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HomeMy WebLinkAboutMinutes - Board of Adjustment - 2/27/2001 MINUTES BOARD OF ADJUSTMENT FEBRUARY 27, 2001 11,000 N. LA CANADA DRIVE ORO VALLEY,ARIZONA CALL TO ORDER at 3:02p.m. PRESENT: Henry Suozzi, Chairman Bill Adler, Vice Chairman James Swan, Member Lyra Done, Member Cindy Lewis, Member STAFF: Bryant Nodine, Planning and Zoning Administrator Dee Widero, Senior Zoning Inspector Debbie Moran, Zoning Tech. Linda Hersha, Secretary II 1. PUBLIC HEARING—OV-10-01-01 DON SCHEER, 9799 NORTH KORTE LANE, ORO VALLEY,AZ 85737 HAS MADE A REQUEST FOR AN APPEAL OF ADMINISTRATIVE DECISION REGARDING HIS REQUEST TO SPLIT PARCEL 6 OF LINDA VISTA CITRUS TRACTS LOCATED AT 9799 NORTH KORTE LANE. Don Scheer, the applicant, explained that he was interested in starting a company that would be located at 9799 North Korte Lane. He explained that he would like to raise the money by raising the value of the property and then borrowing against the increased value. Mr. Scheer submitted the following letter to the Board of Adjustment regarding his case: February 3, 2001 Dear Members of the Board of Adjustment: I need your help. I am a software developer. I came to Tucson a couple of years ago to help establish a local software company. It is doing great, but I could have benefited better. So now I want to establish my own company. To do that I need money. 2/27/01 Minutes 2 Board of Adjustment I would like to raise the money by raising the value of my property at 9799 North Korte Lane, and then borrowing against that increased value. This method is the most efficient as far as taxes and ownership questions. My property value would rise in value if it was "splitable', i.e. the land "could"be split and that the Town of Oro Valley would allow a house to be built on the new lot. I will reiterate, I have no intent on actually splitting the land and selling a new lot. I have tried several ways to get permission from Oro Valley. First, I asked to be able to "split"based upon the fact that Lot 7 had been split into thirds and 1/3 had already been split from Lot 6 (mine). All I was asking was the ability to split the remaining 2/3. The answer was no. Second, I asked could I add land to my lot to raise it to 288,000 square feet, and then would it be "splitable". The answer was yes. Third, I asked if I could buy some land from Lot 8B. The answer was no. The reason this is important is because if I have to buy land to add to mine, Lot 8B is the only one with enough to buy. Another way to acquire land is to have the City abandon the end of Korte Lane adjacent to my property. This is reasonable because a)most of Korte Lane adjacent to my property is in total disrepair B) it would preclude Korte Lane from be joined with Atua Lane,which would be detrimental to this neighborhood and c)the owner of Lot 7A is in agreement. However, even if this were to happen, it would not make up the total amount of land needed. So I figured with some combination of a part of Korte Lane being abandoned and/or buying the rest needed from my neighbor at Lot 8B, I could accomplish my purpose. However I do not grasp the logic of blocking me from buying land from Lot 8B. Lot 8B is not in conformance today. By selling me a small part from it, it would continue to be in non-conformance, yet would be unaffected by the transaction. The owner of Lot 8B is willing to sell me whatever amounts I ultimately need. Without the money I could raise, I will have to get a job within my profession and expertise. They do not exist in Tucson, and so I would have to move. This, in and of itself, is a net zero to Oro Valley. I'm sure the next owner would be of similar financial situation and contribute roughly equally to the area. The negative would be to the stability of the neighborhood. You would have to agree (and my neighbor certainly does), that in general you would prefer fewer turnovers within your city. However, there are positives to be received by Oro Valley if I can proceed. Minimally, my property value (and Taxes)would go up. More importantly, as a software developer, I am an ideal citizen, low impact and high income. Further, as my enterprise grows, it will mean more of these kinds of jobs. 2/27/01 Minutes 3 Board of Adjustment In general, I agree with Oro Valley's attempt to restrain reckless growth. However, in this case, I believe there is room for consideration. "Potentially splitting"the remaining 2/3 of Lot 6 is not inconsistent with what has already occurred with both Lot 6 and Lot 7. To help with your decision I would like to raise some possibilities. I would be willing to pay for any abandoned part of Korte Lane. I would be willing to sign an agreement that I would not split the land for x years. I am willing to consider other restrictions. I hope you look positively upon my requests and allow my family and me the stability to pursue my dreams. Sincerely, Don Scheer 9799 N. Korte Ln. Oro Valley, AZ 85737 219-4472 Vice Chairman Adler expressed that he did not see a need to overturn the decisions. He stated that there were other alternatives to the process that could be explored. Dee Widero, Senior Zoning Inspector reviewed the staff report. She explained that Don Scheer was requesting an Appeal of Administrative Decision regarding the split of Parcel 6 of Linda Vista Citrus Tracts. Parcel 6 had previously been split from its whole state into a 1/3 portion of 3.1 acres (8B on the Assessor's map) and a 2/3 portion on 6.1 acres (8A). She explained the Don Scheer, the owner of 8A would like to split his portion as is, or add a small portion of 8B to 8A and then split 8A. Ms. Widero reported that Mr. Scheer's request to split 8A was denied by the Town's Planning and Zoning Administrator, Bryant Nodine. She explained that Mr. Nodine determined that neither option proposed by Mr. Scheer met the Oro Valley Zoning Code Revised Sec. 6-203.A. She further explained that the subject property is currently zoned R1-144, requiring a minimum lot area of 144,000 square feet or 3.3 acres. Parcel 8A portion is only 6.1 acres (269,212 sq. ft.) and to split this portion would leave one or both portions under minimum lot size for the current zone. The second option, to add a portion of 8B to 8A, thus allowing a split of 8A in conformance with the Code, was denied on the basis that the remainder of Parcel 8B would then be further out of conformance with the Zoning Code. Ms. Widero reported that all property owners within 300 feet of the property had been notified by mail of the hearing and that the property is posted with a Notice of Hearing. The hearing was also advertised in the Daily Territorial Newspaper. She said that at the time of the report preparation, staff has had only one call opposing the possible split of the property. Staff has not received any other public comment supporting for or in opposition of the request. 2/27/01 Minutes 4 Board of Adjustment The following facts exist: • Minimum lot size is 3.3 acres for R1-144, Lot 7 parcels labeled 9B, 9C, 9D and Lot 6 parcel labeled 8B are all 3.1 acres, and are non-conforming. The remaining parcels within this subdivision are all greater than 3.3 acres. In addition, a petition was submitted to the Board signed by 21 citizens living in the area opposing the split of the property. The petition read as follows: "WE THE UNDERSIGNED, PROPERTY OWNERS IN THE TOWN OF ORO VALLEY STATE OF ARIZONA, LOCATED IN THE LINDA VISTA CITRUS TRACTS SUBDIVISION R1-144 ZONE WITHIN THREE HUNDRED FEET OF THE PROPOSED CHANGE DO HEREBY PROTEST GRANTING OV 10-01-01. THE APPEAL OF ADMINISTRATIVE DECISION SHOULD NOT BE GRANTED. OUR PROPERTIES ARE IN THE MORE RESTRICTIVE ZONE THAN THE PROPOSED CHANGE". Member Swan expressed his concern with the property becoming more non-conforming to the Zoning Code. He said that by granting the variance, regardless of what the size of the property, would be contradictory to the Code creating a paradox. He said that by granting the variance would set a precedent and encourage other homeowners in the area to split their property. Vice Chairman Adler referenced Acticle 1-8 of the Zoning Code and explained that a non-conforming use needs to be conformed. He said that the applicant could take a different approach and suggested proceeding through the Town and submit a rezoning application for the area. He said that maintaining the integrity of the Zoning Code was more important than a citizen's ability to raise funds for a new business venture. Chairman Suozzi opened the public hearing. The following citizens opposed the splitting of Parcel 6 located in the Linda Vista Citrus Tracts Subdivision: • Bill Hawley, 360 West Linda Vista • Gerald W. Korte, 460 West Linda Vista • Michael Redhair, 9812 North Canyon Shadow Place • Bob Gendreau, 485 West Atur Place • William Crawford, 500 West Linda Vista Chairman Suozzi closed the public hearing. Vice Chairman Adler stated that any homeowner had the right to request to have their property rezoned, but in this case, until the rezoning issue was addressed the present zoning rules and regulation should be maintained. 2/27/01 Minutes 5 Board of Adjustment MOTION: Vice Chairman Adler MOVED to DENY Case No. OV10-01-01 finding that in ARTICLE 1-8 NONCONFORMING USES and the property development standard of the Zoning Code should be maintained and non-conforming use need to conform when there is a change. (See attachment)Motion SECONDED by Member Swan. ROLL CALL VOTE Chairman Suozzi—aye Vice Chairman Adler—aye Member Done—aye Member Lewis— aye Member Swan—aye The motion carried to DENY the variance for Case No.OV10-01-01, 5-0. ADJOURNMENT MOTION: Member Swan moved to ADJOURN the meeting at 4:00 p.m. Motion SECONDED by Member Lewis. Respectfully submitted L/ (1Li da Hersha, Secretary II MINUTES BOARD OF ADJUSTMENT FEBRUARY 27, 2001 INFORMATION AND ORIENTATION SPECIAL SESSION 11,000 N. LA CANADA DRIVE ORO VALLEY,ARIZONA CALL TO ORDER at 4:05 p.m. PRESENT: Henry Suozzi, Chairman Bill Adler, Vice Chairman James Swan, Member Lyra Done, Member Cindy Lewis, Member STAFF: Dan Dudley, Town Attorney Bryant Nodine, Planning and Zoning Administrator Dee Widero, Senior Zoning Inspector Debbie Moran, Zoning Tech. Linda Hersha, Secretary II 1. APPROVAL OF MINUTES FROM THE STUDY SESSION HELD ON DECEMBER 19, 2000 AND JANUARY 26, 2001. MOTION: Vice Chairman Adler MOVED to APPROVE the minutes of December 19, 2000 and January 26, 2001, with the corrections noted. Motion SECONDED by Member Lewis. Motion carried, 5-0. 2. CONSIDERATION AND/OR POSSIBLE ACTION REGARDING THE RECOMMENDATIONS OF RULES & PROCEDURES BASED ON 12-19-00 AND 1-26-01 MEETINGS. The following is a draft summary of the recommended rules and procedure for the Board of Adjustment: (as discussed at the Board of Adjustment meeting of February 27, 2001) "Summary of Recommended Rules and Procedures for the Board of Adjustment" 1. Staff Duties: Clerk's Office • Make room arrangements, mail materials, take minutes and schedule meetings 2/27/01 Minutes,Board of Adjustment 2 Special Session Planning and Zoning Staff • Serves as primary contact for agenda issues, develops agenda and any revisions with direction of the chair • Notify all surrounding property owners • Coordinate all necessary reports/materials/exhibits for the Board consideration • Invite all necessary staff to Board meetings • Notify the Board by the 10th of each month if a meeting will or will not be held and Board members to notify staff of inability to attend a meeting • All materials and agenda shall be distributed to the Board by staff at least one (1) week prior to the meeting date 2. Board Duties: • As outlined in Article 1-7 of the Zoning Code as specified in the Board of Adjustment manual. (See attached) 3. The Applicant: • The applicant shall submit all materials with an application 15 days prior to the meeting date • The burden of proof is on the applicant and he/she should address the 5 Criteria in writing on the application • The applicant should submit in writing the fact that they are requesting a variance for more the one (1) issue, if applicable 4. Board Meetings: • The Board should stay focused and only discuss agenda issues and not discuss issues directly with the applicant, especially during a site visit (Except for questions of fact) • All questions and comments during the meeting shall go through the Chair • During the meeting the applicant should have the first"shot" at presenting their case prior to the staff report • Staff should identify each individual variance and all the issues involved • It was agreed that the Board could give the applicant some direction and may state their reason(s)why they voted aye or nay 5. Selection and Composition of the Board of Adjustment: • The Board shall be in accordance to the outline specified in Section 5, pages 11 and 12 of the Board of Adjustment Handbook"Desirable Attributes of Board Member."(See attached) • An"objective" evaluation process of a board members performance would be desirable and perhaps serve as a guideline for the Town Council and the Government Review Task Force 2/27/01 Minutes,Board of Adjustment 3 Special Session • The process to replace or re-appoint Board members shall begin by May 1St for new terms that commence on July 1st 6. Conflict of Interest: • Issues should be declared up-front so that the Board member can be fair, objective, and impartial and should not be personally involved 7. Relationship with other Boards/Commission/Council: • It was agreed that the Board of Adjustment minutes or excerpts regarding concerned issues should be distributed by staff in a timely fashion 8. Other: • It was suggested that a more"personal"notification letter be mailed to encourage public response and that the Board recommends to the Planning and Zoning that the radius should be increased to at least 600 or 1000 feet 9. Swearing in the Applicant • It was the consensus of the Board that the recommended oath for swearing in the applicant or witnesses be used and stated as follows: "Do your swear or affirm to speak (or tell) the truth, the whole truth and nothing but the truth." Member Lewis agreed that the radius for notification should be increased. She also suggested that the time of the meetings be discussed; and develop a procedure that identifies each issue pertaining to the variance when the application is submitted. She stated that she would prefer that the petitioner address the issues and not be the responsibility of staff. Member Done re-iterated that under the category"Procedures and Conduct", the fact that a member is allowed to discuss "questions of facts"when reviewing the site should be included. Member Adler gave some additional suggestions pertaining to the development of the agenda and various other topics: • A member of the Board should be allowed to request an item be added to the agenda • If a member has requested an item to be included on the agenda, he/she should be informed if the item has been omitted from the agenda before it is finalized • Review how exhibits should be handled when submitted at the time of the meeting • The Board should review the possibility of whether or not staff members from various departments should be available to answer questions regarding a case • Review the level of importance of the 5 Criteria to make a final determination as a group, because the Code does not stipulate that a finding has to be met 2/27/01 Minutes,Board of Adjustment 4 Special Session • There should be further discussion regarding the swearing in of the applicant In conclusion, Vice Chairman Adler stated that the request that the notification to the homeowner's be changed from the 300 feet radius to 1000 feet was an ordinance issue. He emphasized the fact that the Board may not be permitted to establish a rule that differed from the ordinance. Member Done expressed that the Board should take a serious concern regarding a "conflict of interest"to determine what would be considered a conflict. Mr. Dudley explained that the member should definitely follow the normal conflict rules and excuse him or herself from the meeting. He stated that a member should not declare a conflict by merely stating"I'm going to abstain". He further explained that the Board could choose to adopt ethical consideration as well as legal consideration,but,be aware of the results once the ethical guidelines are created. He said that once the guidelines are produced, the strictness could cause unintended consequences. Vice Chairman Adler stated that the Board would probably be unable to agree on how to define an ethical determination in relation to anything. He said that the Board should not be influence by perception. "The Board member has to decide for himself whether they have a legitimate role to play in their view, or whether or not they can be objective in their determination of the evidence. Therefore, the Board will have to trust one another to make the best judgement". Member Swan stated that the decision should be the individual to determine whether the case would be a"conflict of interest"and act accordingly. Chairman Suozzi explained that there had not been a consensus regarding the oath. He referenced the typical "Oath of Witness" for swearing in of the citizens intending to testify at a hearing. The typical or standard legal oath reads as follows: "Do you swear or affirm to speak(or tell)the truth, the whole truth and nothing but the truth". Although there may be other oaths that are given, this oath is typical for depositions and trials in Arizona. The Board agreed that this item should be included in the final draft of the Board of Adjustment Procedures. Member Done felt that it was important that each witness or applicant be sworn in individually. Chairman Suozzi and Member Lewis agreed. Vice Chairman Adler disagreed and stated that legally the oath had no impact on the applicant. He said that the only reason any person would be sworn in would be to charge the person with perjury; therefore, he considered the oath a meaningless act because it did not obligate someone to tell the truth. He said the oath should be eliminated. Mr. Dudley explained that it was not a requirement to swear in a witness or applicant under the State Statues or under the Town Ordinance. He recommends that the Board swear in witnesses because the court is more comfortable with the procedure when 2/27/01 Minutes,Board of Adjustment 5 Special Session reviewing the evidence. He added that he did not know of any cities or town that did not use the method during a case hearing. Vice Chairman Adler stated that he would be willing to withdraw the issue regarding the oath, but wanted to register his opposition. He stated that if the courts were convinced that the oath was important, the statute would be changed and would make the oath a requirement. MOTION: Member Done MOVED to INCLUDE the"Oath of Witness" as a part of the procedure when conducting a Board of Adjustment hearing. Motion SECONDED by Member Lewis. ROLL CALL VOTE Chairman Suozzi—aye Vice Chairman Adler—nay Member Done—aye Member Lewis—aye Member Swan—aye Motion carried, 4-1, with Vice Chairman Adler opposed. 3. CONSIDERATION AND/OR POSSIBLE ACTION REGARDING CHANGING THE TIME OF REGULAR BOARD OF ADJUSTMENT MEETINGS MOTION: Member Done MOVED that the Board of Adjustment meeting continue to be held at 3:00 p.m. Motion SECONDED by Member Swan. Discussion: Member Done stated that the reason she felt that the schedule should be remain at the current time was because no matter what time the meetings are held, the only time it will become issue is when it affects an individual on a personal level. Member Swan called for the question. Motion carried 3-2, Chairman Suozzi and Vice Chairman Adler opposed. Chairman Suozzi opened the floor for discussion regarding the possibility of increasing the notification radius from 300 square feet to 600 or 1000 square feet. Vice Chairman Adler explained that the issue regarding the notification has been placed on the Planning and Zoning Commission work plan. He felt strongly that the notification radius of 300 feet or even the 600 feet radius was to small of an area when major projects are under construction. He considered the issue to be a Commission agenda item because it would require a revision to the ordinance. He stated that the Board could make a recommendation to have the revision made. 2/27/01 Minutes,Board of Adjustment 6 Special Session Chairman Suozzi asked if any of the other Boards used the 300 feet radius. Ms. Widero replied, "No, some of them go up to 600 feet. I would like to add that the 300 feet or 600 feet does not only go from the center of property,but from the perimeter of the property." She explained that there would have to be an ordinance change in order to change the radius which has to go before the Planning and Zoning Commission. Mr. Nodine suggested that staff could provide the additional mailing labels beyond the 300 feet minimum required by the code, but he would prefer to see that the burden be placed upon the applicant. Mr. Dudley explained that occasionally the Town has gone beyond the minimum requirements and inadvertently omitted a citizen of notification in the area. He explained that those citizens believe that they are an aggrieved party and believe since they were not notified, they could challenge that fact in the Superior Court,which is fairly strict in their interpretation. He explained that by increasing the radius, it would open the door for more opportunity for error. Member Done expressed that she did not want to see the Town become liable and involved in a possible lawsuit that would potentially fall apart in court. Mr. Nodine explained that typically for rezoning, a 600 feet radius is used because it would be considered a major change in land use that could affect a broad area. He explained that there were several things that would need to be considered when reviewing appropriate notification. He said that a lot of the decision would be base upon common sense. MOTION: Vice Chairman Adler MOVED that the Board of Adjustment recommend that the Planning and Zoning Commission review the Ordinance as it relates to notification parameters and with the help of Staff,review expanding the notification radius appropriately. Motion SECONDED by Member Done. Member Done called for the question. Motion carried, 5-0. ADJOURNMENT MOTION: Member Lewis MOVED to ADJOURN the meeting at 5:10 p.m. Motion SECONDED by Member Done. Motion carried, 5-0. Res i ectfully submitted /i 4.) Linda Hersha, Secretary II