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HomeMy WebLinkAbout1980-10-06 BOA MINUTESMINUTES BOARD OF ADJUSTMENT CITY OF APACHE JUNCTION,ARIZONA 1001 N.IDAHO ROAD APACHE JUNCTION,ARIZONA OCTOBER 6,1980 7:00 P.M. In Attendance Joe Jessamine,Chairman Don Nesser,Vice Chairman William Nunn Chuck Newcomer,Acting Executive Secretary 1.Mr.Jessamine 2.Mr.Newcomer 3.Mr.Jessamine 4.'Mr's.Oden 5.Mr.Jessamine 6.Mrs.Oden 7.Mr.Jessamine 8.Mr.Newcomer Regrets Guests Bill Furness,absent Mrs.Oden William Vaughn,excused opened the meeting at 7:00 p.m. and requested the Executive Secretary to call the roll. called the roll and determined the members present as indicated above. called upon Mrs.Oden and asked i f she had a specific purpose for being at the meeting. replied;"Yes,I came to hear what information was that Mr. Newcomer had found out." asked Mrs.Oden i f she minded i f he read i t to her. replied:"That will be fine". asked Mr.Newcomer to read the information. explained that the question he had requested the City Attorney to respond to was:"where private deed restrictions are in existence and govern property uses in a sub- division,and where an application for a variance has been submitted to the Board of Adjustments by a property owner whose property is governed by those deed restrictions, would the variance applied for,i f granted,be in conflict with the deed restrictions.Therefore,may the Board of Adjustment approve the appli- cation for such a •variance"? The answer from City Attorney (corres- pondence dated Setpember 29,1980) was:"Yes,the reasoning behind this was private deed restrictions are private contracts between property owners within the area affected by the deed restrictions. Page 2 -Board of Adjustment Minutes of October 6,1980 The private contracts affect the use of private property much in the same way a zoning ordinance affects the use of private property,except that a zoning ordinance is a regulation of the use of private property through ordinances passed by a governing body enacted under the police power of the City.Zoning regulations are separate and independent of deed restrictions.However,although in principle,deed restrictions and zoning ordinances are separate and independent regulations of private property,they often come in conflict.Similarily,the Board of Adjustment will often be asked to approve a variance from the zoning ordinance which approval would be in their power to grant, the only question being the existence of a deed restriction in conflict with that variance. The general rule is that any consideration of building restrictions placed upon property by private contracts has no place in proceedings:under zoning laws for a building permit or variance.Case sited: Michener,State of Penn.,1955. The reason for this rule is that the Board of Adjustment is an administrative Board. Although i t has been granted certain quasi- judicial functions,i t is not a court and cannot construe or strike down plat or other deed restrictions.Case sited: Oklahoma City v.Harris State of Oklahoma, 1941. In other words,even though the Board of Adjustment knows of the deed restrictions in effect,its decision of whether or not to approve a variance application should be based on considerations separate and independent of the existence of the deed restrictions.The property owners affected by the granting of the variance to another property owner whose property is governed by private deed restrictions may seek their remedy in a court of law.They would enforce any private contract allegedly breached.There is a possibility that the Board of Adjustment will also be joined in that law suit,but the only remedy avail- able to the property owners would be to request a Writ .of Mandamus,which is an order from the court ordering the Board to do something.Damages will not lie against the Board of Adjustment for the granting of the variance in conflict with deed restrictions." Page 3 -Board of Adjustment Minutes of October 6,1980 9.Mr.Jessamine 10.Mrs.Oden 11.Mr.Jessamine 12.Mrs.Oden 13.Mr.Newcomer stated that he would like to elaborate a little on this. asked him i f he could speak a little louder. said that during the last session that was held,he was not satis- fied until he got the Attorney's opinion,in writing,as to what the decision would be between the City authorizing a variance to the private deed restrictions.He added that he wasn't satisfied until he got some kind of an answer.He explained i t all boiled down to just one simple thing: the City has their own ordinances to contend with,and that private deed restrictions are nothing but something put on a subdivision by a subdivider.That means that i f someone requests.a.vatiance within a City,the City can override the restrictions.I f there was any conflict that arose, the property owners would have to go to Judicial court to fight. This means that we really could be involved as a Board of Adjust- ment member.He asked Mrs.Oden to understand that we are governed by certain rules according to the City Ordinance and that he wasn't satisfied until he got this information.Up until that point, he added that he was very un- happy about what was going on. He noted where they quoted a few cases.He told Mrs.Oden that i f she had any questions right now they would be glad,for a short period,to answer anything she might have. stated that she thought it was self-explanatory.She asked Mr.Newcomer i f she could have a copy of that. She also requested a copy of the minutes of the last meeting,the meeting of Sept.8,1980. asked the Chairman i f he could wait on giving Mrs.Oden a copy of the legal opinion:he explained that it's been read into the minutes and that he was not sure i f it would be proper to give out the actual legal opinion itself; once it's entered into the minutes then i t could be transcribed back out. Page 4 -Board of Adjustment Minutes of October 6,1980 He added that it would be entered into the Minutes just as it was read. 14.Mr.Newcomer asked Mrs.Oden i f that would be satisfactory to her. 15.Mrs.Oden replied:"As long as I have what the opinion is". She asked for the City Attorney's name. 16.Mr.Newcomer stated that the City was represented by Martinez,Curtis,Goodwin,Karasek. 17.Mr.Jessamine asked Mr.Newcomer i f he was going to mail Mrs.Oden a copy or i f he wished for her to pick i t up. 18.Mr.Newcomer replied:"Either way she would like to do it". 19.Mr.Jessamine 20.Mrs.Oden 21.Mr.Newcomer 22.Mrs.Oden 23.Mr.Newcomer 24.Mr.Jessamine 25.Mr.Newcomer 26.Mr.Nesser thanked Mrs.Oden for coming. asked Mr.Newcomer i f he ever found the report that the Building Inspector handed in. replied:"Yes Ma'am I did". stated there was a question as far as how the motion read.She questioned whether or not the Board had,in fact,been to the property because the adjacent property did not have an enclosed carport. replied:"Yes,ma'am.That's in the file in the office if you would like to look at it." He explained that it was in his recommendation that he gave to the Board before each case,and that i t was in the file. stated that the Minutes of Sept. 8,1980,pertained to this situation. He added that he read them thoroughly. He was sure the others did also. He asked i f they had an amendment to the Minutes. replied:"Yes,we do". asked that if a motion was in order. At the last meeting,the acceptance of the Minutes was held up for some question. He noticed that the only amendment was in the change of the date from 1991 to 1999.He added that he would make the motion that we accept the Minutes of Sept.8,1980 meeting to include the amendment and the change of date and approve them as written. Page 5 -Board of Adjustment Minutes of October 6,1980 27.Nesser/Jessamine 28.Nesser/Nunn 29.Mr.Newcomer 30.Mr.Nesser 31.Vaughn/Nesser 32.Nunn/Jessamine 33.Chairman Resmptfully submitted, rles NAdomer Acting Executive Secretary to the Board of Adjustment Approved: A A ,oparo or majustment M/S to accept the Minutes of the meeLing of Sept.8,1980 as amended. The motion passed 3-0. M/S to accept Minutes of Sept.22, 1980 meeting as written. The motion passed 3-0. stated that there was one item that he wanted to discuss tonite.He explained that the Board originally had scheduled the continuation of variance application BA -10-80 submitted by Mrs.Frances Ramirez.He had a conversation with her lawyer Mr.Salazar, last week and was advised that they never got their property ownership problems resolved in court.He explained that they wished to withdraw the application. suggested that it might make i t a little more legal if we officially eliminated the case from our agenda. M/S to accept the withdrawal of case BA -10-80 variance:appiicatim.of Frances Ramirez. M/S to adjourn the meeting. The motion passed 3-0. Adjourned the meeting at 7:40 p.m.