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HomeMy WebLinkAbout1980-05-19 BOA MINUTES MINUTES BOARD OF ADJUSTMENT l CITY OF APACHE JUNCTION, ARIZONA PINAL COUNTY HEALTH DEPARTMENT 150 N. OCOTILLO DRIVE APACHE JUNCTION, ARIZONA MAY 19, 1980 7:00 P.M. In Attendance Guests Jessam ine,J ine Chairman Maxine Lowe Tom Damiano Don V. Nesser, Vice Chairman Archie Lowe A.E. Sullivan Bill Furness Robert H. Schlosser William Nunn Susan Goodwin William Vaughn Leo Frazier Joseph Gero, Executive Secretary Richard Broman Charles Newcomer, Acting Executive Secretary John Hutchins Kathy Connelly, Secretary Richard Oltman Samuel Canter Janet Campbell Henry Hagemeyer Virginia Seeman 1. Mr. Jessamine called the meeting to order at 7.05 P.M. rim4 and requested that roll-call be taken. 2. Mr. Gero called the roll and determined all mem- bers present as noted above. He intro- duced the new members of the staff and the City Attorney, Susan Goodwin, to the Board and acknowledged the presence of the Director of Public Works (Richard Broman) and the Zoning Administrator (Leo Frazier) in the audience. 3. Mr. Gero called the attention of the Board to the minutes of the meeting of May 5, 1980 and requested that they review same. 4. Mr. Jessamine asked for a motion to approve the min- utes of the meeting of May 5, 1980 as written. 5. Nesser/Vaughn M/S "Be it resolved that the minutes of the meeting of May 5, 1980, be approved as written". 6 Mr. Jessamine called for a roll-call vote. The motion passed 4-0-1 with William Nunn abstaining since he did not attend the meeting in question Page 2 - Board of Adjustment Minutes of May 19, 1980 7. Mr. Jessamine announced that the section of the meeting set aside for public hearings was now open and announced that the first case before the Board was BA-8-80, the appeal of Mr. Archie Lowe of the decision of the City Building Official 8. Mr. Jessamine explained that this was the first such case appealed to the Board and called the attention of the Board members to the rules of procedure before them. He requested that a copy of these rules be given to Mr. Schlosser, the attorney for the Lowe family, for his information 9. Mr. Nunn asked permission from the Chairman to step down and not participate in the proceedings at this point since his wife was an involved party and he had previous knowledge of the case. 10. Mr. Jessamine gave Mr. Nunn permission to step down ... during the hearing of BA-8-80 and re- quested that the Executive Secretary continue with the public hearing. 11. Mr. Gero announced that he was also an involved party in the decision and, as a result, would be taking part only as an advisor to the Acting Executive Secretary and would not be offering the Executive Secretary recommendations. 12. Mr. Jessamine acknowledged the request of the Planning Director and directed Mr. Newcomer to proceed with the public hearing. 13. Mr. Newcomer introduced the case to the Board members and located the property on a map for the benefit of the Board and the audience. He explained that Mr. Lowe was appealing the decision of the Building Official to revoke the building permits given to him previously, namely ##213, 214 and 215. The main reason being that the properties did AMft not abut a public roadway as indicated in the applications submitted by Mr. Lowe. He asked the City Attorney if she had any additional couuuents. Page 3 - Board of Adjustment Minutes of May 19, 1980 Inft 14. Ms. Goodwin had nothing to add to Mr. Newcomer's presentation of the case. 15. Mr. Jessamine called on the applicant or his attorney to present testimony for his case. 16. Mr. Lowe introduced himself to the Board and provided some background information as to his interest in Apache Junction. He then presented his case to the Board. He explained to the Board that the three (3) acre parcel in question has four (4) individual owners. The work in question on the property had been done by three (3) separate contractors, and he had believed that they had secured the proper permits. Due to complaints, the Pinal County Zoning Commission was called in and contact made with the State Real Estate Board to find out whether or not the property did indeed ..• have individual owners The Real Estate Board did concur that gift deeding was legal and allowable in Arizona, providing that all conditions are complied with. He stressed to the Board that he had not violated the sub-division ordinance since the land in question was four (4) seperate parcels. After the initial court appearance at which time he paid a fine for not having the proper building permits, he applied for additional permits so that improvements could be made on the properties in ques- tion. These same permits were #213, 214 and 215, which were later revoked as per the Building Official's decision. Mr. Lowe than called upon his attorney to complete the presentation of the case. 17. Mr. Schlosser introduced himself to the Board and ex- plained that he had represented Mr. Lowe .ma in the civil action which had previously occurred. He presented to the Board the fact that improvements in excess of $1,400.00 had been made on the property in question prior to the revokation of the permits. He felt that the City's revokation of the permits was a serious step since it did Page 4 - Board of Adjustment Minutes of May 19, 1980 not provide adequate protection to the individual dealing with the City. He cited the ordinance in question calling for access to a public roadway and indica- ted that Mr. Lowe had submitted a new sketch which would create access to a public roadway by changing the easement. He informed the Board that, if a favor- able decision was not reached, the matter would be taken to the Superior Court and challenged on the constitutionality of the zoning ordinance itself. 18. Mr. Gero reminded Mr. Schlosser and the Board that the decision was to be made on the action taken by the Zoning Administrator. 19. Mr. Schlosser acknowledged the procedures for appeal of such a case and informed the members of the Board that it was necessary for the question to be heard before the first tri- bunal before going to a higher authority. 20. Mr. Jessamine asked Susan Goodwin if she had any ques- tions of either Mr. Lowe or his attorney 21. Ms. Goodwin asked Mr. Lowe if the transactions that had taken place were bonafide "gifts". If so, who pays the taxes and who gets the money received from rent? 22. Mr. Lowe answered by saying that the transactions had been gifts. The taxes were not paid by the individual owners and the rental money went to the children. He further informed the Board that his attorney was making the appeal for everyone involved, to include his wife and children. 23. Ms. Goodwin asked Mr. Lowe who paid the bills for the services rendered by the various con- tractors and who had applied for the permits originally. 24. Mr. Lowe replied by stating that the repairs and/or improvements had been paid for by himself as "gifts" to the children, the permit applications had originally been submitted by himself with the signatures of the in- dividual owners on each application. Page 5 - Board of Adjustment Minutes of May 19, 1980 25. Mr. Lowe inquired of the Board if a new diagram illustrating a new easement was presented to the proper authority, would it be pos- sible to reapply for permits. 26 Mr. Schlosser informed the Board that his client was willing to prepare a new easement map according to the City Codes 27. Mr. Jessamine asked if Mr. Lowe had applied for a subdivision declaration. 28. Mr. Schlosser informed the Board that gift deeds were not under the subdivision regulations according to the State Real Estate Board and the Pinal County Planning Department. 29. Mr. Broman illustrated the property and easement in question on the map, pointing out that the access in question was found to be along Broadway Road and not along the property line. He presented the Board with a copy of the chronological order of transactions that had taken place with regard to these parcels. He informed the Board that the revised easement (Southern line of the North two parcels) had not appeared on the original application. 30. Mr. Newcomer called on Mr. Gero to give his testimony. 31. Mr. Gero informed the Board that, at the time of the issuance of the permits in question, he was the Acting Zoning Administrator for the City He referred the Board to various usage and definitions on Trailer Homesite (uses permitted stated in Article 20, Section 2001 of Ordinance) ; Trailer Park and Trailer Court (Section 471) , and Street (Section 464); as appear in the Zoning Ordinance He presented his in- volvement in the case in chronological order. He informed the Board that the requests for four (4) separate Building Permits must be signed by the individuals for the individual parcels. /m4 The information originally sent to the City by Mr. Lowe showed Warner Drive directly abutting each lot, with each parcel having frontage on a public right-of-way The in- dividual permits were attached to these diagrams. Therefore, the permits were issued for the individual lots Page 6 - Board of Adjustment Minutes of May 19, 1980 32. Mr. Jessamine called for Mr. Frazier to present his testimony. 33. Mr. Frazier explained to the Board that he took over the case during the latter part of February when he became the Zoning Ad- ministrator During his investigation of the case, he reached the conclusion that the permits had not been issued according to the definition of a "lot". 34. Mr. Gero informed the Board that it should be a part of the record that the Building Permits were issued after the units were on site. 35. Mr. Gero asked Mr. Frazier if there was a distinc- tion between a permit issued in error on the part of the City and one issued in error on the part of the applicant. 36. Mr. Frazier replied by informing the Board that if an error in issuing the permit resulted from being based on the information sup- plied to the Building Administrator by the applicant, then the responsibility for the error falls upon the applicant. 37. Mr. Nesser asked Mr. Lowe if each lot was deeded individually, if each owner can do as they please with the lots and if each lot had its own septic facilities. 38. Mr. Lowe replied "yes" to each question. 39. Mr. Nesser asked Mr Lowe if there was legal access to the streets other than from the first lot. 40. Mr. Schlosser replied for Mr. Lowe by stating that from a surveyor's standpoint there was not access to the street from all lots, but there was, in his opinion, from a legal standpoint. 41. Mr. Lowe added that he had the intention of giving an easement of an additional 20' . 42. Mr. Gero asked Mr. Lowe if he had any objection to going through the subdivision procedure as called for in the Apache Junction Zoning Ordinance. Page 7 - Board of Adjustment Minutes of May 19, 1980 43. Mr. Lowe replied that it would not be economi- cally feasible to do so and it would be a foolish move on his part. 44. Mr. Gero asked Mr. Lowe if he had not deliberately created a subdivision by deeding the lots to individuals as gifts 45. Mr. Lowe replied that that had not been his inten- tion and that he resented the implication. 46. Mr. Nesser asked Mr. Gero if the existing easement can be considered a private drive. 47. Mr. Gero under the current regulations, the ease- ment does constitute a private drive. 48. Mr. Schlosser commented that a declared public ease- ment gives some right to use the roadway to everyone. 49. Mr. Jessamine in order to clarify a point, asked Mr Lowe if the properties had been "gift ^a deeded" and if the childred had the right to sell the property. 50. Mr. Lowe replied "yes" to both questions 51. Mr Jessamine informed the Board that a subdivision report must be requested in order to divide into four (4) lots. He asked Mr. Lowe how the Board could be assured that the lots won't be deeded back and the easement wintdrawn. 52. Mr. Lowe informed the Board that he would be wil- ling to set forth stipulations that that would not happen. 53. Mr. Gero reminded the Board that the lots in ques- tion were #2, 3 and 4 (the three away from Warner Drive) . 54. Mr. Vaughn asked if Mr. Lowe would be willing to accept the lots back if the children decided to do so. 004 55. Mr. Lowe Yes. 56. Mr. Furness asked Mr. Lowe if the lots in question were rentals. 57. Mr. Lowe the pads are rentals. Page 8 - Board of Adjustment Minutes of May 19, 1980 58. Mr. Furness asked Mr. Lowe if the situation posed a potential fire problem. 59. Mr. Lowe informed the Board that the property had ready access by the fire department. 60. Mr. Gero asked if, in the event, one of the prop- erty owners decided to sell or to build a home, would they be able to get the appropriate loan since the street would be an unmaintained roadway. 61. Mr. Jessamine speaking as a realtor, was aware of the fact that banks would not consider such a loan without a large down payment. 62. Mr. Schlosser referred to the package submitted by his client in settling the civil action in which multiple copies of the lots were submitted to Susan Goodwin. 63. Mr. Lowe added to the rebuttal by stating that he recalled submitting the site plans with the four lots in the original package to- gether with the individual plans. He informed the Board that Warner Drive had been left on the plans inadvertently to give direction. 64. Mr. Jessamine called for rebuttal from the staff. 65. Ms. Goodwin presented the rebuttal for the staff by reminding the Board that the issue be- fore them was not that of a private ease- ment. She reviewed the case and called attention to the fact that the Zoning Ordinance requires the lot to abut upon a public street and that there was pres- ently no evidence that even a private roadway would be provided. She reminded the Board that Mr. Lowe's applications were granted upon the basis on infor- mation that he supplied to the City and that, at the time of revokation, the lots did not abut upon a private easement or a public street. She further stated that 004 there was no evidence of other property owners to order to qualify for a bonafide "gift deed". Page 9 - Board of Adjustment Minutes of May 19, 1980 01114 66. Mr. Newcomer presented the staff recommendations to the Board for their consideration. The staff recommended to uphold the decision of the Building Official to revoke Buil- ding Permits #213, 214 and 215 based on the evidence presented. 67. Ms. Goodwin informed the Board that the Staff has pre- sented findings of fact for their consid- eration if they chose to uphold the motion. 68. Mr. Jessamine called for a five minute break at 9.05 P.M. so that the staff would have time to review the evidence before them. 69. Mr. Jessamine called the meeting to order to 9:12 P.M. and reads the recommendation and motion before the Board. "Be it resolved by the Board of Adjust- ment of the City of Apache Junction, /, Arizona, that the decision of the Zoning Administrator revoking Building Permits #213, 214 and 215, be and is hereby_ affirmed and ratified based on the fol- lowing reasons: 1. Building Permits #213, 214 and 215 were issued based on the written appli- cation of Application submitted by Maxine Lowe, Sherry Lowe and Archie Lowe, pursuant to Article 27 of the City of Apache Junction Zoning Ordinance. 2. Building Permits #213, 214 and 215 were issued in error for the reason that the alleged lots for which they were issued do not abut a public street. 3. The alleged lots for which Building Permits #213, 214 and 215 were issued do not abut upon a public easement. 4. The act of the Zoning Administrator in revoking the Building Permits was in accordance with the City of Apache Junction Zoning Ordinance and was not arbitrary or capricious. 5 There is not sufficient evidence to reinstate Building Permits #213, 214 and 215". called for a roll-call vote on the motion and requested Mr. Newcomer to proceed with the roll. Page 10 - Board of Adjustment Minutes of May 19, 1980 a 70. Mr. Newcomer called the roll for a vote on the motion the motion passed 4-0 . 71. Mr. Jessamine dismissed the case of Archie Lowe (BA-8-80) and called for the next item on the agenda, case BA-9-80. Mr. Nunn resumed his place on the Board. 72. Mr. A.E. Sullivan acting on behalf of the applicant, Mr. and Mrs. Hurst, with the Power of Attor- ney to do so, explained the case to the Board members. 73. Mr. Sullivan informed the Board that his client was applying to put a trailer on a piece of property that was not zoned for it. Based on financial situations and the size of the lot in question, his client would like to put a 14'x60' mobile home on the lot, which would conform with the legal setbacks. He informed the Board that the lot was 6,000 square feet, with the minimum re- quirements for a house being 7,000 sq. ft. He requested that the Board carefully con- sider the case since it did not appear • reasonable to place zoning restrictions in an area where it was impossible to comply with same. He guarenteed that all of the requirements would be met. 74. Mr. Nesser asked Mr. Sullivan that if the owner was permitted to put a trailer on the site, he would be willing to conform with the additional requirements, including setbacks. 75. Mr. Sullivan assured the Board that all requirements as set forth would be complied with. 76. Mr. Jessamine called for questions or comments from the floor with regard to being for/against the request of Mr. and Mrs. Hurst. 77. Mr. Newcomer entered into the record a letter from members of the neighborhood objecting to the proposal of a trailer home. 78. Mr. Jessamine called for a spokesman from the group 1 1 to come forward and speak. no additional comments were made. 79. Mr. Jessamine asked Mr. Gero what could be done with the lots in question if it was proven that Page 11 - Board of Adjustment Minutes of May 19, 1980 a these lots were too small for homes. 80. Mr. Gero referred the Board to the original Zoning Ordinance and informed them that they should weigh the strict application of the Zoning Ordinance in deference to the possibility of enforcing it. 81. Mr. Jessamine asks the staff for their recommendations 82. Mr. Newcomer presented the staff recommendations to the Board which include the following. 1) . The granting of a variance for the minumum lot size requirement of 7,000 square feet for Lot 39 of the Hughes Place Subdivision. 2) . The granting of a variance to Section 1101 of the City Zoning Ordinance so that Mr. and Mrs. Hurst could place a mobile home upon said property ,IMM• 3) . That all setback requirements be met as set forth in Article 11 of the City Zoning Ordinance. 4) . The storage shed located on the property be brought up to Uniform Building Code standards, be removed from the property and that it either be attached to the mobile home dwelling unit or conform with Section 1111 of the Zoning Ordinance. 5 That the barbed wire fence located on th e property be removed since it poses a safety problem to the public. 83. Mr. Jessamine suggested to the Board that the motion be read as indicated with the addition of the same applying to other vacant lots in the Hughes Place Subdivision on Ocotillo Drive. 84. Mr. Jessamine read the motion to the Board as follows' "Be it resolved by the Board of Adjustment of the City of Apache Junction, Arizona, that the application of Mr. and Mrs. Gene Hurst, Route 1, Volga, South Dakota, Omit i 1 (BA-9-80) , requesting approval to place a mobile home on their Lot #39, Hughes Place Subdivision (2403 (g)) ; and re- questing approval of a variance to allow a reduction in lot size from 7,000 square feet to 6,000 square feet, and that all vacant lots in the Hughes Place Subdivision Page 12 - Board of Adjustment Minutes of May 19, 1980 that front the East and West sides of Ocotillo Drive be included in this resol- ution provided that the yard require- ments of the CR-3 Zone be complied with. Be and hereby is approved. Further, the Board requires that as a condition precedent to this approval, that the accessory building be upgraded to standards as set forth in the Uniform Building Code and be either attached to the main building or be seperated from the main building by a minimum distance of 7' , or that the accessory building be removed Further, the Board takes note of the existence of barbed wire on the front and rear of the property and informs the property owners that said barbed wire is generally considered to be a hazard to the public's health, safety and general welfare, and request its immediate re- moval. Further, the Board approves the plot plan for the location of one (1) mobile home on said Lot #39, except that if the acces- sory building is located other than as an attached unit, that the Board requires the accessory building to be located in confor- mance with the zoning regulations as set forth in a CR-3 zoning district in the City of Apache Junction Zoning Ordinance, or the applicant shall return to the Board to request the granting of said variance. All of the above shall be and hereby are approved by the Board of Adjustment of the City of Apache Junction, Arizona, provided that the applicant shall apply for and receive approval for their building permit as set forth in the Apache Junction Zoning Ordinance, as set forth in Section 2501 (b)". 85 Mr. Jessamine asked Mr. Newcomer to call the roll for a roll-call vote. /, 86. Mr. Newcomer call the roll for a vote on the motion. the motion passed 5-0. 87. Mr. Jessamine asked if there was any new business before the Board. Page 13 - Board of Adjustment Minutes of May 19, 1980 1 88. Mr. Jessamine there being no new business, asked for a motion to adjourn the meeting. 89. Nesser/Furness M/S to adjourn the meeting of the Board of Adjustment at 10:05 P.M. the motion passed 5-0. Respectfully submitted, ( 4 ai-l/:!7-,`Vi'e harles N wcomer Acting Executive Secretary Approved. oe s mine C ai an o d of Adjustment