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HomeMy WebLinkAbout1979-11-05 BOA MINUTES • MINUTES BOARD OF ADJUSTMENT CITY OF APACHE JUNCTION CITY HALL NOVEMBER 5, 1979 6:00 p.m. In Attendance Regrets Joe Jessamine, Chairman Bill Furness Don Nesser Pete Nunn Bill Vaughn Joe Gero, Executive Secretary Guests Ron Petica, Attorney P.L. Nichols 1. Mr. Jessamine (Chairman) opened the meeting at 6:00 p.m. and requested the roll-call of members. 2. Mr. Gero (Exec. Sec.) called the roll and determined four members present as listed above. 3. Chairman declared a quorum present. He called for a motion on "Minutes" dated October 1, 1979. 4. Nesser/Vaughn M/S to approve "Minutes" dated October 1, 1979. The motion passed unanimously by roll-call vote. 5. Chairman stated that this is the time and place for public hearings advertised for this date. He announced that this is the public hearing far BA-2-79, application of Mr. Nelson Williams to continue a pre-existing non- conforming use. The case was advertised on September 14, 1979 and the public hearing was continued from October 1, 1979. He then called upon the Executive Secretary to brief the Commission and public present on the case. 6. Mr. Gero oriented the case on a map sketch for all present. The request was initiated in that pre-existing non-conforming uses must Amok register with the City as per Section 2306 of the Zoning Ordinance. Mr. Williams is and has been operating an automobile wrecking yard on his property prior to the adoption by the City of Apache Junction of a Zoning Ordinance. Page 2 We are not sure of the status of Mr. Williams with reference to Pinal County Zoning. However, his attempts to gain approval were obvious and no actions were taken to the contrary for the use. Whether the case was pre-existing to county zoning is undetermined but appears approved by silent ratification by the county, if ratification was in fact needed. The question before the Board by Section 2306 are: 1. Is this in fact a pre-existing non-conforming use? 2. What reasonable conditions can be imposed upon the continuation of the use to lessen the impact of the use upon the affected area? 7. Mr. Ron Petica, Attorney announced to the Board that he is here (representing Mr. representing Mr. Williams (applicant) . Williams) He stated: "I'd like to present to the Board first an insurance bond showing an effective date of January 18, 1979, a transaction priviledge tax license from the Department of Revenue effective June 1, 1979, and finally a Department of Motor Vehicle License dated August 30, 1979. The purpose of that is simply to acquaint the Board with the fact that Mr. Williams has been doing business at the subject location at least since January 18, 1979. So my first request to the Board would simply be, if the Board declines to act in this matter, on the basis of this being a non-conforming use." "My second request would be to ask the Board to direct that a license be issued without further adjudication because of the existance of a non-conforming use. In the event the Board declines my first two requests, may I make this statement. I have been on the other side of the table as an attorney for the Town of Paradise Valley, so I know what you gentlemen are facing. I understand and firmly believe that the last thing anybody should do is threaten, directly or indirectly, the Board of litigation. You will find that both Mr. Nelson and myself are extremely reasonable and very very anxious .. to work with the Board concerning this matter and I think that compromise without waiving Note• areas indicated by any of Mr. Nelson's position should the • indicate voice not Board reject my two previous positions. I audible on official tape. would like to discuss a compromise in this matter, should the Board wish to issue a special use permit non-conforming use. Page 3 Along those lines, in regards the spirit of compromise Mr. Williams would be willing to discuss the installation of a fence although he has not secured a building dirc permit for it, he will do so immediately, and I am sure he will be willing to discuss compliance with other reasonable regulations that the Board may impose that are similarly imposed on other wrecking yards in the City. What my fear is quite honestly, what I am leading up to is this; that I have heard thru your City Attorney that it is possible the Board may be considering some form of a condition that would preclude or which would terminate the special use permit upon Mr. Williams selling the property to a third person. I don't know if that's in the Board's mind or in discussion. I did some very brief reserch on the subject and I readily admit that your own City Attorney should tell you this and I am not anxious to meet with her to show her my case files but I can state with a great deal of candor and honesty that the case law is legend, it is uniform it is without exception that the Board of Adjustment cannot impose that kind of condition on a special use permit. There are hundreds of case that stand for the i proposition that a condition on the issuance of a special use permit revoking the jurisdiction of a Board of Adjustment or any City Commission. If you wish to impose such a condition, then I respectfully request that you do so subject to review of your City Attorney, so I can talk with her, show her my position, if she disagrees with me fine, I'll understand that she's your City Attorney and this is what the City is paying her for, but I respectfully request the opportunity to discuss it with her and show her the legal authority prior to you imposing it. You could make it conditional upon her review and acceptance, if she says fine, its in there and you've done it, then there's no further need to consider and close the case, if she says well, you don't have the power to do it, she can automatically kick it out that's the real purpose why I am here Mr. Williams certainly will discuss compliance without wavering his position. I am here to answer any questions you have 8. Mr. Gero presented his recommendations. It appears the use is pre-existing non-conforming. Page 4 Mr. Williams is placing a fence around the outer perimeter of the property from 6 feet to 8 feet high. The Board should regulate signs and state the use cannot be expanded. 9. Nesser/Nunn M/S "Be it resolved that the Board of Adjustment of the City of Apache Junction does approve and hereby grant that Mr. Nelson Williams may continue the pre- existing non-conforming use of a junk/ wrecking yard located at 1861 East 12th Avenue in Apache Junction, Arizona and hereby registers same as required by Section 2306 of the Zoning Ordinance of said city. The Board hereby stipulates that approval is contingent upon the property owner having in place within 30 days from the date of this approval an opaque fence in height between six and eight feet from general ground grade viewed from outside the property; further, provided, the property owner shall be required to maintain said fence in good repair during the continuation of the said non-conforming use. The Board further stipulates that the non- conforming use shall not be expanded beyond the limits and scope as established and existing on November 5, 1979. The Board further stipulates that an on-site sign up to two square feet identifying the use of the property, placed no higher than eight feet above average ground level may be approved. The motion passed unanimously by roll-call vote. 10. Chairman asked the Board what they wished to do about the letter from Mr. and Mrs. P.L. Nichols with regards to Section 2309 of the Zoning Ordinances as applied to the Los Rocas Subdivision. 11. Vaughn/Nunn M/S to set the public hearing for the Nichols request for November 19, 1979, at 6:00 p.m. at the City Hall, and wai'tting-the' fees The motion passed unanimously by roll-call vote. Page 5 12. Nesser/Vaughn, M/S to adjourn at 7: 15 p.m. The motion passed unanimously by roll-call vote. Respectfully Submitted, JiA-eft-LUIS4-,) Joseph W. Gero Executive Secretary Approved: 4.13 Jose Jessamine, Chairman