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HomeMy WebLinkAboutMinutes - Board of Adjustment - 1/22/2002 MINUTES ORO VALLEY BOARD OF ADJUSTMENT JANUARY 22, 2002 ORO VALLEY TOWN COUNCIL CHAMBERS 11,000 N. LA CANADA DRIVE CALL TO ORDER: 3:05 p.m. ROLL CALL PRESENT: Henry Suozzi, Chairman Bill Adler, Vice Chairman Lyra Done,Member Bart Schannep,Member Cindy Lewis,Member STAFF PRESENT: Bryant Nodine, Planning and Zoning Administrator Dan Dudley, Town Attorney Dee Widero, Senior Zoning Inspector Debbie Moran, Zoning Tech Linda Hersha, Secretary II Mike Valencic, Zoning Inspector MINUTES MOTION: Vice Chairman Adler moved to APPROVE the regular session minutes of December 18, 2001 with the correction noted. Motion SECONDED by Member Lewis. Motion carried, 5-0. Chairman Suozzi moved Item 1 to follow Item 2. 2. CASE NO. OV10-01-09 SHERYL KAY GONNSEN REQUESTS A RECONSIDERATION AND POSSIBLE ACTION ON HER VARIANCE HEARD AND DENIED AT THE DECEMBER 18, 2001 MEETING. Chairman Suozzi asked for clarification as to what would be required of the Board to reconsider this case. Dan Dudley, Town Attorney explained that the theory behind a motion for reconsideration would be used to correct any problems that may have occurred at the previous hearing relating to the case. He explained that generally, new information would be provided to the board for consideration and a motion of reconsideration would allow the Board to correct inadequacies that may have occurred at the first hearing. Chairman Suozzi swore in the witness that was intending to testify. 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She explained that there were many property owners in the Campo Bello area that had retained the 1 animal per 10,000 square feet zoning privilege. She pointed out that one of the major attributes was that the property was a corner lot separated by several streets and that the safety of the children and the animals in the community was a priority. She made clear that the property was completely fenced except for the entrance, which she planned to complete to provide the containment and safety that the neighborhood needed. She explained that her children thoroughly enjoyed their horses in every aspect and by not granting the variance would prevent continued enjoyment in the community. Chairman Suozzi asked how many horses would be contained on the property. Ms. Gonnsen stated that whatever the previous zoning requirements would allow,which would be the 1 horse per 10,000 square feet. Member Done asked if the applicant would be satisfied if she were allowed to keep the 9 horses that she currently owned on the property. Ms. Gonnsen explained that as a property owner she would like to have the previous rights that were in existence before the 1974 revisions were enforced. Member Lewis asked if the applicant had contemplated applying for a rezoning of the area rather than a variance. Ms. Gonnsen stated that she had heard of the rezoning aspect but was directed to present her case to the Board of Adjustment first. She explained that if it was the recommendation of the Board to submit a rezoning application this would be the next step. Dee Widero, Senior Zoning Inspector reviewed the report. She explained that the request would be to reconsider the variance request from December 18,2001. She stated that all of the formal notifications have been completed. She reported that staff has had several conversations with Carl Kuehn, a citizen who has concern with the number of horses allowed per lot area. She explained that staff had received many letters of comment in support and in opposition of the request for variance. The following facts exist: • Minimum lot size is 3.3 acres for R1-144; Parcel 9A is 3.56 acres. • The number of horses at 1 per 30,000 square feet = 5 (5.16) • The number of horses at 1 per 10,000 square feet= 15 (15.5) 01/22/02 MINUTES 4 BOARD OF ADJUSTMENT REGULAR SESSION • Zoning for Campo Bello prior to annexation was SR(Suburban Ranch Zone); minimum lot size is 144,000 square feet from the Pima County Zoning Code, (allowed 1 per 10,000). • Rancho Verde and Rancho Feliz,both are CR-1 in the Pima County(Single Family Residence Zone); minimum lot size is 36,000 square feet. Also allows one horse per 10,000 square feet, excluding swine. • The northern portion of Campo Bello Estates was part of the original Town incorporation in 1974. The Town of Oro Valley at that time adopted the Pima County Zoning Code (allowing one horse per 10,000 square feet). In 1981 the Town of Oro Valley adopted our current Zoning Code Revised,which changed the livestock requirement to one horse per 30,000 square feet. • The south half of Campo Bello was annexed in 1984. The following exception was included: 1. Lots of 36,000 square feet or greater,the following shall be allowed: Agriculture or horticulture used only for the purpose of propagation and not for retail sales, including any number of poultry,rabbits and similar small animals. No more than one head of cattle,horses, sheep, goats or other similar animals, excluding swine,more than six months of age shall be allowed for each 10,000 square feet of lot area. Mr.Nodine gave a brief overview of the site using the overhead projector. Vice Chairman Adler pointed out that the letter received from Ms. Gonnsen dated December 19th directed to Community Development Director Brent Sinclair, had not been date stamped. He asked for verification as to when the letter had been received and if there was a way to verify that the letter had been received within the 10 day requirement. Ms. Widero explained that her files reflect that she had received notification on December 15th,but believe the Town received the letter on December 19th. Mr.Nodine explained that he was not sure if the Town received the letter on December 19th because he had no record of it,but that staff had received a verbal request that was acted on. Vice Chairman Adler stated that it would be a legal question as to whether receiving a verbal request was in fact in compliance with the requirement for a 10 day notice to request a reconsideration of a variance. He explained that a request for reconsideration of a case must be received within a 10 day period,but was not clear if a verbal request was adequate. Mr. Dudley, Town Attorney, explained that in order to answer the question he would need to ask Mr. Nodine a few questions from a historical point to get a better understanding on how an issue such as this had been handle in the past. However, he was unaware of any specific rule that required a written notice,but if traditionally and 01/22/02 MINUTES 5 BOARD OF ADJUSTMENT REGULAR SESSION historically staff has permitted issues of this nature to be verbal, staff would be bound by that verbal rule. Mr. Dudley explained that if the applicant makes the request and the chairperson puts it on the agenda then it has been presented properly before the Board. He explained that without the historical base he would default to the Board giving the property owners or applicants the greatest latitude in submitting their request, therefore would default to a verbal request as being sufficient as long as the Board responds in a timely manner to get the issue on the agenda. Vice Chairman Adler asked for clarification that it was the collective belief of staff that a verbal request was received within the 10 day period to be eligible for reconsideration. Mr. Nodine stated that a verbal request was clearly received within the 10 day period. Vice Chairman Adler agreed with Legal Counsel,but had concern that the letter had not been date stamped. He explained that nearly everything that comes into the Town is dated stamped for a reason. He explained his opinion that this technique is used when appropriate to verify that the material has been received within a deadline. He stated that with that understanding he felt that having material in writing upon receipt would be as justifiable as having a requirement for material of this nature that is accepted verbally. He recommended that the Town Code be amended so that the procedure is more defined. Chairman Suozzi opened the public hearing. Chairman Suozzi swore in all witnesses that were intending to testify. The following citizens were in favor of the variance because it would be a great attribute to the community. • Kerry Hetzler—9020 North Loma Linda • Ed Henne— 1361 West Calle Concordia • Carol Clarke—4152 East Holmes Street • Babs Felix—9202 North Rancho Verde Drive • Melody Vittitow— 8921 North Calle Loma Linda • Deborah Newman—9041 Nroth Calle loma Linda • Don Scheer—9799 North Korte Lane • Mindy Slanaker— 8825 Marathon Drive • Kate Covey—9020 Camino De Anza • Katie Wheeland—9750 North Calle Buena Vista • Jim Kriegh—40 East Calle Concordia • Emma Timmerman— 1220 West Cananea Circle • Danielle Cannon—9122 North Marathon Drive • Shelley Roseberg—777 Calle Concordia • Patty Umphres—address was illegible 01/22/02 MINUTES 6 BOARD OF ADJUSTMENT REGULAR SESSION Chairman Suozzi closed the public hearing. Member Schannep asked if there were other provisions the applicant could take to get the 1 animal per 10,000 acres other than the request for variance. Mr. Nodine explained that there were no existing provisions other than the request for variance. Mr. Nodine stated that staff had suggested some condition to the applicant to mitigate some of the negative impacts of the horse property such as landscaping,buffering, irrigation or sprinkler systems. Vice Chairman Adler stated that it was important to restate that the issue was not about the applicant and her abilities as a businesses woman or as a civic minded caring person. He explained that the property was not being restricted because the current Zoning Code allows 1 livestock per 30,000 square feet. He explained that the reason the current code was triggered was because the property failed to be used and had been abandoned. He expressed the importance for people to understand that if the owner had maintained the livestock on the property, the property would still have the use. He explained that when the property was abandoned that this triggered the implementation of the current Zoning Code which is more restrictive. He explained that the variance would revert the property zoning back to the 1 animal per 10,000 square feet. He felt that the rights associated with the property are intact because the R1-144 zoning does allow farming on the property. Therefore, he felt the rights of the property as it relates to historical use were still intact. However,the issue remains as to whether the variance was necessary for the preservation and enjoyment of substantial property rights. He explained that the hardship that the applicant has expressed regarding the existing horses she currently owns would have to be reduced if she moved the horses to a new property under the current Zoning Code. He stated that this would be a self imposed hardship, not a hardship created by the property. MOTION: Vice Chairman Adler MOVED to the deny Case No. OV 10-10-09 since the 5 legal standards that the Board used to evaluate these matters had to be met and in his judgment the legal standard that has to do with the variance being necessary for the preservation and the enjoyment of substantial property rights had not been met. Member Lewis SECONDED the motion. Discussion: Member Done stated that it was the Board of Adjustment's duty to protect the homeowners in the area who utilized the suburban ranch development. She stated that everyone has to remember that the Board does review both sides of the issue, including the review of the many letters received from citizens who opposed the granting of this variance. 01/22/02 MINUTES 7 BOARD OF ADJUSTMENT REGULAR SESSION Member Schannep stated that the neighborhood had been clearly design with these particular types of facilities in mind. But,he agreed with the Vice Chair that to some degree the applicant was bringing the hardship upon herself,because there were other properties and locations within the Town that could accommodate her needs. Member Lewis stated that her concern was that the 5 Criteria had not been met and reiterated that there were other alternatives. Vice Chairman Adler explained that by denying the variance would be to deny the applicant the ability to enlarge the use of the area. He explained that the denial of the variance would not change the use of the property by not allowing the enlargement of the property. He stated that the enlargement would need to be justified based upon the preservation of substantial property rights and that there could be some disagreement as to what would constitute substantial a property right. He said, "a substantial property right would be that right which would effectively deny the use of the land." Chairman Suozzi stated that he did not feel that there had been any new evidence presented to the Board. He explained that it was the duty of the Board to enforce the current Zoning Code and determine what would be in the best interest for the Town of Oro Valley. He added that the Town was not responsible for the Pima County Zoning Code regulations. He further stated that he agreed that the 5 Criteria had not been met and that the decision previously handed down by the Board was a sound one. ROLL CALL VOTE Chairman Suozzi—aye Vice Chairman Adler—aye Member Lewis—aye Member Schannep—nay Member Done—nay Motion carried, 3-2, Member Done and Member Schannep opposed. 1. CASE NO. OV10-02-01 DONALD DAVIES AND BARBARA AHEARN REQUEST A VARIANCE TO REDUCE THE REQUIRED 15 FEET SIDE YARD SETBACK TO 10 FEET. SUBJECT PROPERTY IS LOCATED IN THE ORO VALLEY ESTATES SUBDIVISION,LOCATED AT 520 WEST VALLE DEL ORO ROAD, ORO VALLEY,ARIZONA 85737 Chairman Suozzi swore in the witnesses that were intending to testify. Donald Davies and Barbara Ahearn explained that they were co-homeowners of the home and wanted to build an additional bedroom on the west side of their home. They believed that there was no other logical space to build the addition because of the layout of the home. 01/22/02 MINUTES 8 BOARD OF ADJUSTMENT REGULAR SESSION Vice Chairman Adler pointed out that in this particular zoning district an accessory building was allowed, such as a bungalow, as long as it was at least 10 feet from the main building. He explained that his concern was not with the inconvenience that the suggestion might represent,but if the Zoning Code should be waive or changed. Chairman Suozzi asked if they had considered other alternatives. Mr. Davies explained that because of the way the home had been situated on the property, it had been difficult to create the new addition. Mike Valencic,Zoning Inspector reviewed the staff report. He explained that the applicant requests to reduce the side yard setback in an R1-36 zoning district from 15 feet required side yard setback to a 10 foot setback, in order to build a bedroom addition to the southwest corner of the home. He reported that all property owners within 300 feet had been notified by mail of the public hearing,the property posted and a notice advertised in The Daily Territorial Newspaper. He said that at the time of the preparation of the report, staff had not received any public comment in support of or in opposition to the request. Mr. Valencic explained that Lot 87 consists of 39,117 square feet in total area and that the home was in compliance with the required setbacks; the proposed bedroom addition will encroach by 5 feet into the required setback. The plan submitted meets all other requirements. Staff finding of facts: • Staff feels there are no special conditions or circumstances due to the lot or property. • The existing home was built at an angle on the lot,but meets the required setbacks. • The property met the county zoning of CR-1, with a setback of 10 feet,when built in 1979, and also meets the required OVZCR setback requirement of 15 feet adopted in 1981. • The Oro Valley Country Club Estates Association has given formal approval of the plans for the room addition, signed by the association President, Stephen M. Richards. Chairman Suozzi opened the public hearing. Chairman Suozzi swore in all witnesses that were intending to testify. The following citizens spoke in favor of the granting of the variance and believed this would help preserve and upgrade the neighborhood. • Bob King—9635 North Calle El Milagro 01/22/02 MINUTES 9 BOARD OF ADJUSTMENT REGULAR SESSION • Tricia Tozier—635 West Valle del Oro Chairman Suozzi closed the public hearing. Member Schannep asked if there had been numerous variances granted to citizens living in the area due to the positioning of the homes. Ms. Widero replied, "no." Vice Chairman Adler believed the property had not created the special circumstance but the home and its' positioning on the property,therefore, the applicant's needs were no longer being met. He explained that this was not a special condition imposed by the property,therefore, the hardship that is necessary in order to justify consideration of a variance is imposed by his needs and not by the property. He stated that in this particular case it seems that the hardship has been created by the homeowner because his needs were no longer being served by the existing home. Therefore, legal standard#1 had not been met. Member Lewis disagreed and stated that the special circumstances was not created by the applicant but by the builder and the way the home had been constructed,therefore, she was in favor of granting the variance. Member Done stated that it was important that the homeowners association had given their approval for the change because it was good to leave some authority with the homeowners association,based upon the circumstances. MOTION: Member Lewis MOVED to approve Case No. OV 10-02-01, a request to reduce the side yard setback from the required 15 feet to 10 feet. Member Done SECONDED the motion. ROLL CALL VOTE Chairman Suozz—aye Vice Chairman Adler—nay Member Lewis—aye Member Done—aye Member Schannep—nay Motion passed 3-2, Vice Chairman Adler and Member Schannep opposed. 4. MEMBER CINDY LEWIS WILL REPORT ON THE DISCUSSION OF STAFF SUPPORT FOR THE BOARD OF ADJUSTMENT. Member Lewis reported that Chairman Suozzi and she met with Dee Widero and Bryant Nodine last Wednesday to discuss the issue regarding the respect of the Board by the Town and by the staff. She explained that a few items were discussed regarding 01/22/02 MINUTES 10 BOARD OF ADJUSTMENT REGULAR SESSION acknowledgement and profile of the Board. She stated that the Board of Adjustment by definition was a low profile board. The following recommendations were reviewed: • Members of the board could be requested to attend public functions as a representative of the Town. • Members to participate on technical or public advisory committees. • Speaking at the Citizens Planning Institute. • Bringing together all boards and commissions to get a better idea of who is serving on the boards and commissions. She explained that staff was very receptible to all of the suggestions. She reported that nothing had been permanently set as a rule,but, Mr. Nodine was going to request a board member be present as a representative for the Town at different functions and events. She said that overall she was very pleased with the meeting. Chairman Suozzi agreed with Member Lewis,but stated that he was unclear with Legal Counsel's explanation regarding the Boards being a quasi-judicial board and its limitations to participate on other boards and commissions. Mr. Dudley explained that if he gave the impression that a board member would not be allow to sit on other boards and commissions, that this was not his intention. But,he reiterated that he would not advise a member of the Board to do so because of the potential conflicts that may be involved. He stated that if the board agreed, he would investigate other jurisdictions to determine whether or not members of the Board of Adjustment served on other boards-and commissions. Member Lewis suggested that a pamphlet be created to provide some guidelines for those board members who were interested in sitting on other boards or commissions. Vice Chairman Adler suggested that the conditions and circumstances under which the Planning and Zoning Department prefers to handle administratively be summarized in a way that he and others can understand. Member Lewis reported that there was discussion with staff to consider having a study session in the spring for further updates and clarification regarding the following subj ects: • The request of a member to attend public functions as a representative of the Town. • Member participation on technical or public advisory committees. • Speaking at the Citizens Planning Institute. • Bringing together all boards and commissions to get a better idea of who is serving on the boards and commissions. 5. FOR CONSIDERATION AND OR POSSIBLE ACTION ON THE DECISION REGARDING THE ROTATION OF THE CHAIR AND VICE CHAIR AND THEIR RESPONSIBILITIES. 6. 01/22/02 MINUTES 11 BOARD OF ADJUSTMENT REGULAR SESSION MOTION: Member Done nominated Cindy Lewis for Vice Chairperson. Member Schannep SECONDED the nomination. ROLL CALL VOTE Chairman Suozzi—nay Vice Chairman Adler—aye Member Done—aye Member Schannep—nay MOTION FAILED, 2-2, Chairman Suozzi and Member Schannep opposed. Vice Chairman Suozzi nominated Cindy Lewis for Chairperson. Member Schannep SECONDED the nomination. ROLL CALL VOTE Chairman Suozzi—aye Vice Member Adler—aye Member Done—aye Member Schannep—aye Motion carried, 4-0. MOTION: Member Done nominated Bill Adler for Vice Chairperson. Member Schannep SECONDED the nomination. ROLL CALL VOTE Chairman Suozzi—aye Member Lewis—aye Member Done—aye Member Schannep—aye Motion carried, 4-0. 7. PLANNING AND ZONING UPDATE REPORT Bryant Nodine, Planning and Zoning Administrator had no report. Chairman Suozzi stated that he appreciated receiving the minutes of the Planning and Zoning Commission and Town Council meetings. Chairman Suozzi asked for a progress report regarding the "Notice of Public Hearing", to expand the notification to the neighbors from 300 feet to 600 feet or more. Mr. Nodine explained that the Planning and Zoning Department and the Town Council has agreed to move this item forward and place this issue on the next fiscal year work plan. 01/22/02 MINUTES 12 BOARD OF ADJUSTMENT REGULAR SESSION Chairman Suozzi thanked the Board and staff for a very good year and congratulated Cindy Lewis and Bill Adler. ADJOURNMENT MOTION: The meeting was adjourned at 5:47 p.m. Respectfully submitted, Linda Hersha, Secretary II