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HomeMy WebLinkAbout1983-05-09 BOA MINUTESPresent Mr,Burfiend Mr.Berry Mr,Morrison Mr.Browne Mrs.Luddy Mr.Vaughn,Chairman Mr.Gero,Executive Secretary Mr.Alexander,City Attorney Mr.Nakagawa,Staff Mr.Frazier,Staff Mr.Keller,Staff Ms.Whitten,Staff Mrs.Samuelson,Recording Secretary BOARD OF ADJUSTMENT CITY COUNCIL .CHAMBERS 1001 NORTH IDAHO ROAD APACHE JUNCTION,ARIZONA May 9,1983 7:00 P.M. MINUTES Absent Mrs.Dunlop Guests Lee Reeder Doyle Reeder Mikki Frazier Thomas Damiano Ilene Taylor Joe Morvak Mayor Wendell Clarke Jimmy Eidson Richard Zielinski Michael Ondrish Jim Thompson Wendy Derzawiec,Press Teresa Hudson,Court Reporter Roy Hudson Dick Rabidue Mark Hurley Harold Taylor Margaret Taylor Synopsis Minutes dated April 11,1983 -Approved as written BA -3-83 (Circle M Construction)-Variance to frontyard setback -Denied 1.Chairman called the meeting to order and asked the recording secretary to call the roll. 2.Mrs.Samuelson 3.Chairman 4.Luddy/Berry 5.Chairman 6.Luddy/Browne 7.Chairman 8.Mr.Alexander 9.Chairman called the roll and determined that six members were present with one absent,as noted above.She informed the Board that Mrs.Dunlop,was on vacation. noted that a quorum was present.He then asked for discussion on the Agenda,and noted that Item #5 was an item for legislative action,and should be deleted from the Agenda.He then called for a motion to approve the Agenda. MIS "BE IT RESOLVED by the Board of Adjustment of the City of Apache Junction,Arizona,that the Agenda be accepted,with the deletion of Item #5." The motion passed unanimously (6-0). asked i f there were any questions or corrections to the Minutes of April 11,1983;there were none.He then called for a motion to approve.the Minutes. MIS "BE IT RESOLVED by the Board of Adjustment of the City of Apache Junction,Arizona,that the Minutes of April 11,1983,be approved as written." The motion passed 5-0-1,with Mr.Berry voting "present." acknowledged the presence of Representative Hudson; Mayor Clarke;Councilman Damiano;Councilwoman Taylor; and Board liaison,Councilman Eidson.He than asked the City Attorney to report to the Board. stated that he was present tonight as an observer, and would assist the Board with any legal or procedural questions.He added that the City staff had prepared a good case,as did the petitioner. stated that the case on the Agenda tonight was BA -3-83, and asked staff to brief the Board on the case. Page Two -Board of Adjustment Minutes -May 9,1983 10.Mr.Nakagawa 11.Chairman 12.Mr.Nakagawa 13.Mr.Gero 14.Mr.Zielinski 15.Mr.Gero 16.Mr.Gero 17.Mr.Nakagawa 18.Chairman 19.Richard Zielinski was sworn in and briefed the Board on the case,stating that the applicant is requesting a variance to the frontyard setback from twenty (20')feet to eight (8') feet.He stated that the applicant is represented by his attorney,Mr.Zielinski,who has his power of attorney. asked Mr.Nakagawa to note,for the record,who was present at the on -site work session tonight. stated that the Board members present were as follows: Mr.Morrison;Mrs.Luddy;Mr.Vaughn;Mr.Burfiend; and Mr.Berry.Others present were:Mr.Zielinski;Mr. Ondrish;Mr.Thompson;Mr.Gero;and himself.The on -site work session was held at 6:00 p.m. stated that they did have some slides and some pictures to show,and if Mr.Zielinski would agree,he would submit all the Exhibits to the Board now for them to look at.He noted all required documents are in the file. stated he had no objection to the Exhibits being received by the Board,but without further authentication of the accuracy of the contents of the Exhibits,he could not stipulate as to their accuracy or to their source. said the City would so stipulate also.He presented the Exhibits to the Board.Exhibits #1 to #21 were as follows: 1.Plot Plan. 2.Building Plans. 3.Application for building permit;applied for, approved by the City and accepted by the owner by signature. 4.Mr.Nakagawa's Orientation Pictures. 5.Chronology of Events (12/1/82 to 3/15/83). 6.Mr.Zielinski's Letter (4/18/83). 7.Tax Parcel Identifying Map. 8.Power of Attorney from Mr.Ondrish to Mr.Zielinski. 9.Application for Variance. 10.Letter from Imogene Schmitt (300'property owner). 11.List of Property Owners. 12.Slides #13-#19,and one unnumbered (8 slides). 13.Overhead Plate of Original Plot Plan. 14.Copy of Constructed Plot Plan. 15.Inspection Card -Footings. 16.Inspection Card -Stem. 17.Inspection Card -Underground. 18.Zoning Map. 19.Receipt for Fees. 20.Plot Plan Submitted with Variance. 21.Color Marked Transparency of Original Plot Plan (#1). stated that on the agenda i t has been set forth that staff briefing would continue and they would show the slides before proceeding. showed the slides and explained the pictures to the Board. He explained that the slides were taken on April 22,1983, in the vicinity of the subject site,by him. he opened the public hearing and asked the applicant's attorney to speak on the case. introduced himself and stated he was representing the applicant,Circle M.Construction,Inc.,a small family owned corporation owned by Mike Ondrish,President.He referred to his letter of April 18,1983,and summarized the letter.He said that Mr.Ondrish contracted to build the single-family residence for the Taylor's who will be purchasing it on the FHA -235 Program.He stated that Page Three -Board of Adjustment Minutes -May 9,1983 Mr.Thompson was sub -contracting to do the concrete work.He stated that Mr.Thompson attempted to locate a beginning point so that the work on the residence could be made to conform,at least in part,with the requirements of the Zoning Ordinance,particularly as to setbacks.He explained that the way this was done was in conformance with accepted building contruction standards.He stated Mr.Thompson went to the block fence,located along the building line of the residence to the west;he followed the line at that concrete block fence to the south,and where he felt that, approximately,he would find the steel stake so that he could locate the lot corner at the southwest corner of the lot.He reached that point,and dug down into the ground and uncovered a steel bar somewhat below the surface which had every appearance of being a standard steel stake used in the construction industry in locating corner lots.He stated that using that as a starting point, Mr.Thompson then proceeded to measure out the lot corners and the lot lines,so that he could proceed with the concrete work.After Mr.Thompson had finished his work, the other sub -contractors went ahead with their part of the work.He then gave dates and details of various City inspections.He stated that the City Inspector approved the following phase of work on January 25,1983: electrical;plumbing;draining;heating and venting; and refrigerating.He said that at this stage the home was over 90 percent complete.He asked that the inspection card of January 25,1983 be also entered into the record as an Exhibit (Exhibit #22).He stated that it was not until February 8,1983,that Mr.Ondrish and Mr.Thompson were informed that the front setbacks might be wrong. He added that Mr.Keller was informed as to how the setbacks were determined,he left without pursuing the matter and stated in effect that he would leave any further follow-up to the Zoning Department.He said that after this,Mr.Ondrish installed the vinyl flooring, and had almost completed the painting when the "Stop Order" was posted on the property on February 15,1983,and the only unfinished items were some painting on the trim which was completed to protect the wood;and he also installed the carpeting since that was on special order and had already been paid for.He added that Mr.Ondrish proceeded with a survey of the lot since the question had been raised of the accuracy of the lot corners,and the error of the setbacks was discovered,that the building was too close to the lot line,and he (Mr.Ondrish) applied for this variance. He said the Zoning Ordinance permits the Board to grant this variance,in his opinion,because his client has satisfied the following requirement required conditions of the Zoning Ordinance. 1.There are special circumstances in this case because my client relied on the City inspection approvals in proceeding with almost total completion of the work before being notified by the City to stop work. 2.There is an extreme hardship in this case because, i f the Board were to require my client to relocate the house,this would subject him to extremely heavy penalties.The first is that the approximate cost of relocating the house is about $15,000.00,and the second is,that this would subject him to the possibility of a liability lawsuit by Mr.and Mrs. Taylor,because i f the house were relocated,then they would forfeit their rights under this 235 -FHA Federal subsidised program.They've gotten approval of it and approval would be forfeited i f in fact the house were relocated. Page Four -Board of Adjustment Minutes -May 9,1983 3.There is no substantial detriment to the public. Mr.Ondrish and Mr.Thompson went through the neighborhood,finding what neighbors they could, and were unable to find anybody who would tell them that this frontyard setback variance was objected to.And,I cannot for the life of me,see that there are any public health or safety factors involved. There you have a house that's sticking out a little further than i t should under the Zoning Ordinance, who does that hurt?I think what you have essentially involved here is not public health,safety,and welfare - you have a potential aesthetic problem. And to those members of the Board who were out there, I would find i t hard to believe that there is,in fact, an aesthetic problem involved. He stated that aside from satisfying the letter of the Zoning Ordinace and the conditions required for a variance, would be put to one side,and he would introduce another factor,the so-called legal word,"estoppel."He said what it means is,"It ain't fair."He stated that the City went ahead and let Mr.Ondrish build the house,almost to completion and then tells him that he has to move it, that they don't care i f they overlooked it,that i t is not their problem,that is his problem,and i t is not fair. He stated that Mr.Ondrish and Mr.Thompson did know a standard procedure in the industry -they located the steel bar.He said the neighbors to the west were also misled by the steel bar.He added that the brick planter area impinges into the twenty foot setback,and technically they are in violation since they were misled. He stated that he would like to clarify for the record that the contents of his letter of April 18,1983,were a summary of what he learned from his investigation and not made of his own personal knowledge,except for his analysis of the situation,and asks for the Board's authority in granting the variance. 20.Chairman asked Mr.Gero i f he had any questions of Mr.Zielinski. 21.Mr.Gero replied that he had no direct questions of Mr.Zielinski, but that the staff would reserve the right to call Mr.Ondrish and Mr.Thompson as witnesses. 22.Chairman asked the City staff to present its'case. 23.Mr.Zielinski asked i f the Board was willing to accept statements made in his letter as evidence or did they require further substantition. 24.Chairman replied that i t is Exhibit #6,and has been accepted as evidence.He then asked Mr.Gero to speak. 25.Mr.Gero 26.Jim Thompson stated that the Board should rely on evidence brought forth in the public hearing.He asked Mr.Thompson to be the first witness in this case. was sworn in,and replied to Mr.Gero's questions.He stated he was a licensed contractor in the State of Arizona,Class CO -9;does concrete speciality work;has had a license for 20 years;and acquired the license with a performance bond/trade knowledge/verbal and written test;and was bonded as a contractor.In response to the purpose of a bond,he stated that it was to take care of work,i f someone did not perform work. 27.Mr.Gero asked how much his bond was valued at. 28.Mr.Zielinski objected to the irrelevancy of the line of questioning. He stated Mr.Thompson was present to give testimony of what happened out there,not to his qualifications. He asked what a bond had to do with the case. Page Five -Board of Adjustment Minutes -May 9,1983 29.Mr.Gero stated that he was trying to establish the qualifications of the individual who was responsible for establishing the location of the foundation. 30.Mr.Zielinski said that Mr.Thompson had testified that he was licensed and wanted to know what a bond has to do with this. 31.Mr.Gero stated that he would withdraw the question. 32.Mr.Thompson replied to Mr.Gero's questions.He said he had been in the building trades for about 20 years.He had done approximately 20 jobs for Circle M Construction in the past two years.He explained the term "Standard rebar" as an owner's stake (3/8"or 5/8").He said.he was the sub -contractor for the subject property and was provided with a plot plan by Circle M Construction which was identified as Exhibit #1.He also stated that the construction plans,Exhibit #2,were the plansthat were given to him by Mr.Ondrish.He then said he was responsible for locating the property line;the frontyard setback;and for determining the location of the structure according to the approved plot plan..He identified the area where the foundations were poured on a plate of the subject site,saying i t included the residence area,and not the carport area.He then responded to other questions in regards to the foundation.He pointed out some areas and stated they were areas covered by inspections on December 17,1982,and_December 21,1982,Exhibits 15-17. He explained to the Board the steps he used to locate the property lines,on Exhibit #13.He said he was an experienced cement contractor and had done thousands of -foundation layouts;was not a licensedisurveyor;and had not attended a course in surveying.He stated he always has trusted locating a single piece -of rebar as being the factual property corner.He said the only other procedure that could have been followed is to have an engineer do it. In response to questions asked by.Mr.Zielinski,he stated that he and Mr.Ondrish had a conversation with Mr.Keller sometime after December 21,1982,and to the best of his knowledge he related that Mr.Keller had told them of a couple of verbal complaints about the setbacks on the house, and he told Mr.Keller that he had found the iron stake, and he was asked to uncover it,which he went down and did. He also told Mr..Keller i f there were anymore complaints that they should tome to him and he would shOw them the stake.He stated Mr.Keller said he would not pursue it .any further,that the Zoning Department would probably get into it. 33.Mr.Gero called Mr.Frazier to testify. 34.Leo Frazier 35.Mr.Zielinski 36.Mr.Frazier was sworn in and replied to Mr.Gero's questions.He gave his position with the City and length of employment. He replied to several legislative and policy questions. He explained the Adopted City Building Code,regarding surveys (Section 305a). objected to Mr.Frazier's interpretation of what the Code says.He stated that the Code speaks for itself. He said the Code says i t is discretionary by the Building Official to require a survey,and that's all i t says.He stated that the City may or may not require a survey,i t does not say that i t is incumbent upon a builder to conduct a survey before he begins building, and he asked Mr.Frazier to point to any section of the Code that makes that requirement. after clarification by Mr.Gero that this was the point he was pursuing with Mr.Frazier,he again responded to Mr.Gero's questions by stating that the Building Code does specify as to when inspections are to be made Page Six -Board of Adjustment Minutes -May 9,1983 and defines the scope of those inspections.He informed the Board of those requirements:foundation inspection; underground inspection;and frame inspection.He stated these are the basic inspections and noted that there are other inspections,as well as the final inspection after everything is completed.He then verified the accuracy of Exhibit #5,and Exhibits #1,2,and 3.He explained how a permit application is filled out and stated that the applicant fills out numbers 1-9,and that any areas not filled in are marked with a question mark for future completion.He stated he had the chronolog completed,and verified it's accuracy through City records. He also stated he was responsible to Exhibits #13 and #21, which he had prepared from the approved plot plan (Exhibit #1) by means of xeroxing. In response to Mr.Zielinski's questions i f the chronolog was verbatim or summarized,he replied that all 15 entries were summarized,where permits exist,they reflect the permits. 37.Mr.Gero called Mr.Ondrish to testify. 38.Michael Ondrish was sworn in and in response to Mr.Gero's questions,he stated he was the President of the Circle M Construction Company,and that he had made application on or about December 1,1982 for a permit to construct a single-family residence on the subject property.He examined Exhibit #3, the original application,and verified that it was the application submitted by him for the permit.He read the statement above his signature on the"Application - Zoning Clearance/Building Permit:""I hereby certify that I am the owner or duly authorized owner's agent,that I have read this application and that all information is correct.I further certify that I have read,understand and will comply with all of the provisions outlined hereon. I also certify that the plot plan submitted is a complete and accurate plan showing any and all existing and proposed structures on the subject property."He verified that he had signed this application on December 1,1982. He said he was the general contractor on the subject property. In response to Mr.Zielinski's questions,he responded that he had had a conversation on a nearby building site with Mr.Keller about two weeks before the "Stop Work Order"was issued.He stated that the conversation was after the inspection of January 25,1983.He said the discussion was centered around the frontyard setback and that Mr.Keller told him that the setback was not correct, and at that time Mr.Thompson told him that he did find the pin,and that's where he made his setback from.He said that Mr.Keller stated that i f there wouldn't be anymore questions from anyone,he would not pursue i t any further,and he said it was a good job.He stated that this was the first time that the setback was called to his attention. 39.Mr.Gero called Mr.Keller to testify. 40.Mr.Zielinski stated that he was not sure he understood the procedure of this case.He said it was his understanding that the applicant would have the opportunity to present his case before the City presented theirs.He said that he had intended that Mr.and Mrs.Taylor be allowed to speak on the facts directly involved with this application. 41.Chairman stated that he had been given a copy of the agenda stating the procedures and he had stated that he did not mind. He said that the applicant had presented his case and now it was the staff's turn. 42.Mr.Gero stated that the applicant should be given that privilege. 43.Chairman asked Mr.Keller to withdraw at this time and told Mr.Zielinski to proceed with his case. Page Seven -Board of Adjustment Minutes -May 9,1983 44.Mr.Zielinski called elther:Mr..or:Mrt.:jaylor_to testify. 45.Margaret Taylor was sworn in,and replied to Mr.Zielinski's questions. She stated that they had moved into the house built by Mr.Ondrish on March 12,1983.She said that the house was to be funded through the FHA -235 Program,and added if the variance is not approved,they will have to move as they will lose the FHA funding and there is no more money left in the Program.In response to the question asked regarding i f she had ever seen the steel lot marker,she replied that,prior to moving into the house,she had seen a steel post. In response to Mr.Gero's questions,she replied:that the wire located on the subject property that is there now,was not there when they first moved in and that the steel post was above ground with a pink flag on it. She also stated that the steel post was not there when they moved into the house. 46.Chairman asked Mr.Zielinski if he had anything else at this time. 47.Mr.Zielinski replied he did not. 48.Mr.Gero apologized to Mr.Zielinski for being out of order.He then called Dick Keller to testify. 49.Mr.Keller was sworn in,and replied to Mr.Gero's questions.He gave his position with the City and length of employment. He said he had made several building inspections at the subject property.He then gave details of the inspections. He replied that he did not verify zoning setbacks because that was not part of his job.On the date of the last inspection,he noted that the building was sitting too far into the front setback.He stated that he called the builder and left a message on his recorder,stating that the call was important.On January 28,1983,he documented contact with the builder (Exhibit #23)and placed a note in the file to this effect.He stated it was a record for his information.He said that the conversation which occurred on that date with Mr.Ondrish and Mr.Thompson consisted of being told that they were sure the setbacks were correct.He stated that his comments,as portrayed in Mr.Zielinski's letter,were not accurate.He stated he did not refer to zoning.He stated that when he was doing an inspection on another home in the area,he noted that the setbacks on the subject property did not look right.He then told the Deputy Zoning Administrator about the problem.He estimated that the house was 60-75 percent complete at this time.He said that he posted three Stop Work Orders,and a Cease and Desist Order along with the last Stop Work Order.He gave his observations,upon the request of Mr.Gero,on the property pin he observed on the subject property,identifying i t as 3/8"rebar located in a hole approximately 6"down. He noted that it did not look as i f it had been there for too long,and commented that he had never seen 3/8" rebar used as a property pin.He gave his qualifications, stating that he had been in construction work for 35 years, and had done quite a bit of concrete work during that period of time. In response to Mr.Zielinski's questions,he stated: that he was referring to the ahronolog for a mind refresher on the dates;that it was up to the contractor to verify setbacks;the setback violation was about twelve (12') feet;he gave the differences between a garage and a carport; and described what he considered as valid verification of a property pin. 50.Mr.Gero called Sandy Whitten to testify. Page Eight -Board of Adjustment Minutes -May 9,1983 51.Ms.Whitten was sworn in,and responded to Mr.Gero's questions. She gave her position with the City and length of employment.She identified the approved plot plan (Exhibit #1)and stated that the check marks on the plan indicate that she has checked the setbacks on the plot plan and they conformed to the zoning ordinance requirements.She stated that a roof overhang or - an awning having no support from the area beneath and not extending more than 30"into the setback are the only things that can go into the setback.She said the inspection of the subject property was conducted on February 15,1983,and noted that the structure was into the required frontyard setback.She stated that the subdivision plat map indicated there was an alley to the north of the lot which was to be sixteen (16') feet from north to south.Two lots had already been developed and had fences on the rear property.She said that she and Mr.Keller measured between the two fences, then measured from the north end of the block wall 113' feet to a point and then turned around and measured back twenty (20')feet to where the front of the structure should have been located.She said it actually measured eight (8')feet to the front of the structure, creating a twelve (12')foot violation.She stated that the building had not been constructed to the approved plot plan.She said that Mr.Ondrish and Mr.Thompson had both told her that a survey had been done recently by Don Riddle at Mr.Thompson's request. In response to Mr.Zielinski's questions,she replied: that the 30"maximum overhang or awning could not be supported by posts;and described how the measurements of the subject property were taken. 52.Mr.Gero stated that he had called all the persons he wanted to call on direct. 53.Chairman asked i f there was anyone present who wished to speak in favor of the case;there was no one.He then asked i f there was anyone present who wished to speak in opposition. 54.Mr.Zielinski stated he would like to have the opportunity to call Mr.Ondrish back,but would wait until after the opposition spoke. 55.Lee Reeder 56.Doyle Reeder was sworn in.She stated that she owned the lot next to #151 (#152)which was on contract to purchase.She said that she and her husband were not notified of the variance request and they both objected to it.She gave the restrictions,and objected to the subject lot being left as i t is now.She then asked i f they too could build a house on their lot with an eight (8')foot setback. was sworn in.He stated that he agreed with his wife, and he knew the project was set-up with nine (9')foot setbacks from the curbs,and there the lot line started then it was automatically twenty (20')feet back from there. 57.Mr.Zielinski asked i f he was an experienced builder to testify that a lot line can be found i f one measures nine (9')feet from the curb. 58.Mr.Reeder replied affirmative. 59.Mr.Gero asked i f that also applied when locating a structure on a section -line road,such as Southern Avenue. 60.Mr.Reeder stated that i t did. Page Nine -Board of Adjustment Minutes -May 9,1983 61.Mr.Gero asked again,from Mr.Reeder's experience i f the nine (9')foot setback can apply to a section -line road such as Southern Avenue. 62.Mr.Zielinski stated that the question has been asked and answered, and that Mr.Gero is unhappy with the answer,but the question has been answered. 63.Mr.Gero stated that the witness had asked to have the question rephrased and he was just responding to the applicant. 64.Chairman asked Mr.Reeder to answer the question. 65.Mr.Reeder 66.Mr.Gero 67.Mr.Reeder 68.Chairman 69.Joseph Morvak stated all he could go by was what was plotted out on the original plot plan,and by general procedures, nine (9')feet back from the concrete curb is the way the project is laid out. asked i f he had ever built any homes on Southern Avenue. replied that he had not. asked if anyone else would like to speak in opposition. was sworn in,and stated that he was a general contractor, with approximately 75 homes in Superstition Villa.He said that the property lines are in the hands of the sub -contractor doing the concrete work.He stated if a problem is found,which can occur especially in this subdivision since it was started in 1965 and some of the pins have been snagged and pulled out,the contractor should be called in.He said that sometimes i t is necessary to locate property pins a few lots down and then work back to the subject property.He stated he had built some homes in this area on Southern Avenue. He added that normally they set the homes back twenty-five (25')instead of twenty (20')feet from the property line. 70.Chairman asked if anyone had any questions. 71.Mr.Zielinski asked Mr.Morvak i f he had any interest in any property along Southern Avenue. 72.Mr.Morvak replied that he had built numerous homes their,but currently he does not own a lot on Southern Avenue. 73.Mr.Zielinski asked i f the City had asked him to speak tonight. 74.Mr.Morvak replied they did not. 75.Mr.Zielinski asked him i f from his experience,he could state that all the other structures near the subject property are built right up to the permitted frontyard area of twenty (20')feet. 76.Mr.Morvak replied that the majority of the structures are set twenty-five (25')feet back because he had built them. He said he could not speak for those he did not build. 77.Mr.Gero asked if Mr.Morvak built the home that is two lots to the east of the subject site. 78.Mr.Morvak stated it was three lots,on the corner of Del Rio and Southern,with a twenty-five (25')feet setback on the garage side,excluding the overhang in front,which fronts on Southern and is on the interior property line not on the Del Rio side. 79.Chairman asked i f there was anyone else to speak in opposition. 80.Mr.Gero called the Board's attention to a, letter from Imogene Schmitt,a property owner within the 300'foot area, and read her objection into the record. Page Te:n-Board of Adjustment Minutes -May 9,1983 81.Chairman asked i f there was anyone else to speak in opposition; there was no one.He then called for the applicant's summation. 82.Mr.Zielinski called Mr.Ondrish back to testify. 83.Mr.Ondrish was reminded he was still under oath.He responded to Mr.Zielinski's questions of whether the carports and porches have posts,and i f they could be removed, by saying that it would have to be cantilevered.He replied that the only Stop Work Order he received he had removed was the one he brought to the City.He said that he had not removed any other notices. 84,Mr.Gero asked i f removal of the posts would violate the 235 agreement that the buyers'have. 85.Mr.Ondrish replied that he did not think this would violate the agreement since i t basically wouldn't change anything. He replied giving the dimensions of the front porch and noted that eight (8')feet would still be in violation.He replied that the front eave of the overhang would still have to be brought back 91'feet. 86.Chairman asked i f there were any further witnesses;there were none.He then asked i f the City was to go first with the summation. 87.Mr.Gero said that i f it was agreeable the applicant could go first,the City can come next,and the applicant can. further address the Board. 88.Mr.Zielinski -stated he had no objection to the City going first. 89.Mr.Gero stated that the powers of the Board are set forth in Article 24,Section 2403,Powers.He said i t is incumbent on the Board to review all those Powers and see i f the Board is authorized to grant a variance in accordance with the comments that have been made during the course of the public hearing.He also called their attention to Section 2504,and the evidence that is required for a public hearing,in which the Ordinance says that all three criteria in Sections A,B,and C must be met.The A.R.S.Section 9-462.06(G)(2),in which special circumstances applicable to the property is discussed,including:its size,shape,topography, location or surroundings -"A strict application of the Zoning Ordinance will deprive such property of privileges enjoyed by other property in the same classification in the same Zoning district."He read further that any variance granted is subject to such conditions as will assure that the adjustments authorized shall not constitute a grant of special privilege inconsistent with the limitations upon other properties in the vicinity and zone in which such property is located.He also referred to A.R.S.Section 9-462.06(H)(2),in which special circumstances applicable to the property is self-imposed by the property owner and stated:"A Board of Adjustment may not grant a variance i f the special circumstances applicable to the property are self-imposed by the property owner."He said that the evidence set forth shows that the requested variance is after -the -fact,on a self- imposed need set forth by the property owner.He said that the evidence does not meet any of the above -sections quoted,and the testimony shows that i t is self-imposed and that the State Statute states that the Board cannot grant such a variance. 90.Mr.Zielinski "Mr.Chairman and Members of the Board,I would like you to take a look at your Zoning Ordinance.I'm going to refer to Section 2403,subparagraph d,where this Board is given the power to allow a reduction of yard requirements where in its'judgement the shape of the building site, topography,the location of existing buildings,or other Page Eleven -Board of Adjustment Minutes - May 9,1983 conditions making strict compliance to said regulations impossible without practical difficulty or hardship. I took a close look at your staff report,Mr.Chairman. Mr.Gero was kind enough to send me a copy and I appreciate it.But I think he very strongly (implied)that this Board is limited in its right to allow variances only where you have some problem with the topography or physical characterisitics of the land.There is nothing in your zoning ordinance that lays down that requirement. I ask Mr.Gero to point it out to me i f i t is in there. He won't find it.As far as the statutory prohibition, about granting variances,they are,and I'm quoting, "self-imposed by the builder."I think you have to look at the intent of the construction,Mr.Chairman.Our legislature are reasonable people.That is my assumption, Mr.Chairman.And I've had some meetings with the legislature,and I think in most cases I'm right.In drafting the legislation,i t is totally impossible to grant a statute that will meet the factual circumstances of every case that can arise under that statute.The same is true of a zoning ordinance.And,in that connection, I'd like to talk to you for a few seconds about the historical background of the creation of boards of adjustment. They were created for one reason,and that is there is no way anybody can draft a perfect zoning ordinance.I don't care who he is,how smart he is,or the experience he has. A zoning ordinance is a rigid document,and in order to make it work as a practical matter, you have to have a board of adjustment to create exceptions to the zoning ordinance.And,I submit to you that the function of this board is to focus on one factor and (boil)all these statute and zoning ordinance requirements into one factor - one word,and that is 'fairness.'I think that's what we're all looking for.I think that's what the legislation means,it (adopts)legislation.I think that's what your zoning ordinance promulgators mean when they adopt a zoning ordinance.I think the large preponderance of testimony that you've heard in this case leads you to believe that Mr.Ondrish and Mr.Thompson acted reasonably. They didn't perfectly,but they acted like a reasonable man would.They acted in conformance with reasonable building standard practices when they located that stake per testimony of Mr.Reeder,I think,because everywhere in that subdivision that he built in,he located the stake the same way that Mr.Thompson did.He ran in nine feet from the curb and he found it,and then he went ahead and built accordingly to that finding.So,they acted reasonably,Mr.Chairman.There is no evidence that they acted negligently,outside the required standards of building practice.Whether they acted deliberately,there's no showing that they acted from any motivation of monetary gain,or anything of that kind.It was just that that stake happened to be there and I suspect the problem arose way back when,when the original subdivider made his mistake with the surveyors and placed the stakes in the wrong area.So, the second factor,I have to urge upon you the realization of this.That the City,too quickly,tries to deny any cupability in this situation.They tried to tell you that the right hand never has to know what the left hand is doing.I don't buy that.I think it's a shabby way to treat it's citizens,to treat your builders.For people in the same department,supposedly having different roles, that don't contact in each -Mr.Keller should have detected that zoning violation.Certainly he had suspicions of the violation before he passed the inspection of January 21, and yet he passed it.He had suspicions at that time.I just don't think the City can that easily shed their responsibilities.And,it's a difficult decision for the Board to make,I know,but I believe you're looking for justice and fairness in this case,and I'll just leave that in your hands.Thank you." )denote difficulty in understanding.Sec.Note:Words i Page Twelve -Board of Adjustment Minutes -May 9,1983 91.Chairman stated that it was now time for the Board inquiries. He asked Mr.Morrison i f he had any questions or comments; he had none.He then asked Mrs.Luddy i f she had any questions or comments. 92.Mrs.Luddy stated that the applicant for the variance is the contractor, and that the statutes refer to the property owner. 93.Mr.Alexander commented that i t should be the Taylor's or both the contractor and the owners. 94.Mr.Zielinski asked the Taylor's i f they wished to join in as applicants. 95.Mr.Ondrish informed the Board that the transfer of title has not yet been completed. 96.Chairman asked Mr.Browne i f he had any questions. 97.Mr.Browne asked Mrs.Taylor to come forward.He then asked what the problem was with the FHA loan., 98.Mrs.Taylor 99.Chairman 100.Mr.Berry stated that there was no more building under FHA -235. asked Mr.Berry i f he had any questions. asked Mr.Thompson when the permit is issued and the cement is poured,and i t does not conform to the rest of the area, i f the contractor was not brought into the picture i f i t is out of line. 101.Mr.Thompson replied that i t looked on line to the west. 102.Chairman 103.Mr.Gero gave the measurements from curb to porch as 18'feet,and next door is 39'1"from curb to porch,with one house down the line being 38'feet. stated that his notes on the subject site were that i t measured 24'3"from back of curb to the eave of the property, and the measurement to the foundation was 29'3"from back of curb on the subject site.The house to the west was about 38'feet. 104.Chairman after a five-minute recess,he asked Mr.Burfiend i f he had any questions. 105.Mr.Burfiend asked Mr.Ondrish i f there was a registered surveyors plan showing the location of improvements on this site; the location of Southern Avenue;and setbacks from the property line from the existing curb. 106.Mr.Ondrish replied that it was surveyed after the improvements were put on the building. 107.Mr.Burfiend stated that they should recess until they get the survey. 108.Mr.Gero asked i f he could recall Mr.Morvak due to some information on FHA funding that came to his attention during the recess. 109.Mr.Morvak 110.Chairman 111.Mr.Morvak stated that under the current circumstances,he believed the last extension of FHA -235 Program required that loans be funded by March 31,1983. asked Mr.Morvak who supervises jobs and i f i t is the builders responsibility to locate the property pins. stated that the contractor supervises the job and the initial burden of locating the property pins is on the concrete man,unless he has problems finding them. Page Thirteen -Board of Adjustment Minutes -May 9,1983 112. 113. 114. 115. Mr.Berry Mr.Morvak Chairman Mr.Ondrish 116.Chairman 117.Mr.Thompson 118.Chairman 119.Mr.Zielinski 120.Mr.Thompson 121.Mr.Ondrish 122.Chairman 123.Mr.Keller 124.Chairman 125.Mr.Ondrish 126.Chairman 127.Mr.Ondrish 128.Chairman 129.Luddy/Berry He added that then a determination on where to place the building will be made,or a surveyor will be brought in. He stated the surveyor is supposed to send a detailed plot plan indicating what he found.He said that the size of the rebar is 1"or 1"iron pipe,and that he had not seen a 3/8"rebar used before as a property pin.He also said that depending on the area,i t could at times be double staked. asked where the utility poles go on Southern. replied that they were in the easement area. asked Mr.Ondrish i f he had a letter from the engineer. stated that he did not,but that Ms.Whitten had verified the survey. asked Mr.Thompson how many houses he had built for Mr.Ondrish and what date he found the rebar. replied he had built a couple of hundred houses for Mr.Ondrish,and the rebar was found on the date of the footing inspection,which he had dug out again today because i t had been covered over by dirt from the vibration of the passing traffic. asked Mr.Zielinski i f he could ask Mr.Thompson about his bond. stated it was the Chairman's right. stated his bond was for $1,000.00. when asked the same question,stated his bond was for $5,000.00. reviewed some of the dates from the chronolog.He then asked Mr.Keller what a Stop Work Order says. stated that one of the things i t says is,"Do Not Remove." He added that the property owner is to tear off one portion and that is brought into the City.He added that the first Stop Work Order was issued when the house was about 50 percent done. asked Mr.Ondrish why the work was continued on the house after the first Stop Work Order. disagreed that the house was only 50 percent completed. He said all that remained was the floor covering and the paint,and also that the electrician had to come back. commented that the house was completed after the Stop Work Order was issued. stated that his application for a variance verifies that. closed the public hearing and after Board deliberation, called for a motion. M/S "BE IT RESOLVED by the Board of Adjustment of the City of Apache Junction,Arizona,that a variance to Section 1106,allowing an eight (8')foot frontyard setback instead of the required twenty (20')foot frontyard setback,is hereby denied. The Board bases its decision on the following reasons: 1.The Arizona Revised Statutes Section 9-462.06(H)(2) states that a Board of Adjustment may not grant a variance i f the special circumstances applicable to the property are self-imposed by the property owner. Page Fourteen -Board of Adjustment Minutes - May 9,1983 130.Mr.Gero 2.Evidence presented tonight at this public hearing justifies the fact that there is no hardship to the property owner,and the special circumstances applicable to the property are self-imposed by the property owner." The motion passed 4-2, with Mr.Browne and Mr.Morrison dissenting. informed Mr.Zielinski that all the exhibits presented at the public hearing would be kept in the files if the Board and Mr.Zielinski did not object.There were no objections. 131.Chairman there being no further business,the meeting adjourned at 11:07 p.m. Respectfully submitted, Joseph'W.Gero,Executive Secretary APPROVED: Bill Vaughn,Ch-dirman E.