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HomeMy WebLinkAboutMinutes - Board of Adjustment - 4/23/2002 MINUTES ORO VALLEY BOARD OF ADJUSTMENT STUDY SESSION APRIL 23, 2002 ORO VALLEY TOWN COUNCIL CHAMBERS 11,000 N. LA CANADA DRIVE CALL TO ORDER: 3:05 p.m. ROLL CALL PRESENT: Cindy Lewis, Chairman Bill Adler, Vice Chairman Lyra Done, Member Bart Schannep, Member Henry Suozzi, Member STAFF PRESENT: Bryant Nodine, Planning and Zoning Administrator Dan Dudley, Town Attorney Dee Widero, Senior Zoning Inspector Linda Hersha, Secretary II Mike Valencic, Zoning Inspector Chairman Lewis addressed the memorandum of February 12, 2002 from Town Manager Chuck Sweet regarding the appointment of members to boards and commissions. She explained that some of the Board members had concern with a portion of Item 3,the recommendation for the interviewing process for boards and commission members, the language that was included to read, "Confidential evaluation". She asked if the language would be inappropriate because the information would be considered a public record. Dan Dudley, Town Attorney, explained that generally the rule would be that documents like these would be considered a public record. He suggested that the recommendation reads "if possible under the law." MINUTES Member Done moved to CONTINUE the minutes of the March 27, 2002 to the next meeting. Vice Chair Adler SECONDED the motion. Motion carried, 5-0. 1. DISCUSSION—JURISDICTION OF THE BOARD REGARDING THE PROPOSED AMENDMENTS TO SIGN CODE—(WAVIERS AND TRANSFERS) Vice Chairman Adler addressed the following issues: 04/23/02 Minutes, Board of Adjustment Study Session 2 • The difference between a waiver and a variance. • There was no community benefit to having the waiver section in the sign ordinance. Therefore, he felt there was erosion of the Board of Adjustment authority, regardless of where that authority stems. He questioned if the Town Council had the authority to change the scope of work of the Board of Adjustment since the Board's work is defined by state statute. • Suggested that this item be placed on the next meeting agenda for action,that the waiver clause not be included in the proposed revision to the Sign Code. Mr. Dudley explained that nowhere in the delegation of power from the Town Council or the outline of the power under the State Code is there any indication that the Board has authority to discuss and decide on issues that are brought forward to another Board. He explained that in terms of the Board discussing any amendments to the Sign Code, he did not believe that the Board had the authority. He further explained that it was important that the Board stay within the authority granted to them by the Council and by State Law. He stated that he agreed with Vice Chairman Adlers' concern regarding the waivers and transfers. He explained that the Planning and Zoning Department had concerns with the waiver and transfer issue with regard to signage. Bryant Nodine, Planning and Zoning Administrator,pointed out that the waiver and transfer for signs was currently being removed from the Town Zoning Code. Mr. Nodine added that there were are some provisions in the Code that are administrative such as allowing waivers for grading and other provisions that address non-substantial changes. The following topics were discussed: • Setback waiver requests. • The frequent occurrence of a waiver request. • The standard requirement to receive a waiver. • The standard requirement to receive a variance. • Signage. Vice Chairman Adler expressed concern as to why either ideologically or philosophically,would it be necessary to spend the energy to look for additional relief within the Code when the Board of Adjustment represents relief by virtue of its very existence. He stated that whenever he reads a Code where administrative approval is recommended, he opposes,because the Code already offers flexibility through the Development Review Board,Planning and Zoning Commission and the Board of Adjustment. He added that how the Town thinks and functions was the primary responsibility of the citizens to decide. Mr. Nodine explained that staff was not looking for an end-run in relief,but the appropriate type of relief; and to integrate flexibility into the process versus having a separate process that has fairly strict standard. He explained that the two key findings that form the basis for the Board of Adjustment would be (1) something unique about the property(2)unnecessary hardship. 04/23/02 Minutes, Board of Adjustment Study Session 3 Chairman Lewis reiterated that the section of the Sign Code pertaining to transfers was in the process of being removed. She asked the Vice Chair if this addressed his concern. Vice Chairman Adler replied, "Yes, I was not aware that it had been removed." Member Suozzi requested that the Board of Adjustment members receive a copy of the revised Sign Code when available. 2. DISCUSSION—JURISDICTION OF THE BOARD REGARDING GRADING WAIVERS Vice Chairman Adler explained that the idea would be to move the jurisdiction of determining whether a grading variance or exception waiver should better be heard by the Board of Adjustment,therefore this issue should be revisited because the Grading Ordinance has been revised. Mr. Nodine provided the Board with an outline of Chapter 15 pertaining to the Grading Ordinance and gave a brief overview. The pamphlet included the following Articles and excerpts: • Sec. 15-101 Purpose. • Sec. 15-102 Intent. • Sec. 15-501 Exceptions. • Sec. 15-502 Requests for Interpretation. • Grading exceptions excerpt of report to Council. • Relevant General Plan Policies. Vice Chairman Adler asked what would be an acceptable forum for this issue to get an open discussion between the parties involved. Dan Dudley recommended that this issue be handled on an individual basis. He explained that this could be an issue that may ultimately come before the Board in the future but,by law, the Board of Adjustment did not have the authority to consider grading waivers. The following issues were addressed: • Would the Board of Adjustment be more effective? • What was the percentage of grading being done in the Town? • Should the Council be aware of the Board of Adjustment's concern? • Would it be inappropriate to judge the effectiveness and competence of another board? Vice Chairman Adler explained that this issue had nothing to with the individuals or committee involved,but with process. He explained that the process the Board of Adjustment represents, safeguards the community's interest to preserve and protect the native desert better than the discretionary determinations that are authorized presently by the Grading Ordinance. 04/23/02 Minutes, Board of Adjustment Study Session 4 Chairman Lewis explained that the Board needed to stay within their jurisdiction. She explained that it is her understanding that the Board had no authority regarding the matter. Vice Chairman Adler explained that the Board would not be making any decision regarding the matter,but would be requesting that the topic be presented to the Council for deliberation. He stated that this issue was not a question of jurisdiction. Chairman Lewis recommended against a formal recommendation from the Board of Adjustment to Council.But, she explained that if any member felt as strongly as Vice Chairman Adler that grading waivers should be held to a stricter set of standards, then their feelings should be known. However, she asked not to compromise the Board of Adjustment by doing something that would be considered inappropriate The following concerns were addressed: • Under Article 15-5, Item B. Member Done felt that"in substantial compliance" with the finding was much different from comply with the finding. She felt that the applicant must be in compliance. • Was the grading ordinance flexible? • Should the grading ordinance be re-evaluated? • Would it be out of line to recommend the grading ordinance be reviewed? Vice Chairman Adler felt that due to the concern of the Town Attorney,he suggested that the members of the board be aware of this issue and watch for the Development Review Board (DRB) agendas that included a grading application and attend the meetings to determine if the matter was been handled in an effective manner. Member Suozzi agreed. 3. DISCUSSION—REVIEW OF RECOMMEDATIONS FOR APPOINTMENTS TO BOARDS & COMMISSIONS REGARDING THE TOWN MANAGER MEMORANDUM OF FEBRUARY 12, 2002 It was the consensus of the Board that this item be continued to the next Board of Adjustment meeting on May 28, 2002. 4. DISCUSSION—REVIEW RECOMMENDATION OF BOARD RULES AND PROCEDURES AND LEGAL STANDARDS Vice Chairman Adler explained that it had been mentioned in past meetings that the Rules and Procedures Guide needed to be amended to include a reference to the fact that the five criteria were no longer criteria but legal standards,but was still referenced as a criteria in the Board of Adjustment guide. He further explained that in the Rules and Procedures that the criteria or legal standards that are to be used in judging the appeal of an administrators interpretation are different from the criteria and standards used by the Board for a variance. He suggested that the criteria outlined in the Primer needed to be included in the Board's Rules and Procedures Guide. He suggested that at the next 04/23/02 Minutes, Board of Adjustment Study Session 5 meeting or some future study session or special session, that the entire matter of rules and procedures be revisited because it was deficient in some areas and needed to be updated. Vice Chairman Adler recommended that the Board consider using the"Getting 360 Degree Feedback Right"pamphlet as one approach in the evaluation process. Also, he suggested the following: • The Human Resources Director Jeff Grant,who is familiar with the subject should be present for guidance; or if there were any other approaches that could be used in the evaluation process because this needed to be done. • There is no protocol or procedure for handling evaluations and this was one approach. • The evaluation would be used primarily to make the Board of Adjustment a more effective Board. • If one member or more than one member can improve their performance so that the group is improved, then that is what the evaluation is all about. The evaluation would also be available to the interviewing committee when any of the members are applying for reappointment. Vice Chairman Adler suggested that Mr. Grant attend a future meeting to direct the Board regarding the "Getting 360 Degree feedback Right" for the evaluation process and how it would be applied to the Board; and if there were other evaluation processes that were better. He suggested that the Rules and Procedures guide, including the evaluation process, could be agendized so that Mr. Grant could be available to give his judgment on how a volunteer Board, such as the Board of Adjustment,might best proceed so that there is a process. He hoped that this item would become a part of the next meeting. Member Suozzi asked if the other boards and committees had a particular process that they use; and if so,he would like to review those documents. Chairman Lewis clarified that the Mr. Grant presence would be for educational purposes and to answer questions. 5. DISCUSSION—NEED FOR STAFF REPORT, ESPECIALLY NEEDED FOR SUMMARY OF WHETHER THERE ARE OR ARE NOT SPECIAL CIRCUMSTANCES, ETC. Vice Chairman Adler stated that the only purpose of the staff report for a hearing should be to restate the facts. He explained that staff could save time by simply having a paragraph that establishes the fact of the case and really not get into whether there were special circumstances or not,because in his opinion, that in some cases, staff comes very close to making a recommendation. He felt that all boards and commissions would be better off without the staff recommendation. He stated that the Town Council and Planning and Zoning Commission would be better off if the members did their home work and came to their own independent conclusion. He said the staff report was unnecessary. 04/23/02 Minutes,Board of Adjustment Study Session 6 Member Suozzi disagreed and stated that he found the staff report very helpful. Member Schannep stated that the report could tend to sway a member in the decision making process and agreed with the Vice Chairman. Chairman Lewis explained that it served an important role,because the applicant has a tendency to become emotional and convey their ideas based on their own personal perspective that might not be necessarily fact based, therefore the facts that are provide by staff are extremely important. However, she felt that the report does need to be objective. Vice Chairman Adler suggested that the"findings of facts" included in the report be eliminated. Member Done stated that she has never felt influenced by the staff report. Member Suozzi stated that the report was a benefit to have as much information as possible. Chairman Lewis agreed. Vice Chairman Adler recommended that the application for a variance should be professionally provided to the Board. He suggested that the application is reviewed carefully. Chairman Lewis suggested that unless there was an objection, staff adds to that application the requirement that it is either typed or computer generated. 6. JURISDICTION OF BOARD OF ADJUSTMENT REGARDING APPOINTMENT AND REMOVAL OF MEMBERS OF BOARD OF ADJUSTMENT Vice Chairman Adler explained that the Board of Adjustment did not serve literally or at the pleasure of the Council. He explained that there were three criteria that were used for the removal of a member and wanted the Board members to be aware that the Zoning Code distinguishes the Board in this way. 7. JURISDICTION OF THE BOARD OF ADJUSTMENT REGARDING MULIT-LOT VARIANCE VERSES DEVELOPMENT Vice Chairman Adler had concern that there was no indication that the Board of Adjustment criteria are applied to a single lot. He asked for clarification that the board was limited to a lot by lot determination. Mr.Nodine read Article 2-1 definition of a Variance: "Variance— shall mean a modification of the literal provisions of this Zoning Code granted by the Board of Adjustment upon a finding that strict enforcement of the provision would cause undue hardship owing to circumstances unique to the individual property for which the variance 04/23/02 Minutes,Board of Adjustment Study Session 7 is granted and not caused by the applicant for said variance." He explained that it seemed to be addressing an individual property. He added that the five findings also imply or relate to a single property. Vice Chairman Adler explained that he was simply looking out for the Board of Adjustment to be sure that the Board was not excluded from being involved in making determinations regarding variances. He explained after reading various materials regarding the matter that he could not find any information that was clear, that in fact, the term"lot by lot"was specifically referenced. He said that there was term property mentioned,parcels were mentioned, and other terms that could infact included multiple lots. He felt that the Board of Adjustment has been viewed over the years as a secondary board either inadvertently or advertently and wanted to be sure that the Board was involved in all of the appropriate considerations. He added that if the Board agrees, he would like the Board to be one voice in expressing the desire for the Board of Adjustment to be utilized as a mechanism and judge variances on multiple lots. He said that he would like the Board not to be excluded and to express that in one voice. He said that if this requires a vote, then he would like to see this issue on the next meeting agenda. Mr. Dudley explained that the Board was not being excluded,but the development community has chosen a legislative route because it gives them flexibility. Comments: Chairman Lewis apologized to Vice Chairman Alder for not including discussion regarding Planned Area Development(P.A.D.). She explained that this was an oversight on her part and asked that this item be included on the next meeting agenda. ADJOURNMENT The meeting was adjourned at 4:21 p.m. Respe lly submitted, ��Ail // ` ./.[✓ UTin 'Hersha, Secretary II