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HomeMy WebLinkAboutMinutes - Board of Adjustment - 12/19/2000 MINUTES BOARD OF ADJUSTMENT INFORMATION AND ORIENTATION MEETING STUDY SESSION DECEMBER 19, 2000 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 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. Linda Hersha, Secretary II 1. ROLE, RESPONSIBILITIES, MANDATE Bryant Nodine, Planning and Zoning Administrator, explained that the roles and responsibilities of the Board of Adjustment(BOA) have been well established by the Town Zoning Code and by Arizona State Law. Discussion continued regarding the following issues: • Appeals • Zoning and Boundaries • The 5 Criteria update • To implement an evaluation process for Board member's when their term expires and require each Board member participation. • The composition of the Board • A description of duties, goals and expectations Dan Dudley, Town Attorney stated that the Board of Adjustment could be designated as a "prior of fact" board for any issue that would not be limited by the Zoning Code. 12/19/00 Minutes,Board of Adjustment 2 Study Session Vice Chairman Adler stated that in connection with interpretation for matters unrelated to land use,the Board would need to get advice on criteria to make a suitable judgement. He said that if the Board were to be entirely subjective with regard to making a ruling based upon the applicant's testimony, there could be several different subjective interpretations. He said that by not having any standards to follow, there could be a non- decision made based upon the interpretation given to the Board by staff. Mr. Dudley speculated that these cases would be presented to the Board in the same manner that it is presented to the court, which would be providing the facts, the statutes and case law information. Vice Chairman Adler made a suggestion with regards to the role responsibility to mandate the Board to start implementing the evaluation of one another. He said the current process performed by the Town Council, which unilaterally dismisses people without explanation, or justification was offensive to him. He explained that if the Board members reviewed each other, the information could be given to Council as a reference point to review when the member's term expires. Member Swan stated that one aspect of the Council's evaluation was to get more citizens involved in Town government. He said "if that means bringing in a new face to replace an old face regardless of what their performance was, I can't argue with that." Chairman Suozzi explained that he had been informed that the Government Review Task Force (GRTF) was addressing this issue and would be presenting a report to Council in the near future. He suggested that the Board review the report. Member Lewis suggested that the Town Council develop a job description of duties as a guideline for the Board. Mr. Nodine stated that he would keep the Board abreast of any updates or changes regarding their job description and duties. Mr. Dudley explained that Article 1-7 describes the Board of Adjustment(BOA) duties and functions. He added that unless the Council broadens these functions that this was the extent of their duties. (See attachment.) He stated that the Board was a"quasi judicial" body and explained that as a board member each person could discuss items with other boards and commission individually, but recommended that they did not. Mr. Nodine gave a brief outline of the duties performed by staff. Clerk's Office • Making room arrangements • Mailing of materials • Minutes of meetings • Scheduling of meeting with the direction from Planning and Zoning 12/19/00 Minutes,Board of Adjustment 3 Study Session • Posting the agenda • Contact issues concerning the agenda, with the direction of Planning and Zoning Planning and Zoning • The Chair should be aware of any revisions that are made to the agenda. • Planning and Zoning Department is the primary contact for issues pertaining to the agenda. • The Planning and Zoning Department develops the agenda with the Chairman's direction and the applications submitted. • The Planning and Zoning Department will notify the property owners within the 300 feet radius of the public hearing. Mr. Dudley explained that from time to time there has been a misunderstanding as to what the function of staff is as it relates to an item. He explained that staff and the Board were required by law to consider application for variances, and that staff had very little control over what is presented. Member Swan asked if there were set guidelines as to the type of exhibits that are submitted. Mr. Nodine replied "absolutely." He added that if the exhibits were not provided the application would be rejected. Member Swan suggested that any exhibits submitted at the time of the hearing be rejected. He explained that it was difficult to read and review the documents during a meeting. Mr. Dudley explained that the Board could make it a requirement that all exhibits are submitted before the application comes forward. Vice Chairman Adler disagreed and suggested that a staff member be in attendance as it relates to the case. He explained that if the Board does not know what's required to make a reasonable judgment about a matter, the resources would be available to answer any questions. He said, "if the applicant brings in an exhibit that pertains to their request for a variance, I think they should be allowed to submit that." He felt that having a staff member that was familiar with the case would be resourceful. Dee Widero, Senior Zoning Inspector suggested that if an applicant brought in an exhibit to be reviewed during the time of the hearing, the Board could call a recess. She explained that a packet should be submitted to the Planning and Zoning Department within a 21-day time period. Mr. Nodine agreed with Ms. Widero and explained that there wasn't any protocol or rule setting a time limit. But, the Board could make it a rule to have a staff member available from the various departments. 12/19/00 Minutes,Board of Adjustment 4 Study Session Member Done reiterated that if there are no applications for review, the Board should be notified by the 10th of the each month. Discussion followed regarding the Board of Adjustment Application and the 5 Criteria. The following suggestions were made: • All exhibits should be submitted with the application on or 1 week prior to the meeting. • Packets are delivered 1 week prior to meeting. • Notify the Board members as soon as possible when a meeting has been canceled. • Members should notify Dee Widero if they are unable to attend a meeting. • A staff member should be present from the various departments for resource purposes, depending upon the subject matter and content of the application. 2. FIVE CRITERIA FOR VARIANCE Dan Dudley, Town Attorney explained that the 5 Criteria require a finding upon sufficient evidence. The following recommendations were discussed: • The applicant should address the findings accordingly. • The applicant should show proof why their variance request has met the 5 findings. • The Board will expect the applicant to respond to questions regarding the 5 findings. • The 5 findings as to how they relate to cell communications Chairman Suozzi stated that the applicant should be capable of answering questions from the Board regarding the 5 findings. Member Swan asked if the 5 findings were required in the application. Ms. Widero replied, "no, they are not." Mr. Nodine gave a brief outline of the materials required when submitting a Board of Adjustment Application: 1. Plans that indicate the nature of the project and its proposed use. 2. Evidence that indicates the intention of the applicant to proceed with the actual construction. 3. Filing fee (All documents are retained for public availability.) Mr. Nodine stated that there was not a clear requirement in the Code that states that the applicant should address the 5 findings in the application. Mr. Nodine explained that the S criteria are attached to the back of the application and the applicant is instructed to address them. Member Lewis stated the if the 5 criteria were included and addressed, then it would be easier to determine if the applicant has a good argument, which would allow the Board to make sufficient ruling. She asked if the 5 finding could be addressed in the application 12/19/00 Minutes,Board of Adjustment 5 Study Session Mr. Dudley stated that legally the Board could make the criteria a mandatory requirement on the application. Vice Chairman Adler reiterated, "as far as the 5 criteria are concern we have discretion as to how to apply them." He said, "if you insist that they make a very specific case in writing and in their presentation as to the compliance or conformance with the 5 criteria, we would be getting ourselves into a mind set. If the applicant did not make their case, then either their case should not come before the Board at all or would be denied. I think that this would be contradictory to my understanding which calls for some judgement." Mr. Dudley gave a brief definition of a"Special Privilege"—an adjunct to equal protection. (Example: "If there is more than one applicant with similar circumstances, both applicants should be treated the same.") He further explained that under the Arizona State Law the Board of Adjustment is a quasi-judicial Board that hears and decides appeals for variances from the terms of the Zoning Ordinance and hears appeals of the decision of the Zoning Administrator. Vice Chairman Adler stated that in regards to wireless communication applications for variance, none of the 5 criteria would apply because there were not any unique circumstances. Mr. Nodine agreed. Mr. Dudley stated that if the 5 finding are not met, the Board should not grant a variance. He added that the owner of the property normally applies for variances. Chairman Suozzi stated that the 5 criteria should be addressed in the application regardless if the applicant is the property owner or not. Members Lewis stated that a regular homeowner that is not familiar with procedures at a meeting would be very uncomfortable and would need guidance to present their case. Member Lewis stated that she would be in favor of having the applicant respond specifically to each of the 5 findings. Chairman Suozzi felt that these findings were a statement of fact and not necessarily a question to get a response from the applicant. Member Swan stated that the burden of proof was up to the petitioner to provide, and that it was up to the Board to decide if the proof submitted was acceptable to grant a variance. Mr. Nodine stated if there was no objection by the Board, staff would insert the 5 finding on the application. He explained that the 5 findings had already been established as requirement in the Code, but they could for under the supplemental questions section on the application. Mr. Dudley reiterated that the Board could decide by rule to require the 5 findings on the application. He explained that the Town Ordinance is based upon State Law Statues, and 12/19/00 Minutes,Board of Adjustment 6 Study Session that under State Law the Board of Adjustment is to, "hear and decide appeals for variances from the terms of the zoning ordinance only if because of special circumstances applicable to the property, including its size, shape, topography, location, or surroundings the strict application of the zoning ordinance will deprive such property of privileges enjoyed by other property of the same classification in the same zoning district." He explained that the difference between the State Law and the Town Ordinance was the word "including". He said that the use of that terminology indicates that there are other facts that could be considered. He said that in reference to Vice Chairman Adler question regarding the cell tower, the Council could amend that particular provision so that other facts could be introduced. • Regarding Criteria"E"—the authorizing of the variance will not be materially detrimental to persons residing in the vicinity, to adjacent property, to the neighborhood or the public in generals," Chairman Suozzi asked how would the Board define "vicinity." Mr. Nodine explained that the finding gave the Board a very broad range to consider. Mr. Dudley further explained if the Board denied a variance and later the case were taken to Superior Court, there would be a limited number of individuals and entities that would be allowed to appeal the decision. He explained that one of the criteria that would be reviewed by the Superior Court would be determining who had any standing interest and how close they are in proximitely to the property. He said that case law stated that they would have to be in the immediate area which would be the adjoining property or property directly across the street. He explained that the word "materially" did not mean "financial materially" but "substantially materially" rather than economically. 3. RECOMMENDED PROCEDURES/CONDUCT OF MEETINGS • The Board members should not discuss any issues that are not on the agenda before, during or after meeting. To do so, would be a violation of the Open Meeting Law. • Board members should not discuss issues with the owner or applicant when inspecting the site. • Questions of fact can be discussed when reviewing the site. • Stay focused during the presentation. • All questions during the meeting should go through the Chair. • All documents that are submitted at the meeting should be given to the Clerk for proper distribution. • All applicants could be sworn in at once. Member Done suggested that all Board members receive a copy of Robert's Rules of Order Guidelines. An update prepared by Mr. Dudley and Ms. Cuvelier was given to the Board regarding motions, priority and order when conducting a meeting. 12/19/00 Minutes,Board of Adjustment 7 Study Session Vice Chairman Adler stated that it was very important to follow to agenda item and suggested that the Board stick with the item presented to them during a meeting. He asked if the Board could request for an expanded point of view from those citizens that were in opposition a case. Mr. Dudley stated that this type of action would not be appropriate and that the information should be received in some written form so everyone could see it. He added that this information should be requested and obtained from Dee Widero, the Zoning Inspector. 4. ANY BOARD RULES AND IF SO,WHAT? Mr. Nodine explained that this was a separate item that needs to be addressed regarding how meetings are conducted and if Roberts Rules should be used. He suggested that another meeting be scheduled. The following concerns were discussed regarding: • Limiting speakers to 3 minutes or should the applicant be allowed to speak longer. • Should minutes reflect the reason why a Board member votes aye or nay? • An additional Study Session will be held in January to continue discussion on Board Orientation and Training. In regard to Vice Chairman Adler's question regarding a member's vote aye or nay, Mr. Dudley stated that from a personal perspective, that as a government, the Board owed it to the citizens to tell them the reasons why a decision was made. He said that from a legal perspective and to best protect the decisions made, he recommended that the reason for a vote should be withheld. Mr. Nodine explained that if it is a recommending body, it was very helpful to know why the recommendation was being made. Member Swan felt that the burden of why a member makes his or her motion should be so stated succinctly. Several members of the Board agreed that the decision to state their reasons why they voted aye or nay should be left up to the individual. The next meeting was scheduled to be held on Tuesday, January 9th at 3:30 p.m. ADJOURNMENT Chairman Suozzi adjourned the meeting at 5:10 p.m. Respectfully submitted, 11// * ' i1f At. ' cJ in•. Hersha, Secretary II ADMINISTRATION ARTICLE 1-7. BOARD OF ADJUSTMENT Sec. 1-701 Scope The Board of Adjustment shall hear and decide requests for variances and appeals of interpretations of this Code in accordance with A.R.S., Section 9-462.06. Sec. 1-702 Powers and Duties A. Interpretation The Board of Adjustment shall interpret this Code on appeal when: 1. There is a dispute between the appellant and the Planning and Zoning Director or other Town Official as to a decision or interpretation as set forth in Sec. 1-706; or 2. The location of a zoning district is in doubt. B. Variances The Board of Adjustment may allow variances from the provisions of this Code in accordance with Sec. 1-709, Findings. Sec. 1-703 Meetings, Administration of Oaths and Compelling Attendance of Witnesses All meetings of the Board shall be held at the call of the Chairman and at such other times as the Board may determine. All meetings of the Board shall be open to the public. The Chairman, or in his absence, the acting Chairman, may administer oaths and compel the attendance of witnesses in accordance with the laws of the State of Arizona. Sec. 1-704 Composition A. Appointment: The Board of Adjustment shall be composed of five members appointed by the Town Council. E. ij : Appointments are for staggered terms of two years each with no limit on the number of terms. C. Vacancies: Vacancies shall be filled for the unexpired portion of that term within a reasonable time period as provided for by appointments of the Town Council. Oro Valley Zoning Code Revised 1 - 1 1 (Rev.8/94) ADMINISTRATION D. Removal: The Town Council has the authority to remove, by majority vote, any member for neglect of duty, inefficiency or misconduct in office. Sec. 1-705 Transaction of Business A. The Board of Adjustment shall conduct its business in accordance with the Arizona Revised Statutes and applicable Town regulations and any rules and procedures as adopted by the Town Council. F The Town Clerk, or an appointed representative from the Town Clerk's office, shall serve as the Executive Secretary of the Board of Adjustment and the minutes and records of all board proceedings will be kept and filed as public record in the files of the Town Clerk. Sec. 1-706 Appeals from Administrative Decisions Appeals may be taken to the Board of Adjustment by persons aggrieved or by any officer, department, board or bureau municipality of the affected by a decision of an administrative official, within 30 days, by filing with the officer from whom the appeal is taken, and with the Board of Adjustment, a notice of appeal specifying in the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit all papers constitutingthe record upon which the action appealed from was taken. Said appeal shall be filed on a form provided by the Town Clerk. A. Ana appeal shall stayall proceedings in the matter appealed from unless the officer from whom the pP appeal is taken certifies to the Board that, by reason of the fact stated in the certificate, the stay would, in his . Po inion cause imminent peril to life or property. In such case, proceedings shall not be stayed, except byrestraining order granted by the Board or by a court of record on application and notice to the officer from whom the appeal is taken. The Board shall fix a reasonable time for hearing the appeal and give notice thereof to the parties in interest and the public. 5. The concurringvote of a majority of the Board shall be necessary to reverse any order or decision of an administrative official, or to pass or to affect any variations from the terms and conditions of this ordinance. Sec. 1-707 Application for Variances Application for a variance of zoningregulations shall be made to the Board of Adjustment in the form of a written application. Said application shall be filed with the Town Clerk upon forms provided by the Board of Adjustment and shall be accompanied by: Oro Valley Zoning Code Revised 1 - 12 (Rev.8/94) ADMINISTRATION A. Plans and description sufficient to indicate the nature of the project involved and the proposed use with ground plans and elevations of all proposed buildings. B. Evidence satisfactory to the Board of Adjustment of the ability and intention of the applicant to proceed with actual construction work in accordance with said plans within 6 months after issuance of the variance. C. A filing fee according to the fee schedule adopted by the Town Council. The owner of a nonconforming sign shall not be required to pay a filing fee when applying for a variance from the ordinance that renders the sign nonconforming. D. From the time of filing the application until the time of such hearing, the application and all maps, plans and other accompanying data shall be available for public inspection during office hours at the office of the Town Clerk. Sec, 1-708 Hearing and Notice Upon receipt in proper form of any such application, the Board of Adjustment shall proceed to hold a public hearing upon said application not more than 30 days, nor less than 15 days, after such filing, at which time allP ersons shall be given an opportunity to be heard. Such Board of Adjustment shall cause one notice of such hearing to be published in a newspaper of general circulation in the town of Oro Valley and one notice to beP osted on the subject property, giving at least 15 days notice of said hearing, and the time and place where said hearing will be held. Said notice, both as published and posted, shall also show the nature of the variance or exception requested and state that anyone wanting to protest may appear in person or by writing. All property owners within 300 feet must be notified. Sec. 1-709 Findings A variance from the provisions of this Code shall not be authorized unless the Board shall find upon sufficient evidence: A. That there are special circumstances or conditions applying to the property referred to in the application including its size, shape, topography, location or surroundings which do not apply to other properties in the district; and B. That special circumstances were not created by the owner or applicant; and C. That the authorizing of the variance is necessary for the preservation and enjoyment of substantial property rights; and Oro Valley Zoning Code Revised 1 - 13 (Rev.8/'94) • ADMINISTRATION D. That any variance granted imposes such conditions as will assure that the authorizing of the adjustment shall not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zone in which such property is located; and E. That the authorizing of the variance will not be materially detrimental to persons residing in the vicinity, to adjacent property, to the neighborhood or the public welfare in general. Sec. 1-710 A= The Board shall prescribe, in connection with any variance, such conditions as theBoard may deem in order to fully carry out the provisions and intent of this Code. Such conditions may include, necessary among other things, a limitation of the time for which such variance shall be valid. Violation of any such condition shall be a violation of this ordinance and such violation shall render the variance null and void. Sec. 1-711 Review Any person aggrieved by a decision of the Board after hearing on application made by any taxpayer or municipal al officer, may petition for a writ of certiorari to review the Board's decision pursuant to ARS Section 9-465 (1956) as amended. Rev. (0)92-1,January 15, 1992 Oro Valley Zoning Code Revised 1 - 14 (Rev.W94)