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HomeMy WebLinkAboutMinutes - Board of Adjustment - 1/26/2001 MINUTES BOARD OF ADJUSTMENT INFORMATION AND ORIENTATION MEETING STUDY SESSION JANUARY 26, 2001 COMMUNITY DEVELOPMENT 11,000 N. LA CANADA DRIVE ORO VALLEY, ARIZONA CALL TO ORDER at 2:10 p.m. PRESENT: Henry Suozzi, Chairman Bill Adler, Vice Chairman James Swan, Member Lyra Done, Member arrived at 3:05 p.m. Cindy Lewis, Member STAFF: Kathryn Cuvelier, Town Clerk Dan Dudley, Town Attorney Bryant Nodine,Planning and Zoning Administrator Dee Widero, Senior Zoning Inspector Debbie Moran, Zoning Tech. Susan Baczkiewicz, Civil Paralegal Linda Hersha, Secretary II 1. APPROVAL OF MINUTES—DECEMBER 19, 2000 STUDY SESSION MOTION: A motion was made by Vice Chairman Adler to continue the Study Session meeting minutes of December 19, 2001 with the correction noted to the next regularly schedule meeting or Study Session meeting. Motion Seconded by Member Lewis. ROLL CALL VOTE Chairman Suozzi—yes Vice Chairman Adler—yes Member Lewis—yes Member Swan—yes Motion carried, 4-0. 2. BOARD RULES (IF ANY), SELECTION OF MEMBERS, BOARD COMPOSITION,ETC. Chairman Suozzi stated that the Riggins Rules detailed some suggested rules and asked if the Board wanted to review any of the rules that were listed. 1/26/01 Minutes,Board of Adjustment 2 Study Session Vice Chairman Adler referenced Riggins Rules #29 (DO NOT FAIL TO GIVE A REASON when making a motion for approval OR denial of an applicant's request. If you fail to do this, the applicant, any objectors, a reviewing body of higher authority of the COURTS may well assume that your decision was an arbitrary one not supported by the facts and should be reversed. Always mention the staff recommendation.) He explained that at the previous meeting, there was divided opinion as to whether the members should be requested to give a reason for the vote or not, and have a document developed by the Department of Commerce which was not included in the Board of Adjustment (BOA)Handbook. He explained that the article recommends that the Board Member should give an explanation for his or her findings. He suggested that the when having a meeting for the purpose of adopting rules, there should be an agenda. He said that his second question in connection with rules was if they required the swearing in of the applicants and witnesses. Dan Dudley, Town Attorney stated that it was not a requirement under state law, to swear in the applicants and witnesses but suggested that the concept not be waived. He further explained that there was no required oath for swearing in the applicants and witnesses. He explained that the language for oath is somewhat standardized. Vice Chairman Adler suggested that the Board adopt a rule that an oath appears on the agenda with specific language that would be consistently used for swearing in witnesses or applicants. Chairman Suozzi asked for staff to submit to the Board recommended language that could be used for the oath. Vice Chairman Adler suggested that there should be rules governing questions of staff verse questions of the applicant. He said that the Board should receive additional education as to the kinds of questions asked of staff verses those questions asked of the applicant. He said that he would offer this as an item on the agenda when the rules are actually formalized. Member Swan asked Vice Chairman Adler if there were any specific recommendations for rules or a format that could used. Vice Chairman Adler replied, "yes."He explained that he did have a specific suggestion, but was more interested in placing this item on the agenda so that when the Board gets to the point of adopting or considering rules and procedures, this could be one of them. Mr. Dudley stated that he had concern with the way that the information was being produced. He emphasized that he perceived the Board as an informal courtroom setting. He explained that it was the burden of proof applicant to convince the Board. He feels that the way the procedures are currently set-up, Dee Widero, Senior Zoning Inspector, is carrying the applicant burden and/or providing the background information. He explained that the applicant should have the first shot at making their case in front of the Board instead of the Town. 1/26/01 Minutes,Board of Adjustment 3 Study Session Bryant Nodine, Planning and Zoning Administrator recommended not necessarily modifying the application,but recommend that the applicant presents provide the bulk of the information regarding the case. He said that the applicant's presentation should include addressing a variance that consists of more than(1) issue. He explained that it could not be considered if it has not been included in the notice. Therefore, the title at the beginning of the staff report should indicate specifically what items are being requested terms of the variance. Mr. Dudley agreed with Member Lewis as felt that the application should be in an amended format. He explained that if a request for variance was amended, and as long as it was properly noticed that this would work when producing pleadings in his legal opinion. He said that if it doesn't create any additional problems there would be more symmetry to the system. Mr. Nodine clarified that the Board would like the application to reflect the fact that the applicant would need to submit something in writing to indicate that they were requesting a variance for more than (1)particular issue. Member Lewis replied, "that is correct." Chairman Suozzi concurred that if the application was not completely revised that there should be an addendum attached reflecting that there was another issue in the application that needed to be addressed. Mr. Nodine explained that staff should identify each individual variance and make sure that the Board is aware of all the issues that were relative to the case. He said that the applicant should address all of the issues pertaining to the case. He explained that he would need to consult with the Town Attorney to make sure staff was taking the right approach. Vice Chairman Adler suggested that the Board obtain an understanding of what the agenda would allow in regards to peripheral discussion. He explained that this would allow the Board to develop a reasonable set of parameters. He said that the "site tours" should also be discussed. He suggested that staff should organize a"site tour"with the members of the Board to view the site. Chairman Suozzi agreed with Vice Chairman Adler regarding the "site tours". He stated that this issue was actually addressed in the BOA handbook. He said that the manual also states that if a staff member was not available, the Board member could visit the site on his or her own. Member Lewis stated that as far as procedures were concerned, if the applicant was willing to make modifications or accept suggestions and changes, the Board could approve the variance based upon those suggestions. She felt that if the Board could give 1/26/01 Minutes,Board of Adjustment 4 Study Session the applicant some direction, that it was the Board's responsibility to do so. Chairman Suozzi agreed. Member Done arrived at 3:05 p.m. Member Swan stated that in his opinion each individual that serves on the Board is unique. Therefore, he or she may need to ask particular questions in an attempt to obtain the information relevant to make an adequate evaluation. He added that there was a learning curve; new member has to learn the appropriate questions to ask to generate appropriate action. He felt that the members should have free reign. Chairman Suozzi opened the discussion concerning the "Selection of Members and Board Composition." He referenced to page 11 and 12 in the Board of Adjustment Handbook Section 5, Board of Adjustment Basic "Desirable Attributes of Board Members which lists the following qualifications: • An interest in zoning and planning and a willingness to learn about them. • Time enough to learn about the business of the board and to prepare for meetings and hearings. • An open, impartial, and orderly mind. • Honesty and fairness. • The ability to envision and consider the long-term effects of a decision and to put them ahead of any short-term changes. • The ability to put the public good above the welfare of individual applicants when making your decisions. • The ability to be articulate at public meetings and hearings. • A commitment to enforce the zoning laws as they are, and not let your disagreement with parts of them sway your decisions. • A commitment to work for the improvement of the zoning ordinance. Member Swan stated that the decision was the responsibility of the Council and that it should remain that way. However, if the Board wanted to draft some reasonable qualifications for members that could be used as a guideline for Council, that would be an option. Vice Chairman Adler stated that the Board members could individually, or as a group offers some suggestions regarding the qualification to the Government Review Task Force(GRTF). He added that he was already developing a draft for the GRTF and encouraged the other Board members to do the same. Mr. Dudley explained that there is difficulty with signing a letter of recommendation as a group because of the Open Meetings Law. Chairman Suozzi suggested that each board member create their own personal list of ideas and submit them at the next meeting. He explained that these items would be reviewed and submitted as a group effort to the Town Council. 1/26/01 Minutes,Board of Adjustment 5 Study Session Mr. Dudley stated the he was concerned about whether the Board had the ability to take formal action on item such as this. He explained that if the Board member signs off on the document, it represents taking formal action. He said if it's not"agendized" for formal action that the Board could not vote on it. Therefore,by submitting a letter with everyone's signature, it would be effectively the same as a vote. Vice Chairman Adler suggested the a member could written the task force as a citizen, instead of as a member of the BOA, relating in the letter how they felt regarding the selection and qualifications of a new member. Member Lewis felt that it was inappropriate for Board members to develop a guideline of what new members should look like because it should be a diverse group of people. She said that this procedure should be the responsibility of the Town Council and Staff. Mr. Feinberg a member of the Government Review Task Force (GRTF) stated the GRTF has received a couple letters from the BOA. He informed the Board that before the GRTF sent any recommendations to Council all of the board would be given an outline of the report. He suggested at that time that the Boards could submit their suggestions. Chairman Suozzi agreed. Member Swan asked Mr. Feinberg if there was a set timetable in which the report would be available. Mr. Feinberg replied maybe in a month or two. Mr. Dudley suggested that the staff could provide the BOA with the minutes from the GRTF on a regular basis for review. Mr. Nodine suggested asking members of the GRTF to attend the BOA Study Session, present what they are considering and ask questions, giving the Board an opportunity to respond. Member Swan extended an open invitation to Mr. Feinberg and Mr. Dvorak for the GRTF members to attend the BOA meetings. 3. CLARIFY "CONFLICT OF INTEREST" ISSUES AND CIRCUMSTANCES Chairman Suozzi stated that this was another item that is addressed in Section 5 of the BOA handbook. Mr. Dudley stated that if a member had a perceived economic benefit or detriment as a result of granting a variance, then he or she should excuse themselves. He said that since this item had been discussed at the previous study session,he had no additional information to provide. 1/26/01 Minutes,Board of Adjustment 6 Study Session Member Done felt that a conflict of interest did not necessarily have to involve money. She said that to maintain the credibility of the BOA, the members must never allow themselves to get personally involved. Mr. Dudley explained that by law a"conflict of interest"only pertains to having a financial interest. He explained that if it is a friend there is no conflict,but if it is a relative it would be considered a "conflict of interest". He suggested that Board members use the words "I have a conflict of interest" very carefully. They should onlybe applied to a legal conflict,which would be an economic interest. If a project was in the same neighborhood or next door to the member, he suggested that the member say"as a matter of conscience I feel that I should refuse myself." He informed the Board that there is a form available in the Clerk's Office that would need to be signed if there was a conflict of interest. 4. SUGGESTIONS ON HOW TO BE FAIR, OBJECTIVE,IMPARTIAL AND AN ACTIVE MEMBER No comments were made on this item. 5. RELATIONSHIP OF THIS BOARD WITH OTHER BOARDS (P&Z,DRB, ETC., ESPECIALLY WHEN RELATED ITEMS ARE INVOLVED Member Swan stated that in his opinion the BOA was a Board of last resorts. He said if there were any other issues concerning the case, it should be done prior to coming before the Board of Adjustment (BOA). Mr. Nodine explained that there were rules and procedures that should be followed by the applicant. He explained that it was appropriate for the applicant to come before the BOA first and then the applicant could take those conditions before another board for consideration. He stated that the key to the matter is to be very clear in the motion the intentions of the Board. Vice Chairman Adler asked that if a motion was made and the member wanted to change the motion, could the Board restate the motion? Mr. Dudley stated that there was case law that provided for reconsideration. He added that the motion to reconsider should be made at or before the next meeting. Member Lewis suggested creating a notice to send the applicant once the reconsideration had been file. Mr. Dudley replied "Bryant and I will look into that." Vice Chairman Adler felt that it was very important the build a relationship with other Boards and Committees. 1/26/01 Minutes,Board of Adjustment 7 Study Session Member Lewis asked when a case is moved to the next level if the BOA minutes were automatically included. Mr. Nodine stated that the motion has been included in the past,but felt that it would be a good idea to include the minutes in the future. He said that staff could use excerpt for those issues of concern, and distribute them to the committees and boards. Vice Chairman Adler had concern with the BOA and the Town Council. He felt that the BOA was being pre-empted and explained that to be consistent, to a project meet or doesn't meet acceptable code it should come before the BOA and not the Town Council. He expressed the Board needs more work. Mr. Nodine stated that flexibility is set up so that all cases don't necessarily have to come before the Board of Adjustment (BOA). He explained that in general if a person is asking for relief from the code for a specific reason, then the applicant might take his case before the BOA. However, for cases such as grading exceptions or golf course overlay district there are provisions in the code that say the Council has the authority to grant waivers. He said that he had not seen an issue where Council had taken action to grant exceptions or variance to the code. Mr. Dudley explained that if there is a variance request it absolutely has to come before the BOA. He explained that the Town Council does not have the authority to grant a variance according to the code. He said the Town Council only has the authority in limited circumstances, and it would not truly be a variance. In addition, the zoning administrator interpretation must come before the BOA. In conclusion,he stated that if the Town Council choose, they could be the Board of Adjustment (BOA). Vice Chairman Adler asked that if there were not any staff members available for resource purposes, could the Board continue the item. Mr. Dudley explained that it would be appropriate to continue the item if this Board did not feel they had the proper information and appropriate staffing to make a decision. Mr. Nodine stated that the Board members could contact staff ahead of time for information to get a better understanding of the case. 6. CLARIFY HOW RECOMMENDATION(S), DECISION(S), CONDITION(S) ARE COMMUNICATED WITH OTHER BOARDS, STAFF,TOWN COUNCIL Chairman Suozzi stated that both Items 5 & 6 were covered in the previous discussion and he moved forward to Item 7. 1/26/01 Minutes,Board of Adjustment 8 Study Session 7. OTHER QUESTIONS,CONCERNS, ETC. Chairman Suozzi opened the discussion regarding the time of the meeting. He stated that personally he approved of having the meeting at 3:00 p.m., but he was interested in having better attendance from the citizens of the Town. Member Lewis suggested meeting after 5:00 p.m. Member Done felt that there was not a lot of input coming in from the citizens at large. Kathryn Cuvelier, Town Clerk, stated that the citizens could submit a letter that to be included with the applicant's application, and it would then be on file regarding the case. Vice Chairman Adler had concerns with the issue regarding notification. He said that the 300 feet radius did not include many people. He expressed that giving people an opportunity to participate is very important. Chairman Suozzi suggested creating a more personal letter that would encourage the citizens to attend the meeting. He asked if the radius could be changed to 600 feet or 1000 feet. Mr. Nodine explained that the code states that the citizens within the 30-0 foot radius had to be notified, but it doesn't say if a greater radius could be used. Member Swan asked if the code could be changed. Mr. Nodine replied, "yes, absolutely." Vice Chairman Adler asked for an estimated cost to the Town to have staff on hand with overtime if the Board were to have a 6:00 p.m. meting. Mr. Nodine stated that an average cost with benefits would be around $25.00 per hour per staff person. He informed the Board that staff was taking the work plan to the Planning and Zoning Commission on the 6th of February, and he would make a note that the BOA has requested that the"Notification Code"be reconsidered. Ms. Cuvelier explained the since this was not an item listed on the agenda, the BOA could bring this item forward at the next meeting and vote in order to give staff direction. Vice Chairman Adler asked if staff would consider having a 6:00 p.m. meeting on an experimental basis. Vice Chairman Adler stated that Planning and Zoning typically has a pre-application conference with the applicant. He asked if there was any advantage to this based upon certain contentious issues. 1/26/01 Minutes,Board of Adjustment 9 Study Session Mr. Nodine expressed that this should be a question directed to the Town Attorney, who was unavailable at this time. He explained that because the Board was a quasi-judicial body he had concerns. He explained the Board should obtain as much information as possible and suggested the following: • Take the site tour • Getting questions to staff before the meeting • The applicant could be alerted in regarding a questions that may need to be addressed at the hearing. • The Board could choose to call a continuance if they did not feel there was enough information to make an adequate decision. Chairman Suozzi suggested that the Board members bring their BOA handbooks to the next meeting. He opened discussion for suggestions regarding a new date and time for the next Study Session meeting. Vice Chairman Adler suggested having the next meeting on the 27th of February immediately following the regularly scheduled meeting. The Board and Staff members agreed. ADJOURNMENT Chairman Suozzi adjourned the meeting at 5:00 p.m. Respectfully submitted, a � dir in.a Hersha, Secretary II