Loading...
HomeMy WebLinkAboutMinutes - Board of Adjustment - 11/23/2004 MINUTES ORO VALLEY BOARD OF ADJUSTMENT REGULAR SESSION NOVEMBER 23, 2004 ORO VALLEY TOWN HALL COUNCIL CHAMBERS 11000 NORTH LA CANADA DRIVE CALL TO ORDER: at or after 3:02 p.m. ROLL CALL PRESENT: Matt Adamson, Chair Bill Adler, Vice Chair Colleen Kessler, Member John Hickey, Member Bart Schannep, Member MINUTES MOTION: Vice Chair Adler moved to approve the minutes for October 26, 2004. Motion seconded by Member Hickey. Motion carried: 5-0. AGENDA ITEM# 1: BOARD OF ADJUSTMENT RULES AND PROCEDURES Discussion and possible action on the Rules and Procedures to incorporate recommendations from the last three meetings. Vice Chair Adler said that if there were no objections, he would blend elements corresponding to Item #2 into the discussion of Item# 1. No objections were voiced. Under Section 1.1 —General, Authority—Vice Chair Adler asked that reference to A.R.S. § 9-462.06 be added to Section 1.1, so it reads "...including but not limited to A.R.S. § 9-461, A.R.S. § 9-462.06, and all definitions." Member Hickey clarified that Section 461 is Definitions, Section 461.01 is Planning Agency Powers and Duties, and Section 462 is Municipal Zoning Definitions. Under Section 2.2—Organization, Evaluation of Performance—Vice Chair Adler suggested that the wording be amended to read"Members seeking reappointment shall be evaluated using the attached Board of Adjustment evaluation procedure." Under Section 1 -1 —General, Authority—Member Hickey pointed out that Board duties are specific to the Zoning Code and the Board needs to address what the Board would like the Zoning Code to say specific to that. He suggested that this issue be made an agenda item for a future meeting. Chair Adamson made note of that request. Under Section 2.6—Planning and Zoning—Member Kessler suggested that subsection D be changed to read "Distribute to the Board by staff...", and that subsection F be changed to read "Identify separately each individual variance...," so that all listed duties start with an action verb. 11/23/2004 Minutes 2 Board of Adjustment Regular Meeting Under Section 2.6—Planning and Zoning—In response to Member Kessler's question, Ms. Delores Widero said that subsection D's timeline of getting materials and agenda to the Board at least one (1) week prior to the meeting date was a realistic timeline. Vice Chair Adler pointed out that if an agenda item involved visiting a site, the Board needs the materials with sufficient time to visit the site, and he would therefore be hesitant to change the timeline requirement. Under Section 3.1 —Meeting, General—Vice Chair Adler suggested it read "All meetings will be run utilizing Robert's Rules as a guide." In response to Chair Adamson's question, Town Attorney Joe Andrews indicated there was no objection to adding the wording"...as a guide." Under Section 3.2—Meetings, Regular Meetings—Vice Chair Adler suggested adding the meeting times, and pointed out that in the past it was been mentioned that a 3 PM meeting time was too early for working people to participate. Mr. Andrews said there wasn't anything precluding the Board from holding meetings in the evening, and suggested the Rules and Procedures note the meeting time as "...at or after 3:00 P.M." to give Board members more flexibility with regard to the meeting time. Under Section 3.6—Meetings, Quorum and Voting—Vice Chair Adler suggested language having to do with reconsideration be added to this section. At the Boards & Commission conference he recently attended, he learned that most Boards of Adjustment members represented all had provisions for reconsideration. His suggested addition read"Reconsideration may be accomplished in the following manner: 1) a Board of Adjustment member voting in the affirmation may initiate a motion to reconsider the issue either at the meeting where the affirmative action was taken in the issue or at the meeting immediately following, and by majority vote of the Board the matter would be reconsidered." The Board discussed the problem with hearing a reconsideration in a timely manner, since the Board does not always meet monthly. Chair Adamson clarified that a reconsideration would generate a meeting for the next month, whether there was a case or not. Member Schannep questioned how this would work; Vice Chair Adler said that one of the persons voting "no" could initiate a motion to reconsider and the motion could be heard at that meeting or at the next meeting. Member Schannep asked if this motion would be based on information made available after the vote or because the person making the motion wants to convince the other members. Vice Chair Adler said those were some of the reasons,or if the person claims there was an error in judgment. Mr. Andrews concurred with the explanation given and clarified that Roberts' Rules, which the Board follows, uses language that refers to "the prevailing side of the motion" and that might be appropriate wording. Vice Chair Adler agreed that "prevailing side"would be better language, and mentioned a past ruling involving a livestock issue where the applicant requested reconsideration. Chair Adamson said that the difference here is that reconsideration would be initiated by the Board, rather than the applicant, as in the livestock case. Vice Chair Adler said at the conference,many of the Boards represented have a reconsideration option in their rules, and since this Board has gone through a reconsideration once without having a provision, there ought to be a provision. Chair Adamson said it was wise to include a reference to reconsideration in the rules. It was agreed that it would be included under"Quorum and Voting." In response to Member Hickey's question on how a reconsideration request affects the 35-day clock, Mr. Andrews explained that a reconsideration request stops the clock, and if the reconsideration is granted, the Board goes through the case again. Once the motion to reconsider goes forward,the vote is taken and the case comes up almost from the beginning, so you restart the clock. Failure to restart the clock for a reconsideration appeal would be a due process violation, The Board could include language stating that if the motion to reconsider is granted, then the 35-day appeal window would 11/23/2004 Minutes 3 Board of Adjustment Regular Meeting begin anew, otherwise it starts at the end of the first one. In response to Member Hickey's request, Mr. Andrews offered to come up with some language for the Board to look at. Member Schannep said that, looking at this from the applicant's viewpoint, if the initial vote didn't go as the applicant hoped and the applicant wanted to start the appeal process, the required time extension (restarting of the clock) might place the applicant at a disadvantage. In response to Member Hickey's comment that the 35-day clock started upon "service" and"service" isn't defined, Mr. Andrews responded that service is defined by statute in the Rules of Civil Procedures, when a party receives notice of whatever action is coming forward (service of process) so he would interpret service by registered, returned receipt mail or delivered by a process server. Chair Adamson asked if the Board makes a decision that is in contrast to what the applicant wants and they intend to appeal, does the Board's decision constitutes service. Mr. Andrews replied that the applicant would be served notice with the Board's decision. Chair Adamson asked if that decision would restart the clock or would the Board have to send written notification. Mr. Andrews deferred to Mr. Nodine, who said that the Board's decision essentially acts as a service; the vote is considered service. Member Schannep restated the scenario of a dissatisfied applicant wanting to have an appeal heard within the 35-day mark, but the Board isn't scheduled to hear the appeal for two months at the next regular meeting. Mr. Andrews explained the item would be scheduled for the next month's meeting. Member Schannep said that even if the reconsideration is scheduled for the following week, if the Broad denies the appeal, the applicant is denied the ability to appeal to Superior Court within the 65 days. Mr. Andrews replied that a delay preventing the applicant from appealing to the court would be a potential due process problem and the applicant could go to the Court anyway. Mr. Andrews said staff would draft some language and would return that to the Board. Chair Adamson clarified that the language would be added to Section 3.6. Under Section 3.9—Record of Consideration in Board Action—Vice Chair Adler pointed out that in the minutes the Board agreed to use language stating that Board members are "encouraged"to state the reasons for their vote. There were no objections to making this change. Also under Section 3.9—Record of Consideration in Board Action—Vice Chair Adler,based on conference information, asked to add language that states that a decision on a variance application is based upon all required findings being met. He also suggested adding language about an appeal, to read "A decision on an appeal is based upon the Board of Adjustment's determination as to the correctness of the interpretation." Vice Chair Adler pointed out that on previous discussions about appeals, the Board has made decisions on whether the Administrator's interpretation is arbitrary and capricious, rather than whether the interpretation itself is correct. At the conference, it was made clear that other Boards hear appeals and judge whether the interpretations are correct, rather than whether the Administrator decision was arbitrary or capricious. The Board's responsibility is to either affirm or to make a different interpretation, which has not been the Board's direction thus far. Member Schannep suggesting using the Eckerd's case as an illustrative example. In that case the Administrator gave an interpretation of land use and discussed overlays. Member Schannep didn't believe it was the Board's role to judge if the Administrator's interpretation is correct, and it is Administrator's job to interpret rules and regulations, land uses and intentions. He questioned whether the Board has the tools to judge if the Administrator's interpretations are correct. Vice Chair Adler said that it would be much tougher to do that; in the Eckerd's case it would have to do with what 11/23/2004 Minutes 4 Board of Adjustment Regular Meeting constituted a free-standing pad. The Board would hear the evidence presented and discuss whether the correct interpretation of the Zoning Code was applied. He said was fascinated by the opportunity of being charged with making that determination,because the Board's job is to interpret the Zoning Code on variance requests to study the Zoning Code and judge whether the interpretation of the code is correct. Member Schannep questioned whether Mayor and Council would agree. Vice Chair Adler stated that at the conference he had asked specific questions about Boards' responsibilities, and the response he received was that it was the responsibility of the Board to judge the correctness of the interpretation, which can be appealed just like any other action of the Board. He acknowledged that it would be difficult and time-consuming. Member Schannep said it would take several study sessions before the Board even got to the case; the Administrator would need to instruct the Board on how he came to this interpretation and the Board would have to double-check on what his assumptions were in making that interpretation. Vice Chair Adler said that an interpretation is a longer case because there are more questions of the Administrator, more prep work, and a lot of back and forth with the Administrator. Mr. Andrews, in response to Vice Chair Adler's request for his opinion, said that the arbitrary, capricious and abusive authority standard was decided before his time with Oro Valley, and explained that the Board, in rewriting their rules, can choose to go with the standard Mr. Adler has presented or with the standard the Town has developed over time; what is put in the Rules is what the Board will have to live with. He added that he wasn't offering an opinion on which standard was better. Vice Chair Adler said that at the conference, the stated responsibility was given as a requirement, not as a matter of choice. Chair Adamson asked how often this type of situation would arise. The Board's opinion was that it about once a year. Member Kessler asked if the person requesting a re-interpretation would need to be an aggrieved party. Vice Chair Adler said that was a different thing—the applicant would have to be an aggrieved party to gain standing but once they have standing and the Board hears the case, it is to decide whether the Board's interpretation is the same as the Administrator's. He added he had information to share later with regard to standing but for now he was focusing on the issue of the scope of the Board's authority. He said that if the Board is uncomfortable with this proposed change, he would suggest having either Frank Cassidy(the presenter at the conference) or someone from the Department of Commerce come speak to the Board. Most Boards understand their roles to be different than what we've understood it to be, and he has never been comfortable about deciding if an Administrator's interpretation was arbitrary, as it seems too critical, whereas looking at the Zoning Code, there could be a reasonable disagreement on an interpretation. He acknowledged that a change of responsibilities would place extra burdens and pressures on the Board, but that these types of decisions were important. Vice Chair Adler, in response to Chair Adamson's question about the standard used in the past on an appeal on an interpretation, said that the decision was based on whether the Administrator's process of arriving at the interpretation was arbitrary, capricious, or abusive. Without exception, the Board has never found that to be the case while he has been on the Board. In response to Chair Adamson's question, Vice Chair Adler said that the five standards wouldn't apply to an appeal; instead, the Board would judge the interpretation on its merits. Based on the conference information, the applicant could appeal to the Court and a judge would decide if the decision was capricious or arbitrary. Chair Adamson said he agreed with Member Schannep in that he did not know how the Board could do that in a timely manner. Member Schannep stated that for illustrative purposes, suppose someone says that there is a 30-foot setback before an applicant can build a swimming pool, but two streets down it's a 20-foot setback. If the Board questions the Administrator's interpretation, at what point does the Board begin to question the original overlay or PAD. Vice Chair Adler replied that the Board 11/23/2004 Minutes 5 Board of Adjustment Regular Meeting could stay with the approach that has been used historically, but he believes some relevant guiding language ought to go into the Rules and Procedures. He suggesting adding "In the process of determining an appeal of an interpretation, the Board of Adjustment may arrive at a different interpretation or the same interpretation," and the Board shouldn't be precluded from doing this, if the majority decides that is the best course of action. He said that he felt the Board shouldn't be limited to deciding whether the Administrator's decision was arbitrary or capricious. He also suggested the Board arrive at some compromise, so that a reader of the rules understands that a decision on an appeal is different than an opinion on a variance, that they are very different, as a variance does not set precedent but an appeal of an interpretation does. In response to Member Schannep's question, Mr. Nodine explained that if somebody disagrees with the Administrator's decision, the Board of Adjustment is the first stop, on appeals of interpretations as well as any decision made by the Administrator. Mr. Nodine said that the reason the Board doesn't get those types of simple arguments is because most people try to look at it from the point of view of what Mr. Adler is saying; they take the first look at it and filter it themselves,but any decision can be interpreted. Member Schannep said that if the Board is the first stop doesn't get very many appeal requests, he believes Vice Chair Adler makes a compelling case on something that the Board has not been focusing on, and encourages Vice Chair Adler's position. Member Kessler, referring to the Eckerd's case, commented that the applicant was denied because he didn't prove that he was an aggrieved party. Member Schannep agreed but cautioned that aside from that, the Board accepted the Administrator's interpretation. Under this proposed change the Board would question the Administrator's or department's interpretation and the applicant would have to prove standing before getting to the point of interpretation. Vice Chair Adler suggested the language, "A decision on an appeal is based upon the Board of Adjustment's determination as to the correctness of the interpretation." Member Schannep would change "correctness"to "reasonable"or a"reasonable man's thought is..." then this should be the interpretation. Vice Chair Adler offered the alternative language, "A decision on an appeal of an interpretation may be arrived at by the Board of Adjustment by affirming that the Administrator's interpretation or by determining their own interpretation." Member Hickey suggested adding language stating that if an applicant claims a decision was arbitrary and capricious, the Board shouldn't consider it. The Board should look strictly at the facts of the case, what the applicant says, and whether that contradicts with what the Administrator says. Member Schannep said that it would have been difficult on the livestock case because the applicant's point was that it was arbitrary. Vice Chair Adler stated his proposed language avoids the use of the terms "correctness," "arbitrary," and "capricious" and allows the Board to either affirm the Administrator's interpretation or arrive at another interpretation. He added he wants to ensure that current and future Board members understand that on an appeal of interpretation where standing has been decided, their obligation is to look at the interpretation on its merits. Board members agreed they wanted to include that language. Mr. Andrews stated that staff could come up with the language from Mr. Adler's notes. Under Section 3.3 — Special Meetings—Member Kessler questioned the meaning of the first sentence and a discussion ensued. Mr. Nodine said he would re-write the section, and explained that its meaning was that the Chair, or at least two members, can ask the Secretary(Dee Widero) to put an item on the agenda, or it can be scheduled at a meeting. Mr. Andrews cautioned that if a quorum got together and decided they wanted a meeting, that means they met outside of a meeting, so the wording should read, "or at least two members." 11/23/2004 Minutes 6 Board of Adjustment Regular Meeting Under Section 4.2—Standing for Appeals of Decision—Vice Chair Adler said that, based on conference content, in deciding the issue of standing the Board is to lean toward hearing a case rather than not hearing it, and suggested adding language to the Rules stating "Unless standing is clearly not achieved, the Board of Adjustment should lean toward hearing a case rather than not hearing the case." Member Schannep said that theoretically the Board could be subject to mob rule, if 40 people showed up, unhappy about an already-approved Circle K down the street, that would imply that the Board must listen to them, rather than only hearing the case based on standing or another valid reason. Vice Chair Adler said there must be some personal or property right being denied, and suggested where there is room for benefit of a doubt, the doubt goes towards hearing the case rather than not hearing it. Member Schannep said that an appeal must be based on some type of standing, so that the Board isn't subjected to listening to a case where standing cannot be proven. Vice Chair Adler said that if it is a clear-cut situation and the five Board members agree to deny standing, then that is it. But, where it is not clear-cut and we don't vote, it defaults to hear the case. A discussion ensued about the Board's requirement to vote regardless of whether there is standing. Vice Member Adler said that there may be some fuzziness and the applicant may feel like he's been denied and some Board members may not be entirely clear on that. He said the Board's tendency needs to be to hear the case and suggested that clarification language be included. Chair Adamson said he was content with the language in Section 4.2 as it is, and questioned the wisdom of amending it. If standing becomes an issue and he decides that the Board ought to vote on whether there is good standing, if no one makes the motion or nobody seconds the motion, then by default the Board is not going to hear it. Member Kessler said she didn't see any sense in dissecting an interpretation if we don't all agree there is standing. Member Hickey, offering an example where the Zoning Administrator is in agreement with the property owner but a neighbor disagrees with the approved decision, asked if the neighbor can appeal to the Board if they show reason (i.e.,property values are down, Zoning Administrator made a error). Mr. Nodine responded that the only time the Board has refused to hear an appeal has been when the time limit was not met. We ask that the applicant provide a letter explaining what they are appealing, and if the required timeline is met, they can appear before the Board. Mr. Nodine added that staff is adding more information on standing to the application, but there haven't been any appeals since that change. Member Hickey asked if he was correct in understanding that there was nothing in the language as written that would change any of the things that staff does about allowing these appeals. Mr. Nodine said that was correct, this is really a board decision. Member Hickey said he is in support of hearing an appeal rather than not, although he also does not want to hear 15 to 20 appeals per month. Vice Chair Adamson and Member Kessler both opined that they didn't think language needs to be added, as someone is going to make a motion to the effect that a specific case should not be heard because there is no standing, and if there is no support from their fellow Board members, then it gets to move forward. Vice Chair Adler asked that for the benefit of future Board members, the Rules and Procedures include language stating that during the process of determining standing the Board's tendency should be to hear a case rather than not hear it. In response to Member Hickey's question, Mr. Nodine responded that the Board has the decision to hear or not hear a case,but it has to be an explicit decision based on the standing issue or on the merits of the case. Vice Chair Adler commented that staff's acceptance of an application does not mean that 11/23/2004 Minutes 7 Board of Adjustment Regular Meeting they have determined standing. Member Hickey asked for clarification on whether the Board would always review a case, as there might be other functional things wrong with what the person is presenting beside whether they have standing. Vice Chair Adler offered the example of an appeal of the Administrator's interpretation that a re-vegetation bond shouldn't be released. The critical question was who the applicant represented, herself or the homeowners' association, as the homeowners' association might be able to make such a claim, but as an individual she might not. That appeal was withdrawn, so it was never heard. Mr. Andrews suggested language that says, "The Board will err on the side of hearing a case based on standing,"which means in the event standing is close, the Board is encouraged to err on the side of hearing the case based on standing. Member Schanepp said he felt those were wasted words because if it was that close, all that needs to happen is for someone to make a motion saying that there isn't standing and to discuss and vote on it. Vice Chair Adler said he would like to see those words in there for the benefit of future Board members. Under Section 4.2— Standing For Appeals of Decision—Member Kessler suggested the additional of the language "...a decision or an interpretation..." as a reminder that it might be an interpretation as well as the decision. No opposition was voiced. Under Section 4.3 —Ex-Parte Contacts—Chair Adamson said the first sentence should read "Both members shall..." No comments made regarding Sections 5 or 6 or the Board of Adjustment Evaluation Procedure. MOTION: Vice Chair Adler moved to forward these proposed rules and procedures, as amended today, to the Mayor and Council, with a cover letter authored by the Chair, requesting a joint study session with the Mayor and Council, specifically highlighting some of the rules and procedures we are proposing that are unique to the Board of Adjustment. Motion seconded by Member Hickey. Motion carried: 5-0. AGENDA ITEM # 2: VICE CHAIR ADLER WILL REVIEW NOTES FROM THE BOARDS AND COMMISSIONS CONFERENCE. Vice Chair Adler offered his notes from the 2004 Boards & Commissions Conference. He made specific reference to: • Interpretation: Standing: Adjacency of a property owner that borders the subject property automatically achieves standing. • Variance Standards: Pre-existing improvements are NOT conditions unique to land. If a homeowner buys a lot with an existing home and comes to the Board of Adjustment for a variance to the setbacks to put in a pool, but the house does not allow it and creates a hardship, this is NOT a condition of the land. State law talks about land as referring to topography, surroundings, slopes, and drainage as conditions that relate to the land. The Board had never addressed whether a pre-existing structure or improvement was unique to the land. At the conference, it was made clear that pre-existing structures should not be considered a condition unique to the land. Vice Chair Adler said that if Chair Adamson warrants it, the Board can agendize discussion on this issue at a future meeting. • Expanded Role: Most other Boards of Adjustment have duties beyond what we do, and have cases before them every month. He said he believes this Board has fewer cases than is typical 11/23/2004 Minutes 8 Board of Adjustment Regular Meeting because variances are being issued elsewhere. He reiterated that if there is success in getting a joint study session with Mayor and Council, he intends to raise the question, because the Board of Adjustment is the mechanism by which the Zoning Code's integrity is protected. State law gives the Boards of Adjustment the authority to judge variances; if variances are being taken away from the Board and issued by other Boards or Commissions, then that's an"illegal delegation of authority." • Vice Chair Adler referred to the copy of the PowerPoint presentation made at the conference. Title 9 refers to Towns and Cities, Title 11 refers to Counties. PLANNING AND ZONING UPDATE Mr. Nodine presented the Planning and Zoning Update. • The Oracle/First Improvement District has been successfully initiated, after the fact of some of the roadway improvements being started. • The La Cholla annexation is still in process; a draft version of the airport overlay district is being reviewed. The airport is looking at it as something that would protect them from future encroachment by development; they feel that protection is key to their coming into the Town. • The Commercial Code has gone back to the Council for a study session, and to the Commission for a study session; the Commission has asked for another study session and the Council will be asking for study sessions afterwards also. • The other Codes that are in process (recreation trails, crime prevention through environmental design) are rough drafts; our next direction is to initiate a notification quote that would include notification for Board of Adjustment as one of the considerations. It has been initiated at the Commission; we have been asked to bump that up and we are going to try to get to it within the next month. • The General Plan Revision Committee is still meeting. The results of those committee meetings and of an open house that was held a week ago are both on the web site. You can get to them through a link on the Town web site front page, or you can go directly to the General Plan web site, which is www.update2020.com. We keep a running report of the meetings on that, which is up to date within about a week. • The La Canada widening is scheduled to be complete approximately in June. • There is an intention to amend the Zoning Code having to do with outdoors storage and display. Part of this came forward as part of the Commercial Code; the second part is actually lower on the work plan and so we haven't gotten to it yet. ADJOURNMENT MOTION: Member Kessler moved to adjourn at 4:42 p.m. Member Hickey seconded the motion. Motion carried: 5-0. Respectfully submitted )/ 'I'll 'nda Asper Recording Secretary