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HomeMy WebLinkAbout1980-09-08 BOA MINUTESBOARD OF ADJUSTMENT CITY OF APACHE JUNCTION 1001 NORTH IDAHO ROAD APACHE JUNCTION,ARIZONA,85220 SEPTEMBER 8,1980 7:00 P.M. In Attendance Absent Joe Jessamine,Chairman Don Nesser,Vice Chairman Pete Nunn Bill Vaughn Chuck Newcomer,Acting Executive Secretary Kathy Connelly,Secretary 1.Mr.Jessamine (Chairman) 2.Mr.Newcomer. 3.Chairman 4.Nesser/Nunn 5.Chairman 6.Mr.Newcomer 7.Chairman 8.Mr.Eidson Bill Furness (illness) Guests Gertrude Thorsen Lulu Luebben Ilene Taylor Sharyn Oden Charles Anderson Zula Watson Jimmy Eidson opened the meeting at 7:00 P.M.and requested the Acting Executive Secretary call the roll. called the roll and determined four (4) members present as indicated above. declared a quorum,present and called attention to .the "Minutes"from:the meeting: of -August 4,1980, which the.members had before them. He stated that he would entertain a motion on ,the "Minutes". M/S to approve the "Minutes"from the August 4,1980,meeting of the Board of Adjustment as written. The motion passed 4-0. announced that theinext item on the agenda was the section set- aside for public hear- ings and declared the public hearing to be open. He asked the .Acting Executive Secretary to brief the Board members on case BA -12-80... explained that case BA -12-80 was the appli- cation for a variance to Article 11 of the City Zoning Ordinance as requested by Mr. Jimmy Eidson.This variance was in regard to the side yard setbacks as set forth in Article 11. He further explained that the applicant wished to enclose the carports on two prop- erties that he owned in the Apache Ho Sub- division,Unit 1.The properties in ques- tion,located at 944 W.Third Avenue and 907 W.Third Avenue,did not meet the min- imum side setback requirements of 8'.The side yard setbacks on these particular properties were 4'and 10'.He also infor- med the Board members that these setbacks applied to other lots throughout that area of the subdivision. called on Mr.Eidson to present his case. stated that he lived at 944 W.Third Avenue in Apache Junction. He explained that he wished to enclose the carports on the properties that he owned at Page 2 -Board of Adjustment Meeting of September 8,1980 9.Mr.Nesser 10.Chairman 11.Mr.Newcomer 12.Mr.Nesser 13.Chairman 14.Mr.Nunn . 944 W.Third Avenue and 907 W.Third Avenue. He pointed out to the Board that most of the homes- in the area had been improved to include the enclosure of carports.and the construction of patios.He also pointed out that some of these improvements had been done in the past year. At the property located at 944 W.Third Avenue,he wished to enclose the front and one side of the existing structure.Since the setback distance of the carport was 4' instead of the -13 1 as required by the City Zoning Ordinance,it was necessary to apply for a variance. He stated:that he was under the understanding that,if granted the variance,it mould then be applicable throughout the entire subdivi- sion and that future applicants .would not . have to go through the same procedure. explained that something of that nature would have to be dealt with in two seper- ate actions:one for the individual appli- cant and one for the entire subdivision. explained that the Board would have to carefully consider the ruling on the entire subdivision since a question had arisen on the adoption of variances for an entire subdivision. He asked Mr.Newcomer i f the question of the side yard setbacks was actually a variance. explained that a variance was necessary since the alterations as proposed by Mr. Eidson must comply with the Zoning Ordinance. asked why the County permitted other regu- lations i f the restrictions for the CR-3 zone called for 8'side yard setbacks. asked why the setbacks :varied among the different, houses throughout the subdivision. informed the Board that he lived in that particular neighborhood,but that the set- backs on his street were 20'. Since a general ruling would allow anyone to build within 4'of the line,he would have to recommend hearing each case on an individual basis since the circumstances were different throughout the subdivision. 15.Mr.Nesser asked if all of the houses in his area had the 20'setbacks. 16.Mr.Nunn 17.Mr.Eidson stated that all of the houses on his par- ticular street (Thunderbird Drive)had 20'side yard setbacks. interjected that the actual cost of the enclosure would be in the area of several hundred dollars but the procedure of having to apply for a variance added another headache. Page 3 -Board of Adjustment Meeting of September 8,1980 18.Mr.Nesser 19.Mr.Vaughn 20.Mr.Eidson 21.Mr.Vaughn 22.Mr.Jessamine 23.Mr.Newcomer recommended that the Board consider having the variance apply to those existing struc- tures only. agreed that the Board could not vote on the whole subdivision or even a whole street, and that he would be opposed to such an undertaking. pointed out that 3 or 4 carports had al- ready been enclosed out of 10 to 12 homes. stated that he could understand that people would object to some carports i f they blocked the view and forced the property owner to park in the street. felt that the Board should consider the applications on an individual basis. He further explained that a question of private deed restrictions had arisen as applied to the Apache Ho subdivision. He asked Mr.Newcomer to explain further. confirmed Mr.Jessamine's comment and explained that he had been contacted earlier that day by an individual that had infor- mation as to the private restrictions in that particular subdivision. 24.Mr.Eidson indicated that his deed did not indicate any private restrictions. 25.Mr.Jessamine explained that what would be involved would be a declaration of deed restrictions that would have been issued by the developer and signed by the property owners in order to protect the neighborhood. He further explained that these private agreements were often more restrictive than City regulations were. 26.Mr.Eidson asked if all subdivisions would have certain deed restrictions. 27.Mr.Jessamine 28.Mr.Vaughn 29.Mr.Newcomer 30.Mr.Vaughn explained that it was possible and that the zoning regulations stemmed from the City while the deed restrictions stemmed from the individual property owners. He further explained that people could fight the City with regard to the City Zoning Ordinance,but that it was neces- sary to go through the civil courts in order to enforce the private restrictions. asked i f the 'bard Or the Ci-ty could en- force the private deed restrictions, explained that the City could not enforce any private agreement. asked why the City should even consider the private restrictions i f they were not able to enforce them. Page 4 -Board of Adjustment Meeting of September 8,1980 31.Mr.Newcomer 32.Mr.Nunn 33.Mr.Eidson explained that the City Attorney had in- formed him that that question was under discussion by the City and the legal staff. He referred the members to Section 2403 (1)(3) of the City Zoning Ordinance and urged them to consider the wording in making a decision. asked Mr.Eidson i f he had ever, received a copy of the deed restrictions that per- tained to the Apache No subdivision. could not recall i f he had ever received such a document and had not been able to find it with his other papers that par- ticular day. 34.Mr.Jessamine called for questions or comments from the audience regarding the case. 35.Mrs.Oden 36.Mr.Eidson showed a copy of the deed restrictions to the Board and read aloud the portion of the document which indicated that "no building or enclosed porches thereof shall be erected, placed or permitted at any point on said property nearer than ten feet (10')to any side street line,nor nearer than seven feet (7')to the side line of any adjacent lot,provided that this side line restric- tion shall not prevent an open carport from being constructed to a point not nearer than three feet (3')to the side line of any adjacent lot". She relayed to the Board that these cove- nants were to be in effect until January 1,1999.She added that in the original section of the subdivision,all of the home owners had complied with the restric- tions. She added that as different contractors built homes in the different areas of the subdivision,they had allowed for more space and had created the difference in the set backs.She further informed that her own carport had been enclosed and was 10'3"from the side lot line. She informed the Board that she had done some research with regard to the covenants and had been told by the realtors and title companies that these restrictions should be honored within the subdivision. She explained to the Board that she was against the enclosure of the carport be- cause it would not maintain the standard and appearance of the neighborhood;that the closeness of the structures would create a serious fire hazard;and that i t would deter from the resale value of the homes on the street. asked Mrs.Oden i f she had had a building permit for the enclosure of her carport and why would she not go along with his request i f she already had the same thing. Page 5 -Board of Adjustment Meeting of September 8,1980 37.Mrs.Oden 38.Mr.VatIghn 39.Mr.Eidson 40.Mrs.Oden replied that her late father had done the work on the carport and that she assumed that everything was in order.She pointed out that her carport was within the re- strictions. pointed out that the Uniform Building Code which the City had adopted called for a 3'separation between structures. questioned why other homes in the neighbor- hood were permitted to enclose carports and construct porches that did not comply with the restrictions or the County codes. replied that people had registered com- plaints in the past with the County,but had been told that they needed an attorney to pursue the matter further. 41.Mr.Vaughn asked Mr.Eidson of the carport had a footing on the side. 42.Mr.Eidson 43.Mr.Jessamine 44.Mr.Anderson 45.Mr.Newcomer replied that i t did. called for additional questions or comments. asked why he had not received a notice of the variance application or of the public hearing even though he was within the 300' affected area. replied that the City had to use the Pinal County Assessor's lists as the official list of the affected property owners.If this list did not feature the new address or the new property owner,then the City had no way of making the necessary contact.He pointed out that several of the notices had been returned to the City as being undeliv- erable or with incorrect addresses. 46.Mrs.Watson stated that she was opposed to the granting of a variance to Mr.Eidson. 47.Mr.Jessamine 48.Mr.Newcomer 49.Mr.Eidson speaking as a realtor,explained that a copy of the deed restrictions should always be given to the property owner or purchaser. He also explained that he was aware of the contention that these restrictions have top priority in the subdivisions. He recommended that the case be continued in order to allow time to research the City's obligation to recognize these covenants. He pointed out that the home owner would see no point to the restrictions if they were not followed. stated that the next regular meeting of the Board would be October 6,1980,but that a special session was scheduled for September 22,1980. asked why the City should have a variance granting body at all i f they did not have the power to grant a variance. Page 6 -Board of Adjustment Meeting of September 8,1980 50.Mr.Jessamine 51.Mr.Eidson 52.Mr.Jessamine 53.Mr.Nesser 54.Mr.Vaughn 55.Mr.Jessamine 56.Mr.Newcomer 57.Mr.Nunn explained that the Board of Adjustment could grant the variance,but he was suggesting that they take the time to properly reasearch the facts.He again pointed out that all subdivisions have some kind of deed restrictions and that these must be complied with. stated that he thought the purpose of the variance request was to allow something that did not comply with the restrictions pointed out that he was only suggesting a two-week delay in making a decision. explained that he was familiar with deed restrictions since he lived in another subdivision that had the same kind of arrangement.He further explained that the covenants were required by Arizona State Law for all planned communities. He stated that the title companies always urged compliance with the covenants so as to protect their interests and to maintain real estate values. He had understood that the individual owner was always given these restrictions by the title company or the realtor.He urged the Board to postpone making a decision until the staff could check with Pinal County for proper building permits and so forth.He maintained that since the County did not have any subdivision restrictions, then the builder would have to get approval on a single basis. He questioned whether or not the County had approved all of the setbacks throughout this area.I f not,then according to the new City laws,then every -one is illegal. stated that the County had required the building permits and,therefore,the set- back requirements could be checked. informed the Board that i f the private deed restrictions were violated,that i t was the responsibility of the other home owners to pursue i t to civil court. He again suggested that the Board allow time to determine what is happening with regard to the private restrictions so as to eliminate any present or future friction. He then called for a recommendation. repeated the recommendation made by Mr. Jessamine -earlier to postpone the hearing and continue it at the meeting on October 6,1980 or September 22,1980,in order to allow the staff to do research with the County. recommended that the Board act on this case tonight but give direction to the staff to do research in the event of future cases of the same nature. Page 7 -Board of Adjustment Meeting of September 8,1980 58.Mr.Nunn 59.Mr.Nesser He stated that since the enclosure would comply with the City if Mr.Eidson was granted a variance,then the Board should grant the variance and let the people in the neighborhood that were objecting take their own course of action. explained that he had no objection to the enclosure of the carport,but did not want to give a blanket variance for the entire subdivision. asked Mr.Jessamine to withdraw his motion regarding the postponement of the hearing until a later date. 60.Mr.Jessamine withdrew his recommendation and motion to postpone the hearing. 61.Mr.Nesser agreed that the Board could not deny the application since the same thing had been approved for others in the same area. He suggested that the Board with hold the blanket approval until such time that the staff could complete their research. 62.Mr.Vaughn agreed that the Board could make a decision on one case but not on all in the area. 63.Mrs.Oden 64.Mr.Vau9hn 65.Mr.Jessamine 66.Mr.Nesser 67.Mr.Jessamine 68.Mr.Nunn 69.Mr.Newcomer 70.Mr.Vaughn 71.Mr.Newcomer stated that "most"of the houses in the area did not have enclosed carports.Only a few of the homes had made that kind of improve- ment.•She emphasized that the restrictions applied to all of the lots in the area. She reminded the Board members that Mr. Eidson had stated that he could not find the deed restrictions,not that he had never received them. stated that he would like to make a motion. closed the discussion from the floor. emphasized that,i f the variance was re- fused,then Mr.Eidson also had the right to take the Board members and City Council to court.Mr.Eidson was entitled to do as others in the neighborhood had done. recommended that the legalities be com- pletely investigated. pointed out that the application referred only to the house at 944 W.Third Avenue. explained that that was a misunderstanding and that he assumed that the same would hold true for the other property. asked i f it was possible to approve the suggested resolution as is. explained that,as per the City Attorney, i f there was a conflict between the City Ordinance and the private deed restric- tions,then the City Council and the Board could be taken to Civil Court and perhaps Superior Court. Page 8 -Board of Adjustment Meeting of September 8,1980 72.Mr.Vaughn 73.Mr.Newcomer 74.Mr.Vaughn 75.Mr.Newcomer 76.Mr.Nesser 77.Nesser/Jessamine 78.Mr.Vaughn 79.Mr.Nunn 80.Mr.Jessamine 81.Mr.Eidson 82.Mr.Nesser 83.Mr.Jessamine 84.Vaughn/Nunn asked Mr.Newcomer i f the suggested resolution would apply to all of the houses in the neighborhood. explained that a mistake had occurred when advising Mr.Eidson to fill out his application and that both of his properties should be included in the resolution,but the blanket application of the variance throughout the entire subdivision must be added by the Board members. verified that,therefore,the resolution as written would not apply to all of the houses in the neighborhood. confirmed Mr.Vaughn's statement. asked i f it was possible for the staff to contact Pinal County and do research to clear up the conflict in the setback requirements of the area and i f it was ever approved by the County. M/S "BE IT RESOLVED by the Board of Adjustment of the City of Apache Junction, Arizona,that the public hearing on case BA -12-80 be continued until the meeting of September 22,1980,to allow the staff to do research on the deed restrictions and conflict in setback requirements". The motion resulted in a tie vote 2-2. felt that Mr.Eidson had waited long enough to have a public hearing on his application. He explained that Mr.Eidson should have the same opportunity to enclose his carport as others have had. emphasized that the Board should act to- night on this variance application. pointed out that Mr.Eidson had no objection to waiting two weeks for the decision. agreed that he would not mind waiting the two weeks until the next meeting. pointed out that research should be done at the County offices and that the cove- nants were not attached to the deed,but a separate,private agreement. explained that he was not against granting the variance,but questioned whether or not it was proper to act at this time.He sug- gested that they accept the legal advice of the City Attorney and do research before acting on the application. M/S "BE IT RESOLVED by the Board of Adjustment of the City of Apache Junction, Arizona: Hereby granting a variance to the side yard setback requirements of Article 11 of the Page 9 -Board of Adjustment Meeting of September 8,1980 85.Jessamine/Vaughn 86.Mr.Jessamine 87.Mr.Nesser 88.Nesser/Nunn 89.Mr.Jessamine .90.Mr.Nesser City Zoning Ordinance as requested by Mr. Jimmy Eidson of 944 W.Third Avenue, Apache Junction,Arizona,in variance application BA -12-80.The Board grants Mr.Eidson a variance to enclose existing carports located at 944 W.3rd Avenue and 907 W.3rd Avenue,Apache Junction,Arizona, provided,however,that these structural alterations do not result in a side yard setback of less than four feet (4'). Further provided,that all requirements of the City Building Code are complied with. The Board of Adjustment,under the powers granted i t be Sections 2403 (g)and 2403 (d)of the City Zoning Ordinance,bases its decision on the following factors: 1)the location of the existing buildings (existing carports),makes strict com- pliance with the yard requirements im- possible without practical difficulties or hardships,and 2)adjacent to the subject properties are buildings which do not conform to the yard requirements of the zone. The motion passed 3-1 with Mr.Jessamine voting "no". M/S to have a five-minute recess before proceeding with the discussion. The motion passed 4-0. called the meeting to order at 8:22 P.M. suggested that a motion be made to direct the staff to do research on the Pinal County setback requirements with regard to the Apache Ho subdivision. M/S "BE IT RESOLVED by the Board of Adjustment of the City of Apache Junction, Arizona,that the Board direct the staff (Acting Executive Secretary)to do re- search on the existence of setback require- ments in the Apache Ho subdivision,to have available for future variance applications of the same nature information on the origi- nal requirements of the area,and to have the City Attorney provide an outline (in writing)giving direction to the Board with regard to private deed restirctions and covenants. Further,that this information be avail- able by the next meeting of September 22,1980." The motion passed 4-0. asked i f there was additional business for the Board to pursue at this time. mentioned that the rules and procedures of the Board would have to be anemded to allow for the additional two new members recently approved by the City Council. 91.Mr.Newcomer mentioned that a change in the rules and Page 10 -Board of Adjustment Meeting of September 8,1980 92.Mr.Vaughn 93.Mr.Nesser 94.Mr.Vaughn 95.Mr.Newcomer 96.Nesser/Vaughn 97.Mr.Newcomer 98.Nesser/Jessamine 99.Mr.Jessamine 100.Nesser/Nunn procedures of the Board would have to be legally advertised. stated that he thought the Board had allowed for the additional two members in the original draft of the rules and procedures.He had thought that,in the earlier work session,the Board had allowed for the new members pending the approval by the City Council. He mentioned that at the City Council meeting,the Vice -Mayor had reminded those Board members present that it would be necessary to change the number of members necessary to form a quorum. asked i f it was proper to announce that a review of the rules and procedures of the Board would take place since they were internal rules of the Board. suggested that the Board hold off on the discussion of the rules until the new members can attend and vote. asked that the Board make suggestions tonight but hold off on voting until such time that the new members are in attendance.He pointed out that they could make the new rules applicable from the time that the new members are actually taking part in the meetings. M/S "BE IT RESOLVED by the Board of Adjustment of the City of Apache Junction, Arizona,that the Rules and Procedures of the Board be changed to account for the increase from five to seven members,and that the minimum requirement for a quorum be set at four voting members." The motion passed 4-0. explained that a motion was necessary to call the special meeting for September 22, 1980. M/S "BE IT RESOLVED by the Board of Adjustment of the City of Apache Junction, Arizona,that a special meeting be held of the Board at 7:00 P.M.,September 22, 1980,at the City Hall Complex,1001 North Idaho Road,Apache Junction,Arizona." The motion passed 4-0. asked i f there was any additional business before the Board at this time. M/S to adjourn the meeting of the Board of Adjustment. The motion passed 4-0. 101.Mr.Jessamine adjourned the meeting at 8:35 P.M. Page 11 -Board of Adjustment Meeting of September 8,1980 Respectfully submitted, (1?j /ixi Charles Newcomer' Acting Executive Secretary Approved: i d _/RV -..fr''.....v..4":14•7/7.4/7.-21--14 F / of amine,Chairman of Adjustment by Don Nesser,Vice-Chairman Board of Adjustment