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HomeMy WebLinkAboutMinutes - Board of Adjustment - 1/28/2003 MINUTES ORO VALLEY BOARD OF ADJUSTMENT JANUARY 28, 2003 ORO VALLEY TOWN COUNCIL CHAMBERS 11,000 N. LA CANADA DRIVE CALL TO ORDER: 3:03 p.m. ROLL CALL PRESENT: Cindy Lewis, Chairman Bill Adler, Vice Chairman Lyra Done,Member Bart Schannep, Member Colleen Kesseler, Member STAFF PRESENT: Bryant Nodine, Planning and Zoning Administrator Dee Widero, Senior Zoning Inspector Linda Hersha, Secretary II Joseph Andrews, Acting Town Attorney MINUTES MOTION: Member Done moved to APPROVE the Regular Session minutes of December 17, 2002 with the correction noted. Motion SECONDED by Member Kessler. Motion carried, 5-0. 1. CASE NO. OV10-02-04 CONTINUED FROM DECEMBER 17,2002. SOMBRA HOMES INC., 11115 NORTH LA CANADA DRIVE, ORO VALLEY,ARIZONA 85737, REQUEST A VARIANCE TO REDUCE THE REQUIRED FRONT YARD SETBACK FOR PUSCH RIDGE VISTAS SUBDIVISION,LOT 26. SUBJECT PROPERTY: 11038 NORTH PUSCH RIDGE VISTAS DRIVE, ORO VALLEY,ARIZONA 85737 Chairman Lewis announced that at the request of the applicant this item would be pulled from the agenda. 2. CASE NO. OV10-03-01 CONNY CULVER, 10503 NORTH FAIRWAY VISTA LANE, ORO VALLEY, ARIZONA 85737, REQUEST FOR AN APPEAL OF ADMINISTRATIVE DECISION TO RETAIN THE LANDSCAPE AND RE-VEGETATION BONDS PER ARTICLE 4-9 OF ORO VALLEY ZONING CODE REVISED. THIS PROPERTY IS CURRENTLY ZONED EL CONQUISTADOR COUNTRY CLUB PLANNED AREA DEVELOPMENT, AREA"D". SUBJECT PROPERTY: PARCEL #22450025C, LOCATED ON THE SOUTHWEST CORNER OF LAMBERT LANE AND LA CANADA, ORO VALLEY,ARIZONA 85737 01/28/03 Minutes, Board of Adjustment 2 Chairman Lewis swore in the witness that was intending to testify. Conny Culver 10503 North Fairway Vista Lane, explained that the property located at the south east corner of La Canada Drive and Lambert Lane had consistently been in breech of agreement with the Town since 1999. She stated that the developer had failed to landscape the perimeter of the property and the landscape bond and restoration bond had not been called. She felt that there had been no effort made to seek compliance from the owner and asked that staff address these concerns as quickly as possible. In answer to a question from Vice Chairman Adler, Conny Culver informed the Board that she was the President of the Autumn Hill Homeowners Association(HOA). Vice Chairman Adler explained that after reviewing the application that he noticed that the commentary attached to the application did not address the particulars of how the Board of Adjustment (BOA) determined an appeal using the Primer's 5 criteria to judge whether an appeal should be upheld or denied. He asked the applicant if the BOA had been explained to her. Ms. Culver replied, "no." Vice Chairman Adler stated that it was very important that the applicant's testimony be germane to the criteria used by the BOA in order to judge the case. He explained that without giving the applicant an opportunity to address the specifics, the BOA would not be in a position to fairly judge the case. He explained that this was a question of whether or not there had been a material error made that needed to be specifically addressed. He suggested that this item be continued until the applicant had a fair opportunity to understand what the requirements were and adequately address them. Chairman Lewis agreed that the Primer's criteria should be made clear to the applicant. She asked if this information was given to an applicant when filing an appeal. Dee Widero, Senior Zoning Inspector explained that the Primer 5 criteria are not given to an applicant but that the information could be made available for them. Chairman Lewis explained that the applicant definitely needed to address the Primer's criteria as well as provide clarity as far as who she was representing. She explained that the BOA needed to know if she was representing the Homeowners Association or herself. Vice Chairman Adler explained that since the Board had heard from the applicant that it would be appropriate to hear the staff report and give staff an opportunity to offer any advice or comments regarding the Board's concerns. Chairman Lewis agreed. Dee Widero, Senior Zoning Inspector, reported that Conray Culver was appealing an Administrative decision to retain the landscape and restoration bonds as received per Article 4-9 for the subject commercial center. She gave the following pertinent facts: 01/28/03 Minutes, Board of Adjustment 3 • The development plan for the La Canada and Lambert Commercial Center was approved by the Mayor and Council on February 16, 2002. • Existing zoning: El Conquistador Planned Area Development (PAD) Commercial/Office/Residential (Area D) • The gross area of this development is 14.90 acres. • This development was approved to consist: o PAD—A Bank One—approved to build. o PAD—B currently vacant. o PAD—C Osco, occupied. o Buildings 1, 2, 3 and 4 are vacant. • The Town is holding a landscape bond in the amount of$119,373.00. • The Town is holding a restoration bond in the amount of$203,590.00. • 50% of the approved perimeter landscaping has been completed. Ms. Widero reviewed the following facts in chronological order that strictly related to the grading and landscaping for the site: • The site is relatively flat with the OSCO Drug Store located on the northwest corner of the site. • A hill remains on the north side property line. • A retention basin lies on the southeast section of the site with a well site just beyond. • Salvage trees are placed along the east property line. Findings: ARS 9-462.06 (G)(3)provides that the Board of Adjustment shall: Reverse or affirm, wholly or partly, or modify the order, requirement or decision of the Zoning Administrator appealed from, and make such order, requirement, decision or determination as necessary. The legal standards for the Board's consideration of this case are the same as those that the courts would use to review the decisions of the Board of Adjustment or the Town Council. Namely: 1. Was the decision within the jurisdiction of the Planning and Zoning Administrator, or conversely, did the Administrator abuse his discretion; and 2. Did the Administrator act with a rational basis, or conversely, was the decisions arbitrary and capricious. Vice Chairman Adler stated that he would prefer to give the applicant an opportunity to testify specifically to the 5 criteria that were outlined in the Primer. He suggested that a summary of the Primer be made available to the Homeowners Association and Conny Culver. MOTION: Vice Chairman Adler moved to CONTINUE this item to the February meeting giving the applicant an opportunity to become familiar with the criteria that the 01/28/03 Minutes, Board of Adjustment 4 Board of Adjustment used and adjust their testimony accordingly. Member Done SECONDED the motion. Motion carried, 5-0. Chairman Lewis opened the public hearing. Chairman Lewis swore in the witnesses that were intending to testify. Doris Dragan, 10171 North Inverrary Place, stated that the owner(Beztek Companies) had not made any serious attempt to landscape or upgrade the property. Mark Steering, 22631 Foxmoor,Nori, Michigan, a representative for Beztek Companies and the owner of the subject property explained that the applicant's appeal should be denied for procedural and substantive reasons. He stated that the appeal had been handled improperly under the Oro Valley Zoning Code Revised. He reported that before Beztek purchased the property it had been contemplated that an apartment complex would be placed on the site. He stated that the Planning and Zoning Administrator had not only acted reasonable and prudent, but has acted lawfully under the circumstances. Dyanna Jordan, 1983 West Arizona Rose Drive, stated that she needed more time to review the particulars,therefore had no comment at this time. Cal King, 10261 North Oak Knoll Land, stated that the builder should comply with the granting of the previous variance and complete the landscaping and would be highly opposed to the apartment complex proposal. Vice Chairman Adler suggested that the criteria are made available to the speakers as well as the Homeowners Association. In answer to a question from Chairman Lewis,Dee Widero reported that staff would provide a copy of the Primer's 5 Criteria to those citizens that were interested in obtaining a copy. Chairman Lewis closed the public hearing. Vice Chairman Adler pointed out that it should be made clear how soon an applicant had in order to file an application to appeal a case. Chairman Lewis agreed. 3. DISCUSSION AND POSSIBLE ACTION ON PROCEDURES FOR RECONSIDERATION OF THE BOARD OF ADJUSTMENT Vice Chairman Adler explained that in the past there had been a couple of instances where reconsideration had occurred. He explained that in those instances the chair had been approached by an applicant and was requested to place the item on a future agenda for reconsideration. He believed that there had been no specific criteria or basis used in determining whether to reconsider or not to reconsider a case. He explained that in order to be consistent from one application to another that the Board should decide if it is 01/28/03 Minutes, Board of Adjustment 5 important to have a basis for reconsiderations or if the Board should follow the suggestion made by staff to allow a reconsideration to happen automatically. The following topics of concern were discussed: • How reconsiderations apply under Roberts Rules. • The review of the case between staff and board members before a reconsideration is considered. • Once a motion is passed to reconsider a case how does it effect the previous action taken by the board. • How new information effects a case. • Should the previous decision handed down by the board remain in tact? • Does there need to be new information to reconsider a case? • Would it be in the Board's best interest to create a safety net of sort that would allow a case to be revisited? • Changing the policy could cheapen previous decisions made by reopening a case. • Should the Board eliminate reconsiderations entirely? Vice Chairman Adler stated that his preference would not be to allow one member of the board the ability to initiate a request for reconsideration. He gave the following reason why the Board should adopt a new procedure: • The initiation for a request should come from the failing side of the argument within 30 days of the action in written form to the Board. • The Board would consider the request for reconsideration at the next open meeting and discuss it to see if there was enough merit or substance to the request • To vote on a reconsideration at an open meeting and reconsider it at that time. • A reconsideration procedure could be developed, outlined and approved by the Board. • If the reconsideration is approved the applicant would then know how to move forward with the appeal. • A reconsideration should come before the Board and not an individual. • Because the Board of Adjustment changes and as the composition changes this procedure would remain in tact and be consistent. • The chair person should not be placed in a position of trying to manage the concept of new information. Chairman Lewis stated that she was comfortable with the current arrangement for considering an appeal. Vice Chairman Adler stated that the matter of reconsiderations should come before the Board and then the Board would decide publicly at an open meeting. Chairman Lewis stated that the Board members needed a higher level of trust rather than introducing a new procedure that might not allow new evidence brought forward in a case. 01/28/03 Minutes, Board of Adjustment 6 Member Kessler felt that the Vice Chair's suggestion might encourage more cases of reconsiderations. Member Schannep recommended that there be further discussion regarding the matter. He agreed that there should be a mandated procedure for reconsiderations but could not support the Vice Chair's recommendation. MOTION: Vice Chairman Adler moved that the Board of Adjustment receive an application for reconsideration or appeal of an action and that the application be discussed by the Board of Adjustment at a public meeting and a decision made to either reconsider or rehear the matter or not; and if the matter is reheard then it would be reheard in it entirely. Motion failed for lack of a second. MOTION: Vice Chairman Adler moved to allow a request for reconsideration to be provided to a member of the Board of Adjustment and the member of the Board of Adjustment brings that request to the full Board without a recommendation. The applicant is present to make their case publicly and the Board proceeds to judge whether the matter should be reheard or not. Motion SECONDED by Member Schannep Discussion: Vice Chair Adler explained that this would give the Board of Adjustment a chance to revisit any fact or evidence that may have been overlooked or misunderstand during the initial hearing. Joe Andrews, Acting Town Attorney, explained that he would do some research regarding the issue to confirm whether or not the Board had the authority to prescribe an appeals process internally for the Board of Adjustment. CALL FOR THE QUESTION Motion failed, 4-1, with Vice Chairman Adler opposed. Vice Chairman Adler asked that a draft be created and presented to the Board pertaining to the process in a reconsideration case. 4. DICUSSION AND POSSIBLE ACTION REGARDING RESOLUTIOIN (R) 02-107,APPROVED BY COUNCIL ON NOVEMBER 20, 2002 Vice Chairman Adler pointed out that the resolution outlined the evaluation process. He explained that the Board of Adjustment should have an evaluation process so that from one (1)board to the next there would be an evaluation process that would be consistent and done fairly. Chairman Lewis reiterated that she was adamantly opposed to having peer evaluations. 01/28/03 Minutes, Board of Adjustment 7 Vice Chairman Adler recommended that the requirements should define a volunteer's performance and their experience. MOTION: Member Schannep moved to table Item 4's discussion and possible action until after Item#5 has been thoroughly discussed. Motion SECONDED by Member Done. Motion carried, 5-0. 5. SUBCOMMITTEE'S REPORT OF CONSIDERATION AND ACTION REGARDING A MEMBER'S REMOVAL FOR CAUSE Member Schannep explained that the subcommittee had developed a proposed policy for the removal of a member of the Board of Adjustment. He thanked Mr. Andrews for his help in developing the document. The following information is a summary of the proposed stipulations: I. The two reasons for removal of a member for cause from the Oro Valley Board of Adjustment shall rest in the hands of the Chairperson as follows: a. Unexcused Absence: Should a member miss two consecutive meetings or three in one year the Chairperson may consider the position abandoned. b. Ill-Preparedness: should a member demonstrate a pattern of ill- preparedness, the Chairperson may consider removal of the member for the remainder of his/her term. Ill-preparedness may include but not be limited to the following: i. Poor citizenship or unruly behavior. ii. Lack of comprehension to non-technical explanations. iii. Lack of interest, inattentiveness at meetings, and/or sleeping during meetings. iv. Disregard for, and/or defiance of, rules and procedures. II. The procedure for such removal shall consist of the Chairperson presenting his/her decision to the Oro Valley Board of Adjustment along with the documented reasoning. This same presentation shall be presented to the Oro Valley Town Council at the next scheduled meeting for ratification. Submitted by Members Lyra Done and Bart Schannep January 28, 2003. In answer to a question from Chairman Lewis, Mr. Andrews explained that this information pertaining to a member's removal could be presented to Mayor and Council at an executive session and not discussed at a public forum. The following issues were discussed: • The definition of unexcused. • The definition of excused. • Who should be contacted when a member intended to be late or was unable to attend a meeting? • What would be considered sufficient notice to be excused? 01/28/03 Minutes, Board of Adjustment 8 • On what basis would a member be excused? Vice Chairman Adler stated that there needed to be some rationale basis for excusing or for a member to be unexcused so that it does not become a debate or controversy. He explained that the criteria for removing someone needed to be defensible and he wanted to be sure that the document was sufficiently detailed. He recommended that there be more specifics added to the document. Member Schannep stated that he would be uncomfortable with getting into a lot of details. He explained that the intent was "the simpler the better" and to provide a guideline but not a hard fast and rule; and to maintain the power of the chair person or the vice chair. He pointed out that the document does state "the procedure for such removal shall consist of the Chairperson presenting his or her decision to the Oro Valley Board of Adjustment along with the documented reasoning." He felt that this should be sufficient. Vice Chairman Adler asked if there was a way to redefine the document so that it coincides with the Zoning Code. He pointed out that the Zoning Code would be used by Mayor and Council when making their decision whether to adopt the proposal or not. Chairman Lewis stated that the document was easily translatable between the propose document and what the Town Council would consider. She said that she liked the idea of keeping it simple and not over complicating the issues. MOTION: Member Done moved to except the propose policy. Member Schannep SECONDED the motion. Motion carried, 4-1, Vice Chairman Adler oppose. 4. DICUSSION AND POSSIBLE ACTION REGARDING RESOLUTION (R) 02-107, APPROVED BY COUNCIL ON NOVEMBER 20, 2002 Mr. Andrews explained that since the Town Council has come forward with the resolution perhaps the Board would be interested in asking the Council about some of the technical terms and how things should be handled. Chairman Lewis and Member Schannep agreed. MOTION: Member Schannep moved to continue Item 4 until the Board receives clarification from Town Council. Member Kessler SECONDED the motion. Discussion: Mr. Andrews explained that the Board could ask the Council what would be the prescription for the evaluation because the resolution did not outline anything other than a one page report. Chairman Lewis reiterated that this information would be used for guidance as opposed to clarification. Vice Chairman Adler reported that he had submitted a letter to Mayor Loomis, Town Manager Chuck Sweet, and Human Resource Director Jeff Grant,but has not received a 01/28/03 Minutes, Board of Adjustment 9 response. He agreed that the Board should be asking for clarification as opposed to waiting. Call for the Question Motion carried, 4-1, with Vice Chairman Adler oppose. 7. PLANNING AND ZONING UPDATE Bryant Nodine, Planning and Zoning Administrator, gave an update on the following projects: • The General Plan is under consideration by the Town Council. • The Sign Code and the Work Plan will go before the Planning and Zoning Commission February 4th . • The Beztek Property appeal and grading waiver is being scheduled to go before Town Council in the first week in March. 8. ADJOURNMENT Chairman Lewis moved to ADJOURN the meeting at 5:15 p.m. Vice Chairman Adler SECONDED the motion. Motion carried, 5-0. Respectfully submitted, ( ' : ,, 1I Linda Hersha, ecretary II