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HomeMy WebLinkAboutMinutes - Board of Adjustment - 4/5/2005 MINUTES ORO VALLEY BOARD OF ADJUSTMENT SPECIAL SESSION APRIL 5,2005 ORO VALLEY TOWN HALL COUNCIL CHAMBERS 11000 N.LA CANADA DRIVE CALL TO ORDER: 3:05 p.m. ROLL CALL PRESENT: Colleen Kessler, Chair Bart Schannep,Vice Chair John Hickey,Member Bill Adler,Member Matt Adamson,Member (arrived 3:11 p.m.) STAFF PRESENT: Bryant Nodine,Planning and Zoning Administrator Dee Widero, Senior Zoning Inspector Shirley Gay, Recording Secretary RULES AND REGULATIONS Chair Kessler called the Board of Adjustment Special Session Meeting to order. The purpose of the Special Session was to review the comments from the Mayor and staff regarding the BOA Rules and Regulations and revise them, as needed. Member Adler suggested to Chair Kessler that, in order to simplify the process, one motion could be made that would cover many simple changes. MOTION: Member Adler moved to accept the correction in wording affecting Chair and Vice Chair as indicated throughout the document and accept the substitution of shall rather than will throughout the document. Member Hickey seconded. Motion approved 4-0(Adamson absent.) April 5, 2005 MINUTES, BOARD OF ADJUSTMENT 2 Chair Kessler lead the discussion from the first category, labeled General, to the second category, labeled Organization. The following proposed revision to 2.1 Composition was discussed: "The Town Council shall appoint the members in accordance with procedures adopted by the Council. :- ':- • ':- -• :- : -- : (deleted)the attached"Desirable Attributes of Board of Adjustment Members"provide guidance in the selection of members (added). Chair Kessler noted that the Board could elect to leave the "Desirable Attributes" statement as is, or change the statement to make it more advisory. Member Adler commented that, as the Board of Adjustment is not an advisory board, it does not need to be advisory. He felt that the original wording was superior, as it indicated that consideration shall always be given to the Desirable Attributes. Member Adler suggested deferring the topic to a joint study session with Town Council so that Mayor Loomis' opinion could be heard. Planning and Zoning Administrator Bryant Nodine asserted that Mayor Loomis had recommended the proposed revision, as the Town Council is the final decision-making party in appointing Board members. Member Adler added that, typically, the interview panel would involve the Chair and Vice Chair of the Board of Adjustment, making them an equal partner in the determination of future Board members. Chair Kessler affirmed that the Board could use the Desirable Attributes to recommend a potential member of the Board to Town Council, but noted that it is then the Town Council's decision as to whom to appoint. As Member Adler did not find the proposed revision acceptable, he recommended deferring the matter to the joint study session with Council. MOTION: Vice Chair Schannep moved to not accept the changes in section 2.1 at present, but to instead table the item to the end of this meeting, if time allowed, or to defer it to the joint session with Council. Member Hickey seconded. Motion approved 5-0. Member Adler brought forward the topic of Evaluation Procedure Preparation in 2.2 Evaluation of Performance: the Mayor questioned whether what is indicated in the evaluation procedure is indeed "preparation". Member Adler wished to leave the original wording in place until such time as it could be discussed with Town Council. He stressed that the only way one could evaluate preparation is to evaluate the results. Bryant Nodine paraphrased the concerns expressed by the Mayor: he questioned whether one's ability to express and justify one's decision was really a matter of preparation, or rather a matter of communication skills. Additionally, the Mayor was concerned that relating preparation with decision-making would imply that a decision could be made prior to all items being heard at a meeting. MOTION: Member Adler moved to leave The "Board of Adjustment Evaluation Procedure" as is until the Board discusses the item with Council at the joint study session. Vice Chair Schannep seconded. Motion approved 5-0. April 5, 2005 MINUTES, BOARD OF ADJUSTMENT 3 Chair Kessler shifted the discussion to the next topic, 2.3 Removal from Office. She noted that there was some confusion with the text, as the ultimate authority for the removal of members rests with the Council, yet the text states that it rests in the hands of the Chair. In addition, there were issues regarding the rotating Chair. Member Adler noted that the rules that they were reviewing were specific to the Board of Adjustment, and should be read as they applied to the Board. He clarified that an initial judgment is made by the Chair as to whether a Board member is complying with the requirements, thus it is the Chair's responsibility to initiate action to remove a member. The text further states that a presentation would be made to the Board and that the Board would then make a recommendation to Council. Member Adler suggested rephrasing the sentence so that it is clear that the Chair is not pre-empting the Council's involvement,while also clarifying to Board members whose responsibility it is to initiate action. Vice Chair Schannep asserted that the heading for 2.3 should be titled Recommendation for Removal from Office, as it is the Chair's duty to initiate the steps to remove a Board member from office,but it is the Town Council's responsibility to remove the Board member. MOTION: Member Adler moved to change the title of 2.3 to Recommendation for Removal from Office.Member Adamson seconded.Motion approved 5-0 Member Adler inquired whether, in Bryant Nodine's opinion,the previous change would satisfy the Mayor's concerns. Mr. Nodine responded that the inclusion of the initiation wording in section A, as well as the recommended revisions to section B, would further clarify the steps that must be taken to remove a Board member from office. Regarding the sentence in section B that says, "The recommendation of the Board shall be presented to the Oro Valley Town Council for ratification at the next available meeting", Member Hickey suggested replacing the word ratification with action. Chair Kessler confirmed that section A would retain its original language. MOTION: Vice Chair Schannep moved to accept the changes to item B, except to replace the words for ratification with for action. Member Hickey seconded. Motion approved 5-0. MOTION: Member Adler moved to accept the wording as proposed in item C. Vice Chair Schannep seconded. Motion approved 5-0. Member Hickey noted that in 2.4 Officers the text is unclear as to who the Chair is at the time of a review process for new members. Vice Chair Schannep's response was that, once a meeting is over, the Chair for that meeting steps down and the next member in rotation becomes the Chair; therefore, the Chair for the review process is the member who is next in the rotation. Member Hickey identified a potential problem: a rotation of the Chair could occur during the 2-4 day process of interviewing new members, therefore the least experienced member of the Board has the possibility of being the Chair at the time of the review process. He suggested that the most April 5, 2005 MINUTES, BOARD OF ADJUSTMENT 4 senior member should be Chair for the review process. Vice Chair Schannep noted that the most senior member could remain the most senior for quite some time, and that a new member could defer the Chair to a senior member if uncomfortable. Bryant Nodine noted that the most senior person on the Board and/or the Chair could be the member who is being replaced. He suggested specifying that a member of the continuing Board would be the Chair of the review committee. Member Adler asserted that, as all Board members were presumably capable business people, any member would be qualified to participate in the interviewing panel. Member Hickey agreed with Member Adler's clarification that the participant shall be the Chair in place at the time, and recommended wording that would keep that Chair in place until the end of the review process. Member Adamson observed that the current text states rotation will halt for special sessions or regular sessions that are held without cases. Member Adler recommended adding language to guarantee that the Chair who starts the review process will finish it. MOTION: Member Adler moved to add that the responsibility for participating in the interviewing panel for Candidates for the Board of Adjustment will fall to the Chair designated for the next regularly scheduled meeting, and his/her responsibility will continue until the interviewing process is completed. Member Adamson seconded. Motion approved 5-0. Chair Kessler observed that the proposed changes to 2.5 Secretary were primarily editorial. MOTION: Vice Chair Schannep moved to accept the changes in section 2.5 A, B, & C as proposed. Member Adamson seconded. Motion approved 5-0. In section 2.6 Planning and Zoning, Bryant Nodine clarified that the revision to section H regarding the five criteria was not a change in policy, but was merely editorial. Member Hickey recommended adding the words if possible to the end of the sentence "Distribute to the Board all materials and agenda at least one(1)week prior to the meeting date." MOTION: Vice Chair Schannep moved to accept all the changes in section 2.6 with the exception of adding ifpossible to the end of the sentence in section E. Member Adamson seconded. Motion approved 5-0. Bryant Nodine confirmed to Member Adler and the Board that a sentence in section 2.7 Legal Counsel was mistakenly deleted. MOTION: Vice Chair Schannep moved to accept the changes as proposed in 2.7, with the reinsertion of the wording "The Town Attorney also provides clarification and advice to the Chair relative to parliamentary procedures." Member Adamson seconded. Motion approved 5-0. April 5, 2005 MINUTES, BOARD OF ADJUSTMENT 5 Chair Kessler reviewed Mayor Loomis' comment to section 3.5 Site Inspections: "Please consider expanding this section to provide more direction and a caution regarding ex-parte contacts." Bryant Nodine voiced Civil Attorney Joe Andrew's opinion that the instructions for ex-parte contacts were adequately described in the ex-parte contact section, but added that the Board may offer additional guidance as to what one does at a site inspection.Member Adamson suggested that, as cases vary, some general language could be added to allow elaboration on a case-by-case basis. Member Adler noted that site inspections performed by the Board of Adjustment are different than those performed by other entities, as they are usually for the improvement of personal property versus vacant land development. He observed that Board members should first obtain permission to be on the property, and then evaluate the property and its proposed variance according to the five criteria. Member Adler recommended deferring the topic so that it could be discussed further at the joint session with Council. MOTION: Vice Chair Schannep moved to accept the changes as made in section 3.3, and to table any further discussion in section 3.5 to the joint session with Council. Member Hickey seconded. Motion approved 5-0. Upon discussing 3.6 Quorum and Voting, Bryant Nodine confirmed that a quorum is required at all meetings, regardless of whether or not action is taken. Member Adler asked if it was necessary to add language detailing that "in the event of the absence of one member, a tie vote shall result in a denial of the motion". As it is a procedural issue addressed by Robert's Rules, Bryant Nodine felt that it was not necessary to add such language. It was observed that the information regarding conflicts of interests was moved to section 4.1. MOTION: Vice Chair Schannep moved to accept all changes in section 3.6. Member Adamson seconded. Motion approved 5-0. Chair Kessler read Mayor Loomis' comment to 3.7 Placement of Items on the Agenda in which he requested the Board to "Please consider if 48 hours provides enough time to receive and review the materials and prepare for the agenda item." Member Hickey observed that this section was speaking of Board members placing items on the agenda,therefore the question was whether or not 48 hours allowed enough time for staff to review the materials. Bryant Nodine answered affirmatively,providing no excess preparation of materials was required. Chair Kessler examined the suggestion to reiterate the five findings for a variance in section 4 Miscellaneous. Bryant Nodine recommended adding the code verbatim and/or referencing its code section. Member Hickey suggested adding a section labeled 4.4 Findings on a Variance [never an official motion as it was not seconded]. Member Adler voiced his preference that findings be referred to as legal standards in order to emphasize that all five must be met to receive approval. In addition,Member Adler recalled cases in which the need for a variance was due to pre-existing structures rather than land conditions. He stated that, in his mind, one's April 5, 2005 MINUTES, BOARD OF ADJUSTMENT 6 property referred to one's land, not to any structures on that land; however, he had been advised by a past Town Attorney that any structures not designed by the current homeowner were to be considered part of the property. In contrast, other jurisdictions' Boards had expressed agreement with Member Adler's original assumption. He reiterated his opinion that the conditions on a property refer to the topography, not the structures. He suggested adding examples to the section on Findings so that future Board members could benefit from the experience of past Board members. Chair Kessler and Vice Chair Schannep agreed that it would be beneficial to add examples to the BOA manual versus the Rules and Procedures. The waiving of term limits for Board of Adjustment members was discussed, as well as revisions to the BOA manual. Member Adamson inquired if a rule should be added requiring an update of the manual. Member Hickey agreed that the BOA manual, as well as the training manual and the zoning code, should be reviewed on a periodic basis, with recommendations for revisions expressed. He recommended tabling the discussion to another time. Chair Kessler observed that the discussion could not be delayed, as the Rules and Procedures was to be presented to Town Council the following week; however, she advised that a section titled Annual Review could be inserted into the Rules and Procedures. MOTION: Member Hickey moved to add section 4.4 Annual Review, that requires the Board to meet during the second quarter to review the rules and procedures manual, training manual, and zoning code to take action or make recommendations as appropriate. Vice Chair Schannep seconded. Motion approved 5-0. Member Hickey recommenced the discussion on the requirements for a variance or appeal. He noted that examples from past cases of variances should be listed in the training manual. In addition, he conceded that he was unfamiliar with the appeals process. Member Adler asserted that it was the Board's responsibility to look at an interpretation that has been appealed and to re-analyze and correct it, if necessary. He further suggested that a paragraph could be added to section 4 regarding variance decisions and that the five findings could be listed in that section. Member Hickey recommended adding the information as section 3.6.3 titled Variance. It was clarified that the official motion for section 4.4 had to do with annual review rather than variances. Bryant Nodine advised the Board to state 3.6.3 as it is in the code: variances will not be authorized unless the Board finds sufficient evidence. MOTION: Member Anderson moved to add the section 3.6.3 Basis for Variance Decisions which would include in its entirety OVZCR Section 1-709 Findings. Member Hickey seconded. Motion approved 5-0. Member Hickey asked for clarification regarding the Board's power to issue restraining orders, and inquired whether a notation should be added to the Rules and Procedures regarding it. Bryant Nodine advised that once an appeal is made, the appeal shall stay all proceedings in the matter. Member Hickey read an excerpt which states, "An appeal to the Board stays all proceedings in the matter appealed from, unless the Zoning Administrator certifies to the Board that in the Zoning Administrator's opinion...a stay would cause imminent peril to life or property. Upon such certification, proceedings shall not be stayed except by restraining order April 5, 2005 MINUTES,BOARD OF ADJUSTMENT 7 granted by the Board." Bryant Nodine confirmed that similar wording is in the code. Member Hickey requested a procedure in which to handle such situations. Bryant Nodine clarified that, should he as the Zoning Administrator declare that a stay would cause imminent peril and that proceedings should not be stayed,the Board has the authority to place a restraining order on him so that the proceedings will be stayed. Member Adler mentioned that a hypothetical example would be helpful. Member Hickey expressed that he would prefer that the Court have the responsibility in such matters. Mr. Nodine noted that by the Board simply not taking action, the Court could still issue a restraining order so that proceeding will be stayed. Member Adler and Member Hickey agreed that an addition to the training manual regarding restraining orders would be prudent. Further, Member Hickey had questions about Board decisions regarding lines of zoning districts, and asked if it should be added to the Rules and Procedures. Bryant Nodine asserted that the code gives sufficient guidance in that matter. Chair Kessler led discussion to the document titled "Desirable Attributes of Board of Adjustment Members". Member Adler noted that Council may draw attention to the attribute which requires Board members to put the interests of the greater good ahead of the interests of the individual. Member Hickey suggested adding to the Evaluation Procedure a section requiring a member of the Board of Adjustment to complete mandated training. Member Adler questioned how a member could evaluate another member's training. Chair Kessler asserted that the Town provides training and that it is a Board member's duty to partake of the required training. Bryant Nodine added that training must be completed for a member's reappointment, but that there is no mandated training for new members before their appointment to the Board. Member Adler observed that the Evaluation Procedure applied only to board members seeking reappointment MOTION: Member Hickey moved to add to the Board of Adjustment Evaluation Procedure an item "e"under Section 2 titled Training that requires a member to participate in and complete mandated training. Member Adamson seconded. Motion approved 5-0. ADJOURNMENT MOTION: Member Hickey moved to adjourn the meeting at 4:30 p.m. Member Adamson seconded the motion. Motion to adjourn approved 5-0. Respectfully submitted, Shirley Gay,Recording Secretary for meeting Kristina Curry, Recording Secretary for minutes