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HomeMy WebLinkAboutMinutes - Board of Adjustment - 10/26/2004 MINUTES ORO VALLEY BOARD OF ADJUSTMENT REGULAR SESSION OCTOBER 26, 2004 ORO VALLEY TOWN HALL COUNCIL CHAMBERS 11000 NORTH LA CANADA DRIVE CALL TO ORDER: at or after 3:00 p.m. ROLL CALL PRESENT: Matt Adamson, Chair Bill Adler, Vice Chair Colleen Kessler, Member John Hickey, Member Bart Schannep, Member MINUTES Vice Chair Adler requested a correction to the September 28, 2004 minutes. On Page 3, Paragraph 1, Line 3, Vice Chair Adler requested that the wording be changed to: "Specific questions from the Board for the applicant." MOTION: Member Hickey moved to approve the minutes for September 28, 2004,with the correction noted by Vice Chair Adler. Request for a second was not requested or made. Motion carried: 5-0. MOTION: Vice Chair Adler moved to approve the minutes for August 24, 2004, Section 1.2. Motion seconded by Member Kessler. 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 two meeting and new items which may include, among other things, the uses of the term"Secretary," and recommendations from staff. Regarding Section 2.5,Vice Chair Adler said he understood Ms. Widero is the Secretary to the Board of Adjustment. Although the Town Clerk staff takes minutes and introduces agenda items,he has always made a differentiation between that role and the role of Secretary(who processes applications, and ensures that agendas are intact, that all needed materials are in place, and that the agenda is made available to the Chair). References made to "secretarial duties" seem to go beyond the scope of the Town Clerk's representative. To his knowledge, Town Clerk staff does not make room arrangements, mail materials, schedule meetings, or organize site tours. Bryant Nodine, Planning and Zoning Administrator, clarified that Town Clerk staff did do those tasks. A Secretary handles everything and the Code states the Town Clerk is responsible for all the duties,but 10/26/2004 Minutes 2 Board of Adjustment Regular Meeting the duties have been divided. Section 2.5 applies to Town Clerk staff duties; Section 2.6 applies to Planning & Zoning staff duties. If there is need for training on scheduling meetings and organizing site tours, that can be accomplished. Member Hickey asked who was responsible for noticing and posting of meetings. Mr. Nodine explained that these duties are required by State law; Planning and Zoning staff does the preparation and mailing and Town Clerk staff does the posting on the web site and at Town Hall. Duties performed by Planning and Zoning will be added to Section 2.6; Town Clerk duties will be added to Section 2.5. Chair Adamson requested discussion of new items or recommendations from the prior two meetings. Member Hickey asked how much time the Board has to hear an appeal. Mr.Nodine explained that the code includes instruction on when the appeal needs to be filed, that there is a standard submittal schedule, and that 60 days would satisfy the submittal schedule and the Board's needs. Clarifying language will be added to Section 2.7 to indicate that"no more than 60 days after submittal these items will be heard by the Board of Adjustment." Vice Chair Adler wanted to ensure that under Section 2.7, it was understood that the Town Attorney or designee will also serve as a parliamentarian for when the Board needs legal direction during meetings. Chair Adamson asked if staff keeps master copies of all the corrections and wording of what has been discussed. Mr. Nodine assured him that documentation is kept. In response to Chair Adamson's question, Mr. Nodine explained that the Board can draft language at the meeting and ask staff to include it in the Rules and Procedures, or the Board can ask that staff bring the language back to the Board. Member Schannep opined that for consistency, staff should be included in the drafting of the language, and that the Board should vote on it once it is returned to the Board. In response to Member Schannep's inquiry, Town Attorney Joe Andrews replied that he was familiar with Roberts' Rules of Order and that the attorney's role of parliamentarian is in case the Chair asks for legal clarification or direction with regard to a motion. He added that it is best if the Chair is familiar with Roberts' Rules of Order, so that the attorney isn't interrupting the meeting. The Town Attorney and/or representative should be reasonably familiar with the Roberts' Rules of Order; if not, they have a book they can refer to. Vice Chair Adler expressed concern that language in Section 3.6, stating"rationale for the majority vote"would require that members voting in the majority declare the reasons for their vote. He would prefer the rationale be expressed, rather than assumed, and encouraged Board members to comment on their vote so the minutes reflect the rationale. Member Kessler restated and supported Vice Chair Adler's concerns. Member Schannep pointed out that Board members' comments on their rationale is included in the discussion portion of the minutes. Vice Chair Adler suggested that language previously stricken from Section 3.9 be re-inserted. Mr. Andrews commented that the language in Section 3.6 is extremely limiting as to what occurs in the minutes. If it is removed entirely and there is 10/26/2004 Minutes 3 Board of Adjustment Regular Meeting concern about what goes forward to the Court, the tapes, minutes, and everything would be submitted to court. The Board could remove the existing language from Section 3.6 and insert the language from Section 3.9 at the end of Section 3.6. Vice Chair Adler recommended Section 3.6 be left as is, and that his suggested wording, "during the vote Board members are encouraged to state the reasons for their vote"be added to Section 3.9. Vice Chair Adler expressed concerns about language in Section 4.2,which states that there must be a denial of some tangible personal or property right. He questioned how an appellant would demonstrate being denied a tangible personal or property right until the project is fulfilled. He added that through the process of public notification, the Town is differentiating between those people who are and are not impacted, and are already creating standing for those people. In the handbook, "standing" is interpreted differently and seems less demanding, while language in Section 4.2 is stricter. He is concerned about someone going through the appeal process and then finding that they don't have standing because they haven't established a tangible personal or property right. Mr. Andrews suggested removal of the word "tangible" and leaving it as "personal or property rights." This language is from case law where a court defined"standing." Difficulty with the interpretation of"standing" is understandable; the courts have difficulty with it. In response to Vice Chair Adler's question, Mr. Andrews said that would be up to a court to decide if someone's quality of life is a right. Vice Chair Adler said his understanding was that it was the Board of Adjustment's responsibility to decide standing. He suggested that prior to making a decision on an appeal, that the Board holds an executive session where the Town Attorney tells the Board whether there is standing. Mr. Andrews indicated that was possible, but the Board would be substituting the attorney's opinion for that of the Board. Vice Chair Adler's concern is that the Board could spend considerable time with testimony on the issue of standing before getting into the essence of the interpretation on a case. Mr. Andrews explained that is what happens in the courts, and suggested the Board could have a vote on standing and then move forward. Vice Chair Adler asked if the issue on standing should be isolated as the first item on the agenda. Member Schannep said he recalled two recent cases in which the Board would have had difficulty in establish standing at the onset. Mr. Andrews clarified that there is a clear difference between a variance and a zoning administrator's interpretation; a variance is brought by the individual who is looking to get some variation on the zoning; the administrator's decision does not necessarily affect the project. Vice Chair Adler said he wanted to ensure Board members are comfortable with their responsibilities regarding the establishment of standing, and that he was seeing criteria. He said the Board could encounter a situation where a member was absent, and due to a tie vote, the Board would be unable to move forward because of an inability to determine standing. Mr. Andrews commented that standing is a complex issue, and that a tie vote would cause the appeal to fail and the appellants could appeal in Superior Court,where the court would determine if the appellant had standing. Vice Chair Adler asked if the Board could develop rules on what does not constitutes standing. Mr. Andrews replied that the Board could break the matter down and deliberate standing first, or the Board could hear the entire case before deciding standing. In response to Vice Chair Adler's question, Mr. Andrews said that precedent set in prior cases could be used against the Board,particularly if it could be shown that the Board acted differently on similar issues. Vice Chair Adler 10/26/2004 Minutes 4 Board of Adjustment Regular Meeting suggested that any time the Board has an appeal of an administrator's interpretation, the minutes of any previous similar case or appeal should be included as part of the packet so that prior determinations are made aware to the Board. He added that the Board is consistent on variance decisions,but consistency is more difficult in the appeal process. In response to Chair Adamson inquiry, Board members indicated that they wished to remove the word"tangible" from Section 4.2. Member Hickey said he supported Vice Chair Adler's position that public notification excludes people that the state law says can be involved,while others can appeal a decision. He supports the Town Attorney's assessment that determination of standing is a difficult procedure to set out in a few sentences. He would be more comfortable if standing requirements were established, and would prefer to have people have access to the Board as the first step and if they don't have standing the Board can use that to deny. Member Hickey gave an example where the owner of a parcel of land builds a structure and leases it to a restaurant. He asked who the proper person to make the appeal was. Mr. Andrews replied that both the property owner and the lease holder have property rights,but that an employee of the lease holder would not have a property interest. Mr. Andrews read a State law excerpt, "The property right is a right in land or right in property," and "Appeals to the Board of Adjustment may be taken by persons aggrieved or by any officer, department,board, or bureau of the municipality affected by the decision of the Zoning Administrator." Mr. Andrews suggested Section 4.2 language be modified to read, "...must be any officer, department,board, bureau of the municipality, or aggrieved party." Member Hickey maintained that this did not address the issue of an appeal based on an error. His understanding is that anyone can appeal an error. Mr. Andrews explained that the person who alleges the error has to be somehow aggrieved, and that persons other than"aggrieved parties" should probably be included as additional standing holders. Vice Chair Adler said he understood the Board had previously acknowledged the need to have a separate application form for appeals, and that language addressing the standing requirement be included on that application form to inform the applicant. Mr. Andrews cautioned that regardless of the written notification, the Board might still have to explain it, but language can be added to try to forestall that explanation. Vice Chair Adler expressed concerns that if the Board has not taken steps to inform the applicant(s) of the application requirements, the applicant(s) could sue the Board members individually for having exceeded authority. He asked how we could be sure that that was unlikely to happen. Mr. Andrews replied that the Board cannot be totally assured that a lawsuit isn't going to be filed,because the Town can always be sued. Mr. Andrews responded to Chair Adamson's question, by stating that generally the Town would provide legal representation, should individuals on the Board be sued,but he could not definitely say that the Town would provide legal representation in cases where the Board committed an egregious violation. 10/26/2004 Minutes 5 Board of Adjustment Regular Meeting Chair Adamson summarized that in Section 4.2, the Board wants language indicating that, in addition to an aggrieved party, other persons may also have standing, and wants to remove the word"tangible." Vice Chair Adler,referring to Section 4.3, said there was differing language on this subject in the Handbook and in the CPI material. His understanding of ex parte communication was"... communication with a member of a Board by someone with business before the board." When asked to clarify, Vice Chair Adler replied that it was someone who has actually filed a case, and that communication with another interested party did not constitute ex parte communication, since they are not a party to the application. Chair Adamson said that in the given example, a Board member could be influenced. Mr. Andrews explained that the problem with not including other unknown parties is that an applicant could potentially have a"friend"talk to Board members in advance to prejudice their decision, so that when the applicant appears before the Board the applicant is relatively assured that the request will be approved. He added that because this Board is quasi-judicial and expected to be more available to outside influence, a party is reasonably more likely to prejudice a decision outside of the hearing. He further added that"ex parte" can be whatever the Board decides to define it. Member Schannep, referring to a copy of an"ex parte" definition published by the Arizona Commerce Department, indicated that it identified parties as those who are currently, or soon to be, involved. He opined that someone complaining to a Board member at a social function would differ from someone asking a Board member for advice or how to go about an application. Chair Adamson suggested shortening the sentence to read "Ex parte communication is communication between any number of Board members that is reasonably likely to prejudice a decision by the Board,"thereby leaving it up to the Board member if a communication is likely to be prejudicial, and to end the conversation or report it to the Board when it next convenes. In response to Member Schannep questioning if this was a realistic solution, Chair Adamson said in his case it was because he didn't think he would talk about any cases outside of this room, because of the quasi- judicial nature. Member Schannep said it might be hard for member to know when they are crossing the line of sharing views or discussing Board or Town business. Chair Adamson pointed out that the language does read "reasonably likely to prejudice a decision by the Board,"which is subjective to the individual Board members, and is not completely limiting. Vice Chair Adler restated his preference for either the CPI handbook definition or the Arizona Commerce Department definition, which reads, "An ex parte contact is a communication from one of the parties involved in an application to a member of the Board of Adjustment or other deciding body." Vice Chair Adler explained that after his testimony at a DRB meeting, a member of the Planning Department indicated that his (Adler's) comments dealt with an issue that had been decided by an interpretation. When then-Town Attorney Langlitz told Mr. Adler to recuse himself because he (Adler)had spoken publicly on a matter which was likely to come before the Board of Adjustment, Mr. Adler pointed out that wasn't what was said, there was no application or case before 10/26/2004 Minutes 6 Board of Adjustment Regular Meeting the board,but Mr. Langlitz's interpretation prevailed. Vice Chair Adler said Board members should be able to avoid communication with people who are involved in an application before the Board. He added that if there are no legal objections,he suggests that Section 4.3 reflect the language in the Board handbook, which he had handed out to the Board members. Mr. Andrews said there was no legal objections, and reiterated his cautionary comments about the possibility of having an applicant send a third person to influence Board members. He elaborated that under the Board's proposed definition, a third party meeting with Board member individually is not ex parte communication,but is a form of de facto ex parte communication. Vice Chair Adler said he wasn't uneasy about handling the type of example that Mr. Andrews outlined and recommended that Section 4.3 define"ex parte" consistent with the language in the Board of Adjustment handbook under"Communications and Ex Parte Contact." Vice Chair Adler was asked to read the applicable section, "An ex parte contact is a communication from one of the parties involved in an applicable to a member of the Board of Adjustment or other deciding body." Vice Chair Adler said that as Board members, they all had to be cautious about someone who is unknown and misrepresents who they are and of someone who probes,but that is a judgment issue. The Board agreed that the aforementioned change be made to Section 4.3. Vice Chair Adler recommended that a policy about staff reports be added to Section 3.8 (g),by the addition of a sentence that states that a staff report is limited to the facts related to the property and conditions on the property or adjacent properties, and asked that Mr. Nodine come up with the appropriate language. Vice Chair Adler recommended that as the changes are submitted for Council approval, that the Board attach a communication requesting a joint study session to explain the Board's position on the rotating chair, and on the term limit change. Mr.Nodine recommended this be in the form of a letter from the Chair, based on the Board's decision. Mr. Nodine said he would accept the changes to the Rules and Procedures where there was no discussion, and would identify any new changes by using strike-outs for deletions and by underlining any new language. The Board indicated that was sufficient. In response to Vice Chair Adler inquiry about where the evaluation procedure, was referenced, Mr. Nodine replied that it was referenced in Section 2.2. AGENDA ITEM# 2: DUTIES AS DEFINED IN ARTICLE 1-7, AND ANY RELATED SECTION, OF THE ORO VALLEY ZONING CODE REVISED. Discussion and possible action recommending code changes related to the duties of the Board. Grading Waivers and Conditional Use Permits are two items that have specifically been identified for consideration. Chair Adamson asked for discussion and possible action recommending code changes related to the duties of the Board. Vice Chair Adler said he had asked for a recommendation to Town Council that they consider amending the Zoning Code and, in a previous memo, had recommended that 10/26/2004 Minutes 7 Board of Adjustment Regular Meeting sections of the code (specifically grading exceptions and conditional use permits)be transferred to the Board of Adjustment for determination. He added that this would also be part of the proposed joint study session so that the Board could explain its rationale, but first the Board needed to agree whether that should even be proposed. Vice Chair Adler said that many variances (Golf Course Overlay District, Sign Ordinance, and Riparian Protection Ordinance) that should come before the Board of Adjustment are instead being granted by other advisory boards and by Town Council, and that Zoning Code criteria is not followed by the other granting bodies. Vice Chair Adler gave a recent example in which the Planning and Zoning Commission recommended approval of a Conditional Use Permit to B. P. Magee (an auto repair retail service that was extraordinarily noisy and adjacent to residential neighborhoods) without any data, statistics or substantiation being provided with regard to noise mitigation. Mr. Nodine clarified that the approval on that project's Conditional Use Permit was based on a significant noise study/report that was done and presented to P&Z and Town Council. Vice Chair Adler said that noise report was submitted to the Council but not to the Planning Commission. Vice Chair Adler said that as commercialization of the Town continues to expand, conditional use permits will become controversial, more difficult to mitigate, should be held to a higher standard, and the Board of Adjustment is the proper board to handle that. He added that the decision is appealable through Superior Court, and not through the political process. Vice Chair Adler recommended the Board suggest that a change of this kind is in the interest of the community. Member Schannep pointed out that it is not normally within political nature to give up power, and if the Board made the argument that these responsibilities should be brought away from other boards, there needs to be substantial past, specific examples of where these approvals were given and were outside of the scope of the board. Member Schannep's second point was the question, which he said would best be answered by Vice Chair Adler, on whether Vice Chair Adler was the best one to present this, or might it be perceived by people on other boards that even within politics we are trying to wrestle some power away. Vice Chair Adler replied that he understood how things could be perceived and that he didn't feel it was a power grab for the Board of Adjustment,but a matter which was in the best interest of the community and an attempt to protect the integrity of the neighborhoods. He added that he would make every effort to do the research and gather up documentation. Member Schannep cautioned that if a request is made to conduct a joint session with Mayor and Council on this issue, the other boards would likely be invited. Vice Chair Adler said that was fine, and opined that if nothing else was accomplished except to get attention focused on this issue, then perhaps something would be accomplished. Vice Chair Adler again referred to the B. P. Magee Conditional Use Permit approval, by stating that when he browed through the report he had several questions which were never brought forth by the Planning and Zoning Commission. Chair Adamson asked how to proceed in asking for a joint session with the Council. Member Kessler said she did not see any harm in discussing it, although she didn't know if it would go anywhere. Member Schannep said that he agreed with Kessler, that he didn't see groups willing to give up power. 10/26/2004 Minutes 8 Board of Adjustment Regular Meeting Member Hickey requested clarification on whether a conditional use permit had a likeness to a variance. Vice Chair Adler said no, that it was a use that could be conditional in terms of its approval; in the Code it indicates criteria that needs to be considered by the deciding body. Member Hickey asked if in a variance there are also things that they have to present to prove the point that the variance should be granted. He explained that in his view, the BOA is structurally set up to review an application for something not common on the use of the property, which would bring the conditional use more in the BOA's area of review than any other body. He said he supports Vice Chair Adler's viewpoint. Mr. Nodine, in response to Chair Adamson's question, clarified that a conditional use permit approved by another body(such as the Planning &Zoning Commission or Town Council) could not be appealed to the Board of Adjustment,which is where conditional use permits go. Mr. Nodine added that on conditional use permits, Article 3.2 lists the type of findings (hazards, inordinate amount of traffic); those are uses that aren't permitted in the district but may be permitted through a review process and through meeting some conditions. He cautioned Board members to look at the State law related to Board of Adjustment duties, as it does state that the Board of Adjustment may not make any changes in the uses permitted in any zoning classification. This issue would have to be looked at more closely to see how it relates to conditional uses because they are not really changes; they are uses that possibly allowable if they meet certain conditions. Member Schannep asked if the conditional use permit on the site of the new bank at First and Oracle was required because the bank had a drive-through. Mr. Nodine explained that banks are a conditional, not a permitted use,whether they have a drive-through or not, and the only way they can be permitted in that district is if they are a non-retail type facility—if it's a mortgage broker or other professional office of some type. He added that if there is a retail component, the Code calls them out as being conditional uses, which may be related to the drive-through,but it isn't just if they have a drive-through. Member Schannep asked if a better example would be a Jack-In-The-Box wanting to put in a drive- through. Mr. Nodine explained that with Jack-In-The-Box there is no question that it is going to be a conditional use permit because most of their service is with disposable materials (plates, utensils), but if it were a regular sit-down restaurant wanting to have a drive-through component, then the drive-through generates the conditional use. Chair Adamson asked if it would be beneficial to have a report back for next meeting with regard to use permits. Mr. Andrews explained that, under State law,the Board of Adjustment gets to decide variances and decisions of the Zoning Administrator under the right conditions. Anything else is up to the Mayor and Council as to whether or not they want to delegate further power. He added that the Board would want to come up with the agenda items they wished placed on the study session. Vice Chair Adler said he would do research, provide case studies to further support his position, and report to the Board when he has the information. Mr. Andrews cautioned against saying that other board and commissions abuse the scope of their authority, because as soon as somebody reads that, they interpret that somebody has indeed abused their scope of authority, and that type of assumption could cause problems for the Town. 4 1 M 10/26/2004 Minutes 9 Board of Adjustment Regular Meeting Chair Adamson asked if the Board was going to establish the agenda today. Vice Chair Adler said that only on the Rules; he suggested that the Chair prepare a communication requesting a study session. Discussion about the ordinances that would amend the Zone code will continue in future meetings. PLANNING AND ZONING UPDATE Mr. Nodine presented the Planning and Zoning Update • Citizen Planning Institute classes have started,with 49 people signed up. Members from DRB, BOA (Chair Adamson) and P&Z were present. Meetings will be held in the Council Chambers, CPI members are invited to attend. • The General Plan Revision Committee has had three meetings, and is working at updating the plan. A public meeting will be held on November 16th. Member Hickey suggested wording changes to the Code, which the Board would discuss and make recommendation on whether to pass this on to Council, and asked if they wanted to discuss. Mr. Andrews explained the item was closed, that discussion of that issue would be improper, and that the Board would have to re-open the item and re-discuss. Chair Adamson said that since Mr. Adler is going to find additional cases, they could discuss this in the future. Mr. Andrews said the Board could re-open the item,but it appears board members would like to get more information to add on to that item at a future date, once Mr. Adler has gathered case studies documentation. Chair Adamson said that they could either table it or make it an agenda item for the next meeting. ADJOURNMENT MOTION: Member Hickey moved to adjourn at 4:45 p.m. Vice Chair seconded the motion. Motion carried, 5-0. Respectfully submitted j",„. Lf2a_ 1 • r Arinda Asper Recording Secretary