fully preserved and undisturbed from present, we
would be satisfied.
2. The lower portion of our property will be totally exposed to
the north side of the proposed garage, its access driveway and
turnaround area. There must be required hedge-like landscaping
along the northerly most section of those improvements to
provide visual screening between our property and any of those
improvements. We are concerned that there may be vehicles
and the like (trailers, trash cans, etc.) that may be parked or left
in the proposed driveway or turnaround area in front of the
proposed garage that would be visible from our property.
3. We understand that the Town of Oro Valley building plan
approval process would guaranty that our property will not be
adversely impacted by construction of the proposed detached
garage, particularly regarding storm water runoff and soil
erosion. At this point, there is a ravine between our properties
that carries storm water runoff towards Poinsettia Drive and
culvert beneath. We trust that both our neighbor and Oro Valley
would be liable should there be any adverse impact or soil
erosion on our property resulting from construction of the
proposed improvements.
If there is anything else or any other type of communication we
need to submit, please let me know. We plan to 'attend' the
Zoom meeting next Tuesday afternoon as well. Thank you
again, Hannah, for your prompt responses and for the
information you have provided.
Peter and Patti Wong
R. MICHAEL WEST
CATHERINE ASHLEY STRAIGHT
Via E-mail jancona@orovalleyaz.gov
June 9, 2020
Ms. Jeanna M. Ancona
Senior Office Specialist
Town of Oro Valley
11000 North La Canada Drive
Oro Valley, AZ 85737
Re: Lack Of Official Record Of May 26, 2020 Meeting - Board of
Adjustment Matter No. 2000517 - Variance Request Of R. Michael West
Dear Ms. Ancona:
This correspondence is in reference to your e-mail response on June 8, 2020, regarding our request
for a copy of the audio and/or video record of the Board of Adjustment meeting on May 26, 2020.
In my communication to you, I indicated my recollection regarding a discussion at the beginning of
the meeting confirming that the meetings are recorded and that these recordings form part of the
official meeting record. I also inquired regarding the statement in the online link for this meeting
that "There is no recording for this meeting."
In your response, you replied to my inquiries as follows:
“Yes, all of our public meetings are recorded as you stated, but unfortunately, in
applying this new technology, the 5/26/20 ZOOM meeting was not electronically
set-up to be video/audio recorded. As a result, the record only consists of draft
minutes that will be reviewed at the next Board of Adjustment meeting.”
We are very distressed to learn that there is no official record of this meeting, and that the only
“record” consists of “draft minutes”. I have reviewed these “minutes”, and find them incomplete
and an inaccurate record of what took place at this meeting.
By way example, consider the entries for Agenda Items 1 and 2, for the review and approval of the
prior meetings of February 26, 2019 and May 21, 2019. Both simply state that a motion was made
and seconded to approve each of the minutes as written.
In fact, there was discussion respecting the accuracy/completeness of one of the meeting minutes
when a Board member brought up his concerns. Mr. Joe Andrews, Chief Civil Deputy Attorney,
Ms. Jeanna M. Ancona
June 9, 2020
Page 2
participated in the discussion, at one point saying “let’s not go down that rabbit hole” and further
assuring the Board members that the entire proceedings were recorded so that everything that was
said became part of the official record. None of these discussions is reflected in the “draft” minutes.
Considering that the May 26, 2020 meeting lasted an hour and forty minutes, the “draft” minutes
referenced in your e-mail, could not be an adequate and accurate record of what actually transpired.
In addition, it could take many months for the “draft” minutes to be “approved”. The prior two (2)
meeting minutes took over a year to be approved. The June 23, 2020 meeting is listed as
“Cancelled”, and there appears to be no Board of Adjustment meeting scheduled for the future.
The explanation given for why there is no recording of this meeting is also not satisfactory. This
failure was blamed on “applying this new technology”. According to the information available
online, you were the “Recording Secretary” for this Board of Adjustment meeting held via ZOOM
on May 26, 2020; and, you were also the Recording Secretary for the Planning and Zoning
Commission meetings held via ZOOM on May 5, 2020 and June 2, 2020.
As you have stated, there is no recording for the May 26th meeting. However, there are recordings
for the May 5th meeting and the June 2nd meeting available on the Oro Valley Town Web Site. You
can appreciate that we find the explanation unsatisfactory in light of the fact that both of those
meetings, for which you were also the Recording Secretary, occurred before and after the May 26th
meeting, were in fact recorded.
A final issue regarding records of the May 26th Board of Adjustment meeting involves one of
Applicant’s document submissions. The “draft” minutes reference Applicant’s written rebuttal to
the staff report which had been provided to the Board members prior to the meeting. There was an
express request at the end of this rebuttal, that the rebuttal and attached Exhibits be made part of the
record of the proceeding. However, this document is not included in the downloadable “PDF
Packet”; and, I could not it anywhere through the online link to the meeting.
Kindly confirm that Applicant’s written rebuttal dated May 24, 2020, consisting of seven (7) pages
of text and two (2) Exhibits, is part of the official record of Applicant’s Variance Request.
Sincerely yours,
Catherine Ashley Straight
Catherine Ashley Straight
CAS/cb
cc: Michael Spaeth via E-mail mspaeth@orovalleyaz.gov
Joseph Andrews, Esq. via E-Mail jandrews@orovalleyaz.gov
Tobin Sidles, Esq. via E-mail tsidles@orovalleyaz.gov
Bayer Vella via E-mail bvella@orovalleyaz.gov