HomeMy WebLinkAbout1989-08-07 BOA MINUTESBOARD OF ADJUSTMENT
CITY COUNCIL CHAMBERS
1001 NORTH IDAHO ROAD
APACHE JUNCTION,ARIZONA
AUGUST 7,1989
7:00 P.M.
WORK SESSION ON AGENDA ITEMS AT 6:45 P.M.
PRESENT ABSENT GUESTS
Mr.Elliott Mrs.Blatterspiel List in
Mrs.Kelley Mr.Schaffer Planning
Mr.Leffler Office
Mr.Wilson
Mr.Sanchez,Chairman
Mr.Coleman,Staff
Mr.Dunn,Staff
Mr.Esquivias,Staff
Mr.Nakagawa,Staff
Mr.Hoffman,Executive Secretary
Mrs.Pruitt,Recording Secretary
SYNOPSIS
ROLL CALL
Amended agenda dated August 7,1989 approved as
submitted.
Executive Session scheduled for August 21,1989.
Minutes dated January 9,1989 approved as submitted.
Election of officers postponed to August 21,1989.
Withdrawal of BA -11-89 accepted.
BA -2-89 continued to August 21,1989.
Chairman Sanchez:"I will open the session of this
evening.This is the City of Apache Junction Board
of Adjustment meeting this 7th day of August,1989,
at 7:00 p.m.I am Ken Sanchez,Chairman,and at
this time I will call for order and request the
Recording Secretary to call the roll."
Mrs.Pruitt:"Mrs.Kelley...(Mrs.Kelley:"Yes");
Mr.Schaffer...;Mr.Leffler...;(Mr.Leffler:
"Here");Mrs.Blatterspiel...;Mr.Elliott...
(Mr.Elliott:"Here");Mr.Wilson...(Mr.Wilson:
"Here");Mr.Sanchez...(Mr.Sanchez:"Here")."
Chairman Sanchez:"Okay,in that we have a quorum,
I will call this meeting to order.Now I will ask
the...let's see,we have a little problem here now:
we don't have a quorum for those who were here for
the last minutes...."
Mr.Dunn:"The minutes aren't up yet."
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE TWO
Chairman Sanchez:"Any members who were not here
for the last meeting cannot vote on the minutes,so
maybe we ought to...well,let's first go through the
agenda;we'll get to that later.Okay,at this
time,we will ask for an approval of the agenda,and
I will need a motion,and we have a rather complex
possible motion."
AGENDA Board Member Leffler/-M/
"Mr.Chairman,I make a motion that we approve the
agenda with the exception of the Executive Session
[Item 1A]which shall be postponed at the pleasure
of the Board till the next meeting,accepting the
approval of the minutes on the agenda,accept the
cancellation of the Board meeting and No.3 as
requested,and postpone the election proceedings
until the next regular meeting with the exception of
an appointment of a temporary Vice -Chairman to
fulfill the needs."
Chairman Sanchez:"Okay,we cannot delete 1A and
then continue it.We either have to accept i t and
place i t on the agenda before we can continue it.
As of now,it's not on the agenda.I t is something
to...."
Mr.Leffler:"It's an option.I f I can reword i t
to
Chairman Sanchez:"You have to place i t on the
agenda before you can continue it.(Mr.Leffler:
"Well,then...")"And there is specific language
that you have to use to do that."
Mr.Leffler:"All right,then,since i t isn't on
the agenda at the moment but an option,I'll reword
i t to move that we approve the agenda of Items 1,2,
3 and postpone the elections,with the exception of
appointing a temporary Vice -Chairman until the
election at the next regular meeting."
Chairman Sanchez:"Okay,you want to place 1A on the
agenda?"
Mr.Leffler:"No,I said with the exception of 1A."
?:"To be read off."
Mr.Hoffman:"Sir --what you can do is leave 1A on
the agenda;when you get to Item 1A on the agenda,
you can move to postpone the Executive Session to --
say,you want to have i t August 21."
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE THREE
Chairman Sanchez:"Okay,does everyone understand
the motion?"
Mr.Elliott:"No,I would like to have i t restated,
please --Thank you."
Chairman Sanchez:"Barbara?"
Mrs.Pruitt:"I'm sorry --I have i t on the tape,but
I am not sure what was said."
Chairman Sanchez:(to Mr.Leffler)"Are you able
to restate your motion?"
Mr.Leffler:"I believe I can:I move that we
approve the agenda as listed which consists of the
Executive Session [Item 1A],the approval of the
minutes,the cancellation of the Board meeting with
a postponement of Item 3A and 4 till the next
regular session,except that we should have,to keep
i t in order,appoint a temporary Vice -Chairman to
serve until the next meeting."
Chairman Sanchez:"We can't appoint a Chairman.We
have to elect one --I mean,a Vice -Chairman --I don't
know what your reasons for a Vice -Chairman are,
specifically,but unless you expect something to
happen to me...."(Mr.Leffler:"Who knows?")"Is
what you mean,to allow the Chair to continue until
then and delete it? --we can't appoint a Vice-
Chairman;we have to elect one.We have no one
authorized to appoint a Vice -Chairman,with the
exception of the Board,which must be by a majority
vote."
Mr.Leffler:"I'm not too sure about that;I think
in a temporary situation in the rules that to
fulfill a vacancy until our regular election,i t can
be done."
Chairman Sanchez:"Well,in the absence and the
death,resignation or otherwise loss of appointment,
I am advised that the person holding the Vice -Chair
at the time of the next regular scheduled meeting,
the election of the Vice -Chairman will take place."
(Mr.Leffler:"Right.")"But there's no provisions
for appointing a Vice -Chairman.That election --if
you want to have an election of Vice -Chairman,you
can do so tonight,or you can elect a Chairman
tonight if you will."
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE FOUR
Mr.Leffler:"I just don't want to get into an
election process tonight,but I thought perhaps a
Vice -Chairman is a part of the fulfillment of the
Board's obligations and it would be handy to have
one available."
Chairman Sanchez:"We can elect one."
Mr.Leffler:"I had rather get to the people who
really need our services."(He laughed.)(Chairman
Sanchez:"I agree.")"All right,i f I delete the
last portion...Vice-Chairman"(Chairman Sanchez:
"But you're making the motion,and we have to
clarify i t before we can act on it.")"I would
delete the part about the Vice -Chairman."
Chairman Sanchez:"You want to continue that to our
next meeting,whether special meeting or regular
meeting?"
Mr.Leffler:"I'm sorry,I don't quite know the
ground rules on this."
Chairman Sanchez:"Well,as we discussed in our
regular session,i f the appeal (?)is necessary to
continue the hearing that is before us tonight,i t
would be by a Special Session on the 21st of August
rather than at our next regular scheduled meeting,
to not delay the applicant any further than we have
to."
Mr.Leffler:"Yes,the only reason I say that this
is,and i t is a matter of clarification,it's in the
book here,that i f the Chair wishes to speak,he has
to turn it over to the Vice -Chairman if he be
present or appoint someone to stand in i f he wishes
to contribute to anything on the agenda,or i f
he..."
Chairman Sanchez:"If he wishes to make a motion,
he has to do that;he can speak all he wants to."
(Mr.Leffler:"Right --that's the only point I
wanted it.")"If he wishes to make a motion,he
must pass i t to the Chair."
Mr.Leffler:"Right on it.That's the only reason --
there is no Vice -Chairman present at the moment,as
I understand."
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE FIVE
Chairman Sanchez:"Well,the Vice -Chairman resigned
in January,and we haven't had a..."(Mr.Leffler:
"I rest my case!")"We haven't had a meeting since
then,so we haven't been able to elect one.Okay,
does everyone understand the motion at this time?"
Mr.Leffler:"Essentially what i t is,I move we
adopt the agenda as i t stands with the exception of
the election of a Chairman at this particular time,
and we should continue i t to the next meeting."
Chairman Sanchez:"Okay.Is the motion
understood?"
Mrs.Pruitt:"Did you wish also to delete the
election of the Vice -Chairman?"
Mr.Leffler:"I did not want to delete anything.I
just want to extend i t out.My problem is I wanted
a Vice -Chairman at the moment,but I gave in."
Mr.Hoffman:"If you are going to postpone those,
please do postpone them to a date certain --for
example,August 21.It wouldn't be your next
regular meeting;this would be two weeks from now."
Mr.Leffler:"Okay,I stand...whatever."
Chairman Sanchez:"Either that or leave them on the
agenda,and when we get to agenda,then they can be
postponed."
Mr.Leffler:"Well,unfortunately,I haven't heard
a second,so all this talk means nothing."
Chairman Sanchez:"I haven't asked for a second
yet.We're not going to get one till I ask for it,
but we need to get your motion so we know what we're
seconding to.Now,I can understand your motion:
you have deleted 1A;now,are you going to leave in
3A and 4?"
Mr.Leffler:"I believe my original motion amended
before any action was to approve the agenda dated
August 7,1989,deleting 1A,keeping in No.2 and
No.3,and postponing until August 27 the election
of Chairman and Vice -Chairman."
Chairman Sanchez:"You said the 27th...."
Mr.Leffler:"August 27 is what he suggested."
Chairman Sanchez:"The twenty-first...(Mrs.
Pruitt:"The twenty-first"),"which is a Monday
night,and this chamber is clear that night."
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE SIX
Mr.Hoffman:"Sir,i f I can --just to facilitate
discussion --if you approve the entire agenda as i t
is and you get down to the items that you want to
postpone,you can just postpone them."
Chairman Sanchez:"I'm trying to get the gentlemen
to...anything you want to postpone,we can place on
the agenda,and when we get to that agenda,then
postpone the item."
Mr.Leffler:"In the interest of the situation --I
seem to be confusing everybody --I withdraw my
motion."
Chairman Sanchez:"Okay,a motion that has been
made has been withdrawn.We need a motion to accept
the agenda."
Board Member Kelley -M/
"I make the motion that we approve the agenda dated
August 7,1989...(Chairman Sanchez:"As
presented.")"As presented."
Chairman Sanchez:"...that the Executive Session
...be included in the motion."
Mrs.Kelley:"You want me to read these specific?"
Chairman Sanchez:"Yes,you're making a motion to
accept the agenda and to...[accept]the Executive
Session."
Board Members Kelley/Wilson -M/S
"I move that at an Executive Session of the Board of
Adjustment and Appeals be held on August 7,1989,in
the Conference Room of Building A,City Hall
Complex,Apache Junction,Arizona, 'and that i t be
considered as an emergency measure under A.R.S.
Section 38-431.02J for the following reason:
"In order to expedite this request and avoid
unnecessary delay to the applicant,the Board finds
i t necessary to receive legal advice concerning
BA -2-89 the application of Bobby Beeman,represented
by A.Paul Blunt,to appeal the decision of the
Zoning Administrator.
"I also move that the elections for the Chairman of
the Board of Adjustment and Appeals be conducted at
the regularly scheduled meeting of August 7,1989 be
considered as an emergency measure under A.R.S.
Section 38-431.02J for the following reason:
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE SEVEN
"In order to comply with the rules and procedures
established for the City of Apache Junction Board of
Adjustment.The RULES OF THE CITY OF APACHE
JUNCTION BOARD OF ADJUSTMENT (revised April 7,1989)
require that elections for Chairman of the Board of
Adjustment be conducted at the first regularly
scheduled meeting in the month of July of each
calendar year.The Board did not meet in July.
August 7,1989 is the next regularly scheduled
meeting at which the Board can hold elections."
Chairman Sanchez:"Okay,thank you,Mrs.Kelley.
We have a motion to accept the agenda as items and
exceptions noted."
Mr.Hoffman:"Mr.Chairman,there wasn't a time
mentioned for the Exec Session --you might just want
to say 7:30."
Board Member Kelley (amended motion):"...place the
time at 7:30 p.m.,August 21,1989,in the City Hall
Complex,Apache Junction,Arizona."
Chairman Sanchez:"Again,we have the agenda as
presented with additions..."
Mrs.Pruitt:"Excuse me,Mr.Chairman,I have a
question.When she read that motion,did she read
i t 'to be held on August 7'or 'August 21'?"
Chairman Sanchez:"The seventh."(Mrs.Kelley:
"The seventh.")
Mrs.Pruitt:"Well,then,just a moment ago,you
said 'the twenty-first at 7:30'."
Mr.Hoffman:"That should be 7:00 --tonight."
Mr.Elliott:"We're going to postpone items as we
come to them on the agenda."
Mrs.Pruitt:"Right --right.I just wanted to get
i t clarified."(Chairman Sanchez:"She meant the
seventh.")"So i t should be the seventh?Okay."
Chairman Sanchez:"There is a little confusion.
Okay,we have a motion.Do we have a second?"
Mr.Wilson:"I second the motion."
Chairman Sanchez:"Any discussion?Vote by roll
call,please."
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE EIGHT
Mrs.Pruitt:"Mrs.Kelley...(Mrs.Kelley:"Yes");
Mr.Wilson...(Mr.Wilson:"Yes")-;Mr.Leffler...
(Mr.Leffler:"Aye");Mr.Elliott...(Mr.Elliott:
"Aye");Mr.Sanchez...(Mr.Sanchez:"Yes").-"
[Motion passed 5-0-0.]
Chairman Sanchez:"Is that unanimous?"
Mrs.Pruitt:"Yes,sir."
Chairman Sanchez:"Okay,our next item on the
agenda then,would to be go into Executive Session,
which we would need a motion to go into the
Executive Session or to postpone until August 21,
the time and place specific,or to....We need a
motion at this time to either go into Executive
Session or to postpone the Executive Session as we
had discussed."
Board Members Kelley/Elliott -M/S
"I move that we postpone the Executive Session to
August 21,1989,to be held in the Conference Room
of Building A,City Hall Complex,Apache Junction,
Arizona...(Chairman Sanchez:"At what time?")at
7:30 p.m.,due to the lack of time frame..."
Chairman Sanchez:"It's 7:30 now;at the twenty-
first you can use whatever time you want."
Mrs.Kelley:"7:00;7:30;6:30--I don't care --
whatever time you want it."
Chairman Sanchez:"You have to say that."
Mrs.Kelley:"7:00."
Chairman Sanchez:"We have a motion to postpone
Item 1A until the 21st day of August,1989,at
7:00 p.m.in the Council Chambers.Do we have a
second?"
Mr.Elliott:"I'll second that."
Chairman Sanchez:"All right,we have a second.
Any discussion?There is none.Vote by roll call,
please."
Mrs.Pruitt:"Mrs.Kelley...(Mrs.Kelley:"Yes");
Mr.Elliott...(Mr.Elliott:"Yes");Mr.Leffler...
(Mr.Leffler:"Yes");Mr.Wilson...(Mr.Wilson:
"Yes");Mr.Sanchez...(Mr.Sanchez:"Yes")."
[Motion passed 5-0-0.]
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE NINE
Chairman Sanchez:"Okay,next on our agenda item is
approval of minutes dated January 9,1989.I need a
motion to accept those minutes as submitted or...."
Board Members Kelley/Leffler -M/S
"I make a motion that we approve the
January 9,1989."
Chairman Sanchez:"We have a motion
minutes.Do we have a second?"
minutes dated
to accept the
Mr.Leffler:"I'll second it."
Chairman Sanchez:"We have a second.Any
discussion?"
Mr.Elliott:"I didn't receive them."
Mr.Leffler:"They're in the book."
Chairman Sanchez:"They're in your packet."
Mr.Elliott:"Are they here?"
Chairman Sanchez:"Yes.Do you wish to read them?"
Mr.Elliott:"No..."
[Mr.Leffler made an unintelligible comment.]
Chairman Sanchez:"Okay,i f there's no other
discussion,we'll vote by roll call."
Mrs.Pruitt:"Mrs.Kelley...(Mrs.Kelley:"Yes");
Mr.Leffler...(Mr.Leffler:"Aye");Mr.Elliott...
(Mr.Elliott:"Aye");Mr.Wilson...(Mr.Wilson:
"Yes");Mr.Sanchez...(Mr.Sanchez:"Yes")."
[Motion passed 5-0-0.]
Chairman Sanchez:"Okay,the minutes are approved
as stated.Now we have Item 3,'Cancellation of
Board Meeting,'which was dated February 13,1989,
in which actually no meeting was held.Do you want
a motion to cancel?"
Mr.Hoffman:"No,sir.That's only informational."
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE TEN
Chairman Sanchez:"...cancellation of that meeting,
then we will continue on through Item 3A,which is
'Election of a Chairman.'And in order to do that,
I have to turn this meeting over to our Executive
Secretary,Mr.Hoffman,which will conduct the
election if necessary."
Mr.Hoffman:"Thank you,Mr.Chairman.You have
two alternatives:you can vote for a Chairman
tonight,or you can move to postpone the election
until a date certain;for example,your next
meeting,August 21,and I simply need to know which
way you want to go right now."
Board Members Elliott/Kelley -M/S
"Mr.Chairman,I move that Item 3A and Item 4 on the
agenda be postponed and set for our August 21
meeting date."
Mr.Hoffman:"Does that need a second?I have a
quick question --[turning to Kathy Connelly] --Kathy,
can we do two items with one motion on the agenda?"
Ms.Connelly:"You should have made a motion
accepting the agenda...consent...is fine."
Mr.Hoffman:"Okay,can we just have a motion to do
what Mr.Elliott said,one at a time?"
Ms.Connelly:"Yes."
Mr.Hoffman:"Okay,let's do that.I'm not sure.
Let's just take 3A and then 4.If you would restate
your motion."
Board Member Elliott/Kelley -M/S
"The motion is that Item 3A 'Election of Chairman'
on the agenda be postponed until August 21st
meeting."
Mr.Hoffman:"Barbara --was there any other
discussion? --Barbara,if you would call the roll."
Mrs.Pruitt:"Mr.Elliott...(Mr.Elliott:"Aye");
Mrs.Kelley...(Mrs.Kelley:"Yes");Mr.Leffler...
(Mr.Leffler:"Aye");Mr.Wilson...(Mr.Wilson:
"Yes");Mr.Sanchez...(Mr.Sanchez:"Yes")."
[Motion passed 5-0-0.]
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE ELEVEN
Chairman Sanchez:"Okay,Item 4 on our agenda is
'Election of Vice -Chairman'.I need to hear
nominations or postponement to August 21."
Board Members Elliott/Kelley -M/S
"Mr.Chairman,I move that we postpone Item 4 on
tonight's agenda until August 21 meeting date,
'Election of Vice -Chairman'."
Chairman Sanchez:"We have a motion and a second.
Any discussion?Vote by roll call,please."
Mrs.Pruitt:"Mr.Elliott...(Mr.Elliott:"Aye");
Mrs.Kelley...(Mrs.Kelley:"Yes");Mr.Leffler...
(Mr.Leffler:"Aye");Mr.Wilson...(Mr.Wilson:
"Yes");Mr.Sanchez...(Mr.Sanchez:"Yes")."
[Motion passed 5-0-0.]
Chairman Sanchez:"Okay.Item 5,BA -11-88 was
opened on January 9,1989,and has subsequently been
resolved between that time and now,and i t is
necessary for this Board to eliminate that item on
the agenda for all time because this has already
been resolved.All we need is a motion to withdraw
Item BA -11-88 from our agenda."
Board Members Leffler/Wilson:MIS
"Mr.Chairman,I move the recommended motion that
the Board accept the withdrawal of Case BA -11-88."
Chairman Sanchez:"Okay,we have a motion and a
second.Any discussion?"
Mrs.Pruitt:"I'm sorry --who was the second?
Mr.Wilson?"
Mrs.Kelley:"Yes."
Chairman Sanchez:"I'm not familiar with the
names.Do you have it?"
Mrs.Pruitt:"Yes."
Chairman Sanchez:"Being no discussion,vote by
roll call."
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE TWELVE
Mrs.Pruitt:"Mr.Leffler...(Mr.Leffler:"Aye");
Mr.Wilson...(Mr.Wilson:"Yes");Mrs.Kelley...
(Mrs.Kelley:"Yes");Mr.Elliott...(Mr.Elliott:
"Aye");Mr.Sanchez...(Mr.Sanchez:"Yes")."
[Motion passed 5-0-0.]
Chairman Sanchez:"Okay,at this time I'm going to
open BA -2-89 to the public,a hearing of Bobby
Beeman,an application of Bobby Beeman which will be
represented by A.Paul Blunt,to appeal the decision
of the Zoning Administrator,regarding what may and
may not be sold and/or stored outside of a building
in a CB -2 General Business zoning district;
Section 16.0200 of the Apache Junction Zoning
Ordinance.The subject property is located on the
southwest side of U.S.Highway 60,approximately
1000 feet northwest of Tomahawk Road.And before we
proceed,there are a couple of things I would like
to discuss with the public:when you are called
upon to speak,please step to the podium,state your
name and your address,and please address all your
remarks to the Chair.Okay,at this time,I'm going
to ask our staff to brief the Board on the case."
Mr.Hoffman:"Thank you,Mr.Chairman.I'll ask
Assistant Planner Bob Dunn to present an overview of
the case --Bob."
Mr.Dunn:"Thank you,Mr.Chairman.Members of the
Board,Section 11.0103 of the Apache Junction Zoning
Ordinance authorizes the Board of Adjustment and
Appeals to 'Hear and decide appeals where i t is
alleged by the appellant that there is an error in
any order,requirement,decision,grant,or refusal
made by the Zoning Administrator in the enforcement
of the Ordinance...';BA -2-89 is such a request.
"The Zoning Administrator has determined that the
uses proposed by the applicants are permitted in
Section 16.0201,subsection C.,CB -2 General
Business Zone,but they must be conducted within a
completely enclosed building.
"The applicants dispute the Zoning Administrator's
interpretation that the proposed uses must be within
a building.They argue specifically that only the
uses listed under Section 16.0201,subsection A.are
required to be conducted within an enclosed
building,and that the other uses listed in CB -2,
including their own proposed uses,can be conducted
'within an enclosed,fenced area with appropriate
buffers and screens similar to those indicated in
the CI -1 Light Industrial district.'
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE THIRTEEN
"The detailed arguments supporting their interpre-
tations are included in your packet material,and
the applicant or Zoning Administrator will brief you
on those arguments,in turn.The Board in this case
is charged with the responsibility of upholding or
overruling the Zoning Administrator's decision based
on the facts of this case.To aid in that decision
staff has provided background material or
information including a history of the site,a
chronology of events leading to the appeal and
correspondence related to the case.I won't go over
each of those items individually.If you have
questions,we can.I will just briefly talk about
the history of the site and then turn i t over to the
applicant.
"In 1984 the site was rezoned --the 12 -acre site --was
rezoned to CB -2 by the Dunrite Asphalt Company.
There were protests against that zoning from
residents who were concerned over a possible
obstruction of their view,higher levels of noise
and crime,decreased property values,and so on.
Despite the protests and some Planning and Zoning
Commission's recommendations for stipulations to
mitigate what they thought would...an impact,the
City Council approved the rezoning to CB -2 without
any stipulations.That was in November of 1984.
"In 1987 the Beemans owned the property and they
petitioned the City Council to rezone the parcel
from CB -2 General Business to C-4 Commercial.Their
intent was at that time to create an office and to
store drilling rigs and pipe materials on the
property.At the time the CB -2 zoning was
determined that --excuse me, --it was determined that
CB -2 zoning required such materials to be stored in
a building while C-4 only required a screening wall.
"Again,the property owners objected to the rezoning
with many of the concerns as they had had in 1984.
Due to the petitioners'complaints,the Beeman's
amended their rezoning request to cover just the one-
acre island that is seen in this part of the
overhead here [he pointed to projection on wall];
the remaining lot surrounded by that area remained
CB -2.The decision might have alleviated some of
the petitioners'fears by moving the proposed uses
away from the periphery of the site but also had the
effect of nullifying all the protests of the
petitioners around that area because i t put them
outside the 150 -foot range.
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE FOURTEEN
[Tape changed to side 2 --some words of presentation
missed.Transmittal letter states:"On January 8,
1988,the City Council approved the request for C-4
with several stipulations aimed at mitigating the
potential negative impacts associated..."]
"...if in fact they say with the proposed use
(that's Ordinance No.604 which is attached).
"The Beemans subsequently constructed a building and
screen wall around the one -acre portion as they had
proposed at the time of rezoning.And then there
was an exchange of letters --a year passed,and there
was an exchange of letters --between Beeman and the
Zoning Administrator from January through March in
which Beeman set a proposed specific uses in there.
The Building Department responded with their
interpretation of the Ordinance,which I will let
them discuss in a moment.That will complete the
overview of this site --of the case.If you have any
questions,I would be happy to answer them at this
time."
Chairman Sanchez:"Okay,do you have any questions
of the Board to Mr.Dunn?"
Mr.Leffler:"If I may,I would like to.At the
beginning of your preamble,i t said 'screenings and
shields and buildings',and I have here the
Ordinance that you gave us for a ---starting with
16.020[0]General Business Zone and then going on
through,and nowhere in there does i t say anything
about screening;nowhere does i t say anything about
building,except in specific cases;and some of the
items on there that i t specifically itemizes,such
as 'sale of automobiles,' --just pick one for no
other reason --there's no condition there where they
are enclosed in buildings that I can see anywhere in
general usage;so,I was just curious to where you
pick up the items that say 'enclosed in buildings'
and also 'enclosed in screening'on that particular
thing.Now,I realize that previous ordinance[s]
have that in,but this particular zoning does not
have i t in,that I can see."
Mr.Dunn:"The reference initially to the 'fenced
and screened'area comes from the applicants:their
interpretation of the Zoning Ordinance,based on a
less restrictive CI -1 Industrial Zoning district,
which requires that,which I think we will have to
get into a discussion of further,with the applicant
and the Zoning Administrator."
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE FIFTEEN
Mr.Leffler:"Then you agree,then,i t is not in
the CB -2 ordinance as i t appears in our book?"
Mr.Dunn:"I'm not--I--I--it is in the ordinance."
Mr.Leffler:"CB -1,but not CB -2?"
Mr.Dunn:"Right,and that's why I'll let the
Zoning Administrator and the applicant tell you how
it's been interpreted,because I didn't do the
interpretation of i t but rather put together the
information on the case,and I think the answers
would better come from the Zoning Administrator than
for me to explain why and from the applicant who
also feels at least that it would be in a fenced -in,
screened area and how they read the ordinance and
apply i t to this situation."
Mr.Leffler:"What do you think is the real problem
here? --I mean,in a nutshell?"
Mr.Dunn:"The issue is what can and can't be
stored inside and outside --inside or outside of a
building in this zoning district.That's what the
Board is charged with determining tonight,and
there's a grey area that the applicants and the
Zoning Administrator disagree on,and they should be
able to present their cases for your benefit."
Mr.Leffler (OR Mr.Elliott ?):"So that you want
them to put up a building where they presently now
have a cyclone fence around the 11 acres?"
Mr.Dunn:"That's a legal interpretation.I think
that has to be in a completely enclosed building."
Chairman Sanchez:"Gentlemen,the issue at hand is
that the decision has been made by the Zoning
Administrator,and its interpretation of the CB -2
zoning,which is the parcel under question.The
applicant is appealing that decision made by the
Zoning Administrator.I think it would be more
appropriate to allow the Zoning Administrator to
make this case;it would be more appropriate to ask
him the questions that you are asking Mr.Dunn
because all Mr.Dunn has done is simply supply the
information,and the Zoning Administrator who has
denied or interpreted the Zoning Ordinance.., the
things he's doing,and it's been appealed,so let's
let --wait till we...."
Mr.Elliott:"Sometimes you find the answer in the
strangest places."
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE SIXTEEN
Chairman Sanchez:"Well,that's true,but you're
asking someone who can't answer your question.
That's what he's trying to tell you --he cannot
answer your question."
Mr.Elliott:"Okay."
Chairman Sanchez:
if we can."
...this session,let's move on
Mr.Hoffman:"Mr.Chairman,just a quick note:I
don't believe in this instance that i t is so much a
case of Mr.Dunn not being able to answer the
question as I perceive the Planning Department's
role here is to provide you folks with information
to help make that decision.We are not taking an
advocacy stance for the appellant or for the Zoning
Administrator,and I talked with Bob about this
before.I don't want him siding with one side or
the other;we're here to provide you information,
and I think Mr.Elliott's concern is a key one that
I think the attorney and Charles will want to --in
order to win their case,they're going to try to
tell you that certain things are the key issue,and
for Bob to pick one of those could very well bias
what you folks think the issue is and therefore what
the outcome is.Just as a note because I know we're
along into i t here,and it's taking us a little
longer because we're getting used to who does what
and what our roles are,and how we work through it.
Just a comment on that.Thank you,sir."
Chairman Sanchez:"Okay,what you're actually
saying is the conflict,if we may put i t that way,
is between the Zoning Administrator and the
applicant,and that's what I'm trying to do,is keep
i t there.Any other questions?Are you finished? --
I'm sorry.Any other questions?"
Mr.Elliott:"Can I ask the Zoning Administrator
the same question."
Chairman Sanchez:"Well,we're going to have the
opportunity."
Mr.Elliott:"Oh,the opportunity again?Okay."
Chairman Sanchez:"As soon as we're through with
Mr.Dunn,we are going to ask the staff to brief us,
that's all.If there's something you don't
understand in the briefing,then now's the time to
ask."
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE SEVENTEEN
Mr.Hoffman:"If it's all right,I would like to
ask the City Attorney,i f Bob's done?"
Mr.Dunn:"I'm always Dunn --okay,I guess I'm
done."(laughter)
Chairman Sanchez:"Wow...a...Board like that!"
Mr.Leffler:"We're done."
Chairman Sanchez:"So moving along at the request
of our Planning Director,we have Mr.Alexander to
speak to us.Mr.Alexander."
Mr.Alexander:"Thank you,Mr.Chairman.David
Alexander,...Apache Junction,Arizona.
Mr.Chairman,Board Members:this is a little
peculiar in that there is representation this
evening;i t is a contested matter,and generally
speaking,I am considered your legal advisor;in the
tested matter,I don't think that is appropriate,
and I have attempted in the last four working days
to arrange legal advice for you.I have found an
attorney for you,but he's not here this evening.
That gentleman's name is John Heston.Mr.Heston
can meet with you if you feel that i t is necessary
at a later date.Mr.Heston,of course,would have
to review the case,the exhibits,and the other
documentation and evidence that accompanies this
particular hearing before he would --could give you
any advice.
"I spoke with the attorney for the applicant a few
minutes before we got started,and though the Board
can adopt whatever methodology and procedure i t
desires,I would make the following recommendation
to the Board:that Mr.Coleman be allowed to give
his side of the story,so to speak,and then the
attorney for the applicant Mr.Beeman would like to
have the opportunity,if necessary,to ask questions
and then the Board ask questions of Mr.Coleman.
Then Mr.Beeman --and I see that there's more than
one of them,maybe lots of Beemans--may address you
(laughter) --only one,only one Mr.Beeman will
address and he may be subject to question,too,and
I assume,Paul,that I can ask questions of
Mr.Coleman,also,and Mr.Beeman,but I won't ask
questions of Mr.Blunt,who didn't give the argument
for his client at the end,perhaps the Board will
want to ask him some questions at the termination.
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE EIGHTEEN
"Now --Mr.Heston --I did not ask him about the 21st.
I asked him when his next available dates were:he
is available the 14th,16th and 18th,and if you
want him here on the 21st,I will try to get him
here on the 21st.If you decide subsequent to
hearing this case that you need some advice for
making the decision,I would recommend that any
motion you have would continue i t to --this
particular proceeding --to a date certain for the
purpose of decision and you've already,I believe,
if you use the 21st,you've already established the
21st as an Executive Session,and would give you the
opportunity to meet with Mr.Heston at that time.
"I don't know that --there may be members of the
audience that want to speak on this.Mr.Blunt and
I are not knowledgeable of anyone else that wanted
to speak besides Mr.Coleman,Mr.Beeman and Mr.
Blunt,but there may be members of the audience.I
do think in all fairness that Mr.Blunt should get
the last word,so i f there are members of the
audience, •perhaps the Board should consider calling
those individuals prior to Mr.Blunt summarizing.
Do you have any questions?"
Chairman Sanchez:"You don't know for sure whether
Mr.Heston will be available on the 21st?"
Mr.Alexander:"No,I never checked that date.I'm
sorry,I'll certainly try to find out."
Chairman Sanchez:"Well,other people won't be here
the 14th."
Mr.Alexander:"That brings up another point:my
recommendation would be that whatever the
composition of the Board is this evening,that is
the composition that should make the decision.I
don't think you should have some additional votes
coming in here,trying to make a decision,even
though they would have opportunity to listen to
tapes and look at exhibits,they wouldn't have the
liberty to look everyone in the eye,to judge their
credibility and all that sort of thing.But not..."
Chairman Sanchez:"I understand."
Mr.Alexander:"Okay.Any other questions,Sir?"
Chairman Sanchez:"I have none.Does any of the
Board wish to ask Mr.Alexander anything?"
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE NINETEEN
Mr.Alexander:"Thank you.[motioning to front
table]May I sit here?"
Chairman Sanchez:"Thank you very much.Appreciate
it."
Mrs.Kelley:"Mr.Chairman,I believe we need to go
back and just reiterate what is stated here,that
happened on March 24,1989,so we know what
Mr.Beeman was cited for."
Chairman Sanchez:"Okay,we are --I would like to
first take into consideration the recommendation
made by Mr.Alexander in that there are two Board
members missing,and if we hear testimony tonight,
then the two Board members that are missing this
evening will not have the advantage of hearing.
Although they may read the text of the matter at
hand this evening,they will still not have the
first-hand knowledge of whether i t is spoken by
Mr.Coleman and the applicant,or those who may be
for or against this application.And if we wish to
take the recommendation by Mr.Alexander into
consideration,this would be the time to do so,
before we hear any further questions.If you wish
to continue this so that the other two Board members
who are now absent have an opportunity to attend,
then this would be the time to make the motion to
continue the hearing.Because i f the other two
members are back in town and show up for whatever
time you postpone i t to,it might be in their
advantage."
Mr.Elliott:"Mr.Chairman,I think unless those
members not present tonight are dismissed from the
Board,that they have just as equal right to vote on
this matter as I do."
Chairman Sanchez:"Well,that's true,but what
we're going to consider is their ability to
understand everything that is going on."
Mr.Elliott:"I don't think we can discuss that."
Chairman Sanchez:"Well,I think we should discuss
i t because it would not be fair to the applicant --to
have two people voting on something they haven't
really heard.Now if you wish to hear i t tonight,
then that's up to you.That's --I'm just --Mr.
Alexander made a recommendation and I think we
should take that recommendation into consideration.
If you do not wish to,then we will continue to hear
it."
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE TWENTY
Mr.Hoffman:"Mr.Chairman,I believe,and I've
asked Mr.Alexander to clarify i f I'm incorrect --I
believe his comment had to do ultimately with the
Board's --the ability of the Board to sustain a
challenge to its decision i f in fact some folks make
a decision on this case who weren't present for the
testimony.Is that...?
Mr.Alexander:"Yes."
Chairman Sanchez:"That's correct;that's why I'm
giving the Board the opportunity now is to have
those members present before we receive testimony."
Mr.Hoffman:"I was directing my question to
Mr.Alexander."
Mr.Elliott:"I wasn't following you.You mean you
can sue these four,but you can't sue all the Board
if they're not here?"
Mr.Hoffman:"Somebody might be able to say 'How is
i t that the Board can make a decision --how is i t
that two of the folks weren't present for testimony
and yet they made a decision on a case?'And I
think that's the concern that Mr.Alexander was
expressing."
Mr.Elliott:"I don't know --I may be all wet on
this,but I just don't see how you can eliminate
those Board members from voting on any issue that
comes before this at any time."
Mr.Alexander:"Mr.Chairman,you're acting in a
quasi-judicial capacity this evening,and I would
ask you 'Would you like a jury to vote on your guilt
or innocence and have two people brought in after
the case was over to conduct that realm?'And
that's essentially what position some of us are
taking this evening,and I would find that highly
irregular.I believe in Mr.Blunt i f he wants to
have two people voting on proceeding and then we can
hear the evidence,but I think that your concern is
well placed.If you want seven folks to hear the
case and decide the case,then seven people should
hear the entire case.You shouldn't be voting on
something you've never heard."
Chairman Sanchez:"Mr.Alexander,I'm in complete
agreement with you.I would not personally care to
have 'jurors'(so to speak)decide my fate on
something they had not heard.And that's what I'm
asking the Board to consider this evening."
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE TWENTY-ONE
Mr.Leffler:"Mr.Chairman,I seem to have a
question on my mind as to what possible chance the
Board has of resolving this particular thing,as
I've spent about three to four days on this,ever
since I received the packet,and I've checked with
Pinal County and a few other places.I've read i t
backwards,forwards and sideways,and i t looks like
the old proverbial joke 'You just can't get there
from here.'There are too many ambiguities,too
many undefined definitions,and too many blind
corners and suppositions,and what I'm afraid is,
they're all backed into a corner in this situation,
and unless I can be convinced differently,there's
no particular reference to pick a point between
'storage of vehicles,'storage for sale vehicles,'
or storage for,per se,just parking.There's a
definition I haven't seen resolved.If we pick a
particular point and say that i t has to be in a
building,we've got some other problems that we
would entertain [Chairman Sanchez started to
interrupt],and I feel as though ---now,may I
finish? --I feel that the Board should resolve
itself..."
Chairman Sanchez:"I'm going to have to ask you --
I'm going to have ask you,now let's hold ourselves
in a professional manner.(Mr.Leffler:"Uh-huh.")
"Now,we're getting ahead of ourselves,and we're
getting people upset;I mean,the applicant is
getting upset because you're making the decision
now."
Mr.Leffler:"I haven't made a decision,but
I'm...points."
Chairman Sanchez:"Let's keep this thing in order,
and let's keep ourselves in order."(Mr.Leffler:
"Uh-huh.")
A.Paul Blunt:"Mr.Chairman."
Chairman Sanchez:"Mr.Blunt,I'm going to have to
ask you to sit down because we will get to you in a
moment --if,you know --maybe.It's---"
Mr.Blunt:"I just wanted to address the Board on a
member --on a matter dealing with a jurisdiction and
ask the permission of the Board to speak to i t out
of order is my request --on the issue since i t seems
to deal with the applicant,and I would just offer a
suggestion to the Board that might aid this --speed
this matter along.I don't wish to make any comment
on the merits of the matter before the Board."
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE TWENTY-TWO
Chairman Sanchez:"Okay,go ahead,sir."
Mr.Blunt:"I find myself on the horns of a dilemma
because I can agree with both positions I've heard
tonight.On the one hand,I agree with
Mr.Alexander's observation that one should not
trust a jury or an inquiry jury to hear evidence,
then vote as a complete jury on any matter.At the
same time,I also agree with Board Member Elliott's
comment that it's --I don't know of any way one could
prevent from not voting i f they were in attendance
at the time the vote was taken,notwithstanding
whether they listened to the evidence or not.
Although I would prefer to have the same people who
hear the evidence vote on it,I would also prefer to
hear this matter this evening.And as a result,
rather than postpone it,I would ask that this Board
go ahead with this hearing and proceed along as i t
has intended to,this evening.We would offer no
objection to that,and that if at the time this
meeting is --the vote on this is held,i f i t is not
held tonight,that those members who are present
then that are not present tonight,be asked (only
asked)to abstain from voting on the grounds that
they have not heard all the evidence.I f they
choose to do so,that would be in their own
prerogative;i f they choose not to,again,I think
that is something that we as the applicant would
have to bear the risk of.And with that in mind --
I'd rather have i t that way than the other way,
frankly.I'd rather not come here tonight,then
come back another time.That's all."
Chairman Sanchez:"Thank you,Mr.Blunt,and
certainly,I understand your concern.I'm going to
ask the Board at this time to consider postponing
this hearing to a time and place specific,which has
already been fairly well established as August 21 at
7:00 p.m.in these chambers,in order to allow the
two members not present at this time to be able to
hear the entire testimony of both the Zoning
Administrator and the applicant and those in the
audience who may be for or against the particular
application.I'll ask the Board at this time to
give me a motion to continue or state that they wish
to continue this hearing this evening."
Board Members Kelley/Wilson -M/S
"Mr.Chairman,I move that we continue hearing this
matter this evening."
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE TWENTY-THREE
Chairman Sanchez:"Okay,do we have a second?"
Mr.Wilson:"I second the motion."
Chairman Sanchez:"Okay,then we'll have to ask for
a so-called roll call."
Mrs.Pruitt:"Mrs.Kelley...."
Mr.Elliott:"Is there any discussion?"
Chairman Sanchez:"Yes,I thought we had done
that."
Mr.Elliott:"Could I have the motion stated
again?"
Chairman Sanchez:"She wishes to continue this
hearing this evening --with those present at this
time,and this has been seconded.Any further
discussion?"
Mr.Hoffman:"Sir,did you use the --was the word
'continue'used in the motion?"
Chairman Sanchez:"Well,to proceed."
Mr.Hoffman:"We don't need a motion to proceed
(Chairman Sanchez:"Right --no,we don't.")"If you
use the word 'continue',i t has a legal meaning that
we don't want to get stuck with."
Chairman Sanchez:"Everyone feels that we should
proceed?[Some unintelligible comments were made by
Board members.]Okay,we're still on staff's
meeting;we'll ask our Zoning Administrator to give
us his version --interpretation."
Mr.Coleman:"Mr.Chairman and members of the
Board,to begin this,if you don't have any
objections,what I would like to do is to take kind
of a little piece at a time so that....The Zoning
Administrator sent a letter to the Beemans with the
allegation that storage of certain materials was
taking place.There ensued a series of letters
regarding what and couldn't be --what could be sold
at retail and a series of other things,and what I
want to be sure,and as Mr.Dunn noted in his
preliminary outline,I want to be sure that I
understand what we're talking about:the storage of
material,are we talking about retail sales,or are
we talking about what may or may not be conducted in
a building?
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE TWENTY-FOUR
"Now,in particular,my letter,as I said,dealt
with the fact that we believe that storage is taking
place;we believe that the storage of the materials
that's there is first permitted to be stored in
zoning district CI -1.We believe that even the
section that has been cited by Mr.Beeman and his
attorney,in particular CB -2 in sub -paragraph C,
deals with rental,sale and display and does not
address the question at all,of outdoor storage
being permitted.So before we start a particularly
boring defense of the ordinance,I would like to be
sure that I'm on the right issue,so if Mr.Blunt
would be so kind as to tell us which,then we can
proceed.It's our position,incidentally,since
we're going to commence this,it's our position that
the ordinance is clear --zoning district CI -1
addresses the issue of wholesale warehousing and
storage and i t is not addressed in zoning district
C-2."
Chairman Sanchez:"Any questions by the Board of
Mr.Coleman?(Well,we had a lot of them a while
ago.)"
Mr.Blunt:"Mr.Chairman,may I inquire of
Mr.Coleman as to whether he's yielding the floor
and terminating his remarks or simply requesting me
to respond to his---?"
Chairman Sanchez:"Well,I'll make that decision
right now,Mr.Blunt,thank you.Right now,I think
I have asked the Board i f they have any questions of
Mr.Coleman,then I will get to the rest of our
proceedings.Okay,we --we still have a lot of
questions--"
Mr.Leffler:"I think that I would like to ask
Mr.Coleman a couple of questions i f I may."
Chairman Sanchez:"Okay,sure."
Mr.Leffler:"I can understand some of your
interpretations of CB -2 from CB -1,but I don't see a
specific outline;I also have read ahead and the
CB -series has no connection with the C -series that I
can put in because the C -series goes on and the
titleing of i t is in 'neighborhood areas'in the
first section of it,then i t goes on into 'heavy
industrial'particular things,so where do you get
your overview,other than it's less restrictive that
CB -1 and CB -2?"
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE TWENTY-FIVE
Mr.Coleman:"Section 16.0201 of the Zoning
Ordinance describes uses that are permitted,and i t
tells us any use that is permitted in Section
15.0701 (if you go back and review Section 15.0701,
that is zoning district TR,which is defined as a
'transitional zoning district').What is probably
more pertinent to this issue is i t says that any use
permitted in Section 16.0101 --Section 16.0101 is the
section which describes the uses permitted in zoning
district CB -1;i t also identifies any use permitted
in Section 15.0701,zoning district TR,in
subsection A.In subsection B,i t says 'the
following uses which in any CB -1 zone shall be
conducted wholly within a completely enclosed
building,unless otherwise specified,and any use
operating as a store,shop or business shall be a
retail establishment,and all products produced on
the premises shall be sold at retail on the
premise.'So they're telling you in zoning district
CB -1 that the use in zoning district CB -1 is a
retail sales use --that's what they're telling you.
"You turn over to zoning district CB -2,the uses
that are permitted in subparagraph B --I'm sorry,in
subparagraph A,is collective,the section that we
just read,which says that 'all uses will be
conducted wholly within a building,'and i t says
that 'retail business'or 'sales business shall be
retail',so that's collective --that's collective in
zoning district C-2 [CB -2 ?]."
Mr.Leffler:"That is one way of looking at it,but
in the same thing in one of your letters that I read
here,you're condoning an outdoor sales area,and
it's dated January 6th,of certain items,and then
you negate i t in the same breath on the next page --
the next section on the rebuttal,and i t seems to be
a matter of description of storage and for sale.I
can't quite reconcile i t because you negate the same
thing you approve."
Mr.Coleman:"I'm not sure that I understand what
you're saying,except I do understand that there is
a problem associated with something that sits for
sale and there --an identifying distinction between
that and something which is in fact being stored.
"And the reason why I began this discussion by
asking Mr.Blunt and the Beemans is their letter or
when they filled out the application,they had
indicated that in addition to their retail sales,
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE TWENTY-SIX
they discussed the keeping,and I'm simply asking
'At what level are we going to conduct this
discussion?'Is i t a case of 'we're going to talk
about whether these things can be stored'?(And we
can certainly talk about what's the distinction
between being stored and being stored for sale and
simply being stored.)I would call your attention
to the fact that as was pointed out by Mr.Dunn in
his original presentation,this property has been
rezoned;we're actually dealing with one owner;
we're dealing with two parcels,and we're dealing
with different uses permitted on each of those
parcels.So essentially what we have is an area
which has been developed in accordance with a plan
approved by the City Council,constructed as such,
to conduct a particular type of business.Frankly,
the overt appearances of that business has spilled
over onto an otherwise vacant parcel of land,which
has no buildings,no structures,no driveways,no
nothing,and appears to be some sort of ancillary
use to the site that has been developed in
accordance with the appropriate plan.That's why we
need to know --I need to know,the same as you need
to know,what are we talking about,and i f
Mr.Beeman or Mr.Blunt wish to tell us that this
material is for sale and we want to discuss this
conversation at a 'for sale'level as opposed to a
'storage'level,I have no objections.But I simply
don't want to spend 15 minutes generating a case to
find out that we're not talking about the same
thing."
Mr.Leffler:"Well,this is what confuses me;
there's three definitions here that have to be
brought out,I think,before i t can even be
considered.Apologies to the Chairman for I guess
being outspoken,but the first is 'What's the
definition of "storage"?'What's the definition of
"storage for sale"?'and 'What's the definition of
"temporary parking for usage at a later date"?'"
Mr.Coleman:"Some of the materials down there,to
give you an example,there are what appear to be
water storage tanks,which certainly would tend to
be consistent with Mr.Beeman's business.There is
also a mobile home down there.That doesn't appear
to be consistent.We would not issue a permit for
i t to be put together and used as an office.I t
doesn't appear that they're going to put i t together
and live in it.There's no particular indication of
the nature of the business as such that mobile home
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE TWENTY-SEVEN
sales is one of the operations to be conducted
there.The conclusion that I draw is that it's
probably being stored there.I'm not willing to
make that allegation,particularly in the presence
of people who can tell us.There's also an old
truck there;there's some truck beds;there's what
appears to be some of their well drilling equipment
or the back off one of their trucks or something;
frankly,I can't tell for sure exactly what i t is.
I agree that there is an issue here that is to be
decided."
Mr.Leffler:"Well,that's the point:until we get
some definitions established,I don't see how --
apologies to the rest of the Board --I don't see how
we can possibly know what we're doing."
Mr.Coleman:"That's one of the things that we can
establish:the distinction between storeroom and
selling."
Mr.Leffler:"I can see ambiguities;I can see lack
of definition,and I also see that the ordinances we
have here have been discarded by Pinal County
because they were unworkable,and they've adopted
new ones that went on past this point.
(Mr.Coleman:"That's...)"And these I assume have
been adopted from the old Pinal County Building
Codes."
Mr.Coleman:"This is the Pinal County Zoning
Ordinance as i t is written today,according to the
Pinal County folks --with the correction of what they
consider to be a couple of typos."
Mr.Leffler:"That isn't the story I got,but
perhaps the person I talked to didn't have any
better idea what was going on than some of us do.
But there's so many ambiguities that I've studied
and found in this,if you'll excuse the expression,
'you just can't get there from here.'"
Mr.Coleman:"I'm not sure what --that means."
Mr.Leffler:"Well,if we go into the hearing,
there's some things here that are very specifically
listed as being acceptable.It's only a question of
whether it's stored,parked or for resale."
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE TWENTY-EIGHT
Mr.Coleman:"Part of the position is going to be
that i f i t is as you noted --as you noted previously --
there are no provisions to attach certain kinds of
restrictions that have been proposed for the use
together with some screening.The screening comes
out of the zoning district CI -2 --I'm sorry--CI-1.
There is,however,in the rules for interpreting the
ordinance,i t does in fact tell you that when
certain uses are identified in certain districts,
they shall be considered to be prohibitions in any
district that is more restricted.So essentially,
what our argument is,that since this use in this
fashion is identified in zoning district CI -1,by
the very rules of the book,it must be a prohibition
in zoning district CB -2.(Mr.Leffler:"Could
that...")"Not only that,but CB -2 collects CB -1,
and that is the rules of zoning district CB -1,and
that's the crux of the case,and in addition,that
same rule together with the argument that there are
no provisions for storage per se in zoning district
CB -2 would say that i f the issue is storage,then
our position is there are no provisions for storage
in zoning district CB -2.I f the argument is that
it's a retail sale,then it's our position that the
retail sale must be conducted in accordance with the
rules of the book,and the rules of the book say,
talk about being behind --you know --being within a
building and a series of other things.As you have
pointed out,there are in fact exceptions,and those
exceptions will have to be dealt with obviously,in
the course of this hearing."
Mr.Elliott:"Did you just say there was no
provisions for storage in CB -2?"
Mr.Coleman:"In general,the answer to that is no,
but obviously,you can't have any retail sales
unless you're going to haul them in one at a time.
I f I sell books,plainly I have to have at least
two,so in that sense,yes,there's storage,but in
general,i t tells you i t is intended to be a
business district retail sales,and that's the
function."
Mr.Leffler:"That's the only thing I agree with
you on as being predominant throughout the whole
thing,is that the business CB -series is for retail
sales,and/or to the ultimate customer,a service.
That's the only thing that is consistent in the CBs,
and when you get into the tail -end of it,then i t
goes into manufacturing again.But it's only
manufacturing or repair to a retail customer;
there's no wholesale,except in one particular
instance."
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE TWENTY-NINE
Mr.Coleman:"By and large,i t is designed to be a
retail sales district --retail sales dealing with an
end consumer;that's correct."
Mr.Leffler:"So there is one consistency that's
true,but then we get into the other where
definitions are going to play a crucial point in i t
in being able to make any kind of a decision."
Mr.Coleman:"The definitions per se --there are
some in the ordinances you correct.I doubt
seriously that every definition you want to find is
in the ordinance.We're told that where inadequate
definitions are provided,it's sufficient to ..."
Mr.Leffler:"Yes,i t does come out and says in one
of the letters from Ms.Whitten,that if there's any
question about definition,that you use a certain
series of Webster,and that even makes it more
confusing --I looked."
Mr.Coleman:"As Mr.Dunn pointed out in his
opening remarks,the function of this Board is to
determine essentially which argument will prevail,
if either argument will prevail --if you don't like
either,then you can determine whatever interpre-
tation you believe the ordinance gives you."
Mr.Leffler:"And yet,we're not allowed to rewrite
the ordinance."
Mr.Elliott:"May I refer to a specific page in --on
page 92 in the code?Is your book number the same
as mine?I assume i t is.This is CB -2,'Sales,
rental,display',under C,'Sales,rental,display
machinery,commercial and industrial'.Now where am
I missing the boat?I don't understand this."
Mr.Coleman:"As we said,the initial thing that we
wanted to try to resolve:i t says 'the sale,the
rental,or the displays."
Mr.Elliott:"You've got to include storage."
Mr.Coleman:"Well,I would suggest that if you
carry (Mr.Elliott:"Doesn't it?")"this over to
zoning district CI -1,and again I presume that yours
is numbered the same..."
Mr.Elliott:"Are you saying it's collective?"
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE THIRTY
Mr.Coleman:"I'm not saying it's totally
collective --no,I'm saying,however,if you come
over to CI -1,you will see that i t does in fact..."
Mr.Elliott:"What page,please,sir?"
Mr.Coleman:"The commencement of Section CI -1 is
on page 115."
Mr.Elliott:"I'm sorry --I don't even have a
page 115 (Mr.Leffler:"Yes,i t is.")"Oh yes --I'm
sorry.Excuse me."
Mr.Coleman:"You see that i t collects zoning
district 16.0101b,16.0201b;that's CB -1,CB -2;
16.0201c;paragraph just picked up on it,and you
see under paragraph C --you can do any of the
following i f it's conducted wholly within a
completely enclosed building?"
Mr.Elliott:"What page is that?"
Mr.Leffler:"Oh,it's on 115."(Mr.Elliott:
"115?")"...you can see right here.But that's a
complete new restriction from CB -2.That's more
restrictive than CB -2 according to this,or it's a
new restriction placed on these additional things as
I see it."
Mr.Coleman:"Well,as I said,if you turn back to
page 3,paragraph g.(Mr.Elliott:"Paragraph g.")
"'The express enumeration and authorization herein
of a particular class of building,structure,
premises,or use in a zone shall be deemed a
prohibition of such building,structure,premises or
use in all other zones or more restrictive
classification.'So if you got to do your business
inside a building in zoning district CI -1,since
CB -2 is more restrictive,you have to do i t in a
building in zoning district CB -2."
Mr.Leffler:"That's very interesting."
Mr.Coleman:"The argument,incidentally,...as long
as it's technical,I don't personally believe it's
particularly difficult.It was not my intent to
present i t in quite this fashion.I frankly had
hoped to be a bit more succinct."
Chairman Sanchez:"Okay,do we have any further
questions of Mr.Coleman by the members?"
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE THIRTY-ONE
Mrs.Kelley:"The only question I have is on CB -1 --
when it's pulled back into the CB -2,in the very
first phrase i t says 'The following uses which in
any CB -1 zone shall be conducted wholly within a
completely enclosed building,unless otherwise
specified...(Mr.Coleman:"Right.")"When the
original permit was given,he was sitting with a
CB -2 zoning."
Mr.Coleman:"Yes.Within --as Mr.Dunn pointed out
in the original remarks,this property was rezoned
from GR in its entirety to zoning district CB -2 --
CB -2,I'm not sure what I said,but to zoning
district CB -2.At the time the Beemans wanted to
develop it,they wanted to develop it with their
well -drilling business and they wanted to be able to
have their pipe casings and what -not outside.We
told them that outside storage was not a permitted
use in zoning district CB -2,precisely the issue
that you're hearing tonight.And to that end,they --
we pointed out to them they could rezone to zoning
district C-4,under the provisions of the ordinance,
and do what they wanted to do.They rezoned the
site where the building is and where the wall is,
which is this site right here [pointed to location
on projection]and was rezoned to C-4,specifically
for the uses that we're talking about,right now.
The remainder of the site is zoned CB -2;the
remainder of the site is what's at issue.The
remainder of the site was fenced and what's out
there now is,along the front,along the street,
there is a series of tanks --I'm sure they're water
tanks that are associated with their well -drilling
business.At the rear of the property is a mobile
home,a truck,some miscellaneous and assorted
stuff,which is --and Ken,as I said,this site is
not developed;there are no structures on it except
the fence.The business is operated out of here
[again pointed to location],so the permit that we
issued --other than the permit for the fence --the
permit that we issued was for a different site,with
a different zoning classification,that we agree has
been developed in accordance with the approved site
plan created at the time of rezoning.The issue is
the vacant CB -2 and how it's being used."
Mrs.Kelley:"I agree,but when they applied for
that,didn't they originally and initially apply for
C-4 for the entire piece?"
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE THIRTY-TWO
Mr.Coleman:"Yes,they did.And as Mr.Dunn told
you,at the time the application for the rezoning
came about,there were protests.There were
sufficient protests to force a three -fourths
majority vote on the Council.At that time the
Beemans elected to withdraw the application to
rezone the entire site,and they set the limits of
the rezoning such that the only folks who could file
a formal petition against the rezoning was
themselves,and obviously,they didn't object to
their own rezoning.That's the reason why this site
is separate from the remainder of it."
Mrs.Kelley:"Let me just ask you one other thing:
now,when you issued that permit,when the C-2--CB-2
remained,what were they allowed to do?I mean,we
all know their business.We all know what business
they are in.What were they told they could do with
that CB -2 zoning?"
Mr.Coleman:"Anything permitted in zoning district
CB -2.In general,i f I may --and I may not be
understanding your question properly,and i f that's
so,please restate it --if you're asking 'What were
they told that they could do with this C[B]-2 at the
time of rezoning?'I don't know that any specific
discussion took place,but obviously,one of the
things is anything permitted in CB -2."
Mrs.Kelley:"Okay.But that states 'sale,rental
or display of contractor's equipment or supplies.'"
Mr.Coleman:"And I don't believe that there would
be any disagreement at this time that the
contractor's equipment that is there --the equipment --
is not for sale,rental or display.Now,again,are
we talking about the water tanks?And I'm trying to
draw a distinction to a certain extent but only
change the form of the argument --the distinction to
some extent between what happens when you
store....belongs in zoning district CI -1 and what
happens when you sell.As far as their equipment
per se,I suppose anyone could sell anything.I'm
not sure that's the actual function for CB -2
property."
Mr.Wilson:"Mr.Coleman,in the Beemans'letter
dated January 4th,when they did petition for a
fenced yard,you know,they state the uses would be
'boat storage...and RV storage and rental,'and 'the
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE THIRTY-THREE
display and sale of commercial and industrial
machinery,contractors equipment,automobiles and
trailers,'the reply from the City stated that they
could fence their yard and it would permit the
following 'proposed uses as stated in the afore-
mentioned letter,'and then they only mention the
three:'boat storage and rental,RV storage and
rental,and the sale of automobiles and trailers,
including mobile homes'but there was no mention
that there was commercial and industrial machinery,
which has been...for sale as being stored out there
right now.Is that correct?"
Mr.Coleman:"Yes.Basically,I think that's
correct."
Mr.Wilson:"Because I know,even in this
paragraph,i t says the CB zoning would not permit
the following uses,and that's contractors equipment
and the storage of commercial and industrial
machinery."
Mr.Coleman:"And that's the letter --the intent of
the letter,is to draw exactly distinction between
the retail sales,which is plainly permitted,
storage,which our position is i t is not permitted,
and I repeat,our letter said --dealt with the
storage (Mr.Wilson:"So this is...")"not so the
retail sales or display."
Mr.Wilson:"So basically,still in the CB -2
zoning,according to this letter,I notice that you
do make the stipulation that they were permitted to
do that --that according to still in the CB -2 zoning,
that they are required to have the commercial and
industrial machinery still enclosed in a building.
Is that correct?"
Mr.Coleman:"There are some uses --there are some
uses that have traditionally been outside;they've
always been outside.They were outside in Pinal
County;they were outside in my predecessor;there
are other uses that have always been inside.For
example,automobile sales have always been outside.
They were outside in Pinal County,which is where we
got our ordinance basically from;they have been
outside since I got here,and prior to my getting
here.Now,we've never made an issue over whether
you could or couldn't have retail sales of auto-
mobiles.Essentially,what our position would be
with regard to this would is that we don't want to
see an expansion of anything else that isn't
identified,and so what you essentially would see
here is an argument that,under a logical
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE THIRTY-FOUR
progression,would deal first of all with what's
going on down there?Is i t rental,sales and
display,or is i t storage?For example,how do you
explain the mobile home?And there may be an
explanation.Secondly,what are the conditions
under which the rental,sale and display can take
place?And that would center around what is
presumably reasonable that has been done...previous
interpretation of the ordinance,and what new
interpretations do you wish to place?One of the
issues pending upon what the outcome of this is,
quite frankly,and the direction that i t takes,will
be,depending upon how broadly the Board views this
case,depending upon how broadly i t finds.., its
conclusion,i t could presumably find that the retail
sales of anything is permitted outside of the
rental,sales display is --anything is permitted
outside,and in essence,that sales and any use in
zoning district CB -2 is permitted outside.Now the
peculiar consequence,of course,is that you have to
deal with what's required in zoning district CI -1,
and its application to a lesser district."
Mr.Wilson:"I noted on the March 24th letter,they
were cited for commercial and industrial machinery
being outside of this storage area,and that's why
my questions were pertaining to that."
Mr.Coleman:"And precisely the reason why I tried
to draw some distinctions is at this point,there's
a certain amount of exploratory stuff.For example,
the Beemans rezoned property and built a fence for
the purposes of putting most of their equipment and
what -not behind,which kind of makes me wonder why a
lot of the things are out there,i f in fact that's
the normal storage for their stuff is inside the
zoning district C-4 behind the wall they built,but
since the whole story hasn't come out,and what we
are trying to do now is create this argument with
some degree of consistency,if you will sort of by
questioning and answering,it's not come out
necessarily pure and clean,and I'm making some
assumptions and making some allegations that need to
be responded to."
Mr.Leffler:"I have just one little question that
you seem to have brought out in me:have you ever
gone down and ask them what the hell they're doing?"
Mr.Coleman:"Fundamentally,we know what they're
doing."
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE THIRTY-FIVE
Mr.Leffler:"No,I mean serious face-to-face.
Have you done it --I mean,just ask them what the
purpose of i t is,as a personal thing,one to
another?I mean,i t assumes that you're writing
letters back and forth;you say you don't know
what's going on there;have you ever gone down and
ask them what's going on?"
Mr.Coleman:"We have sat down and had meetings
with their attorney and I --we discussed this matter
with Mr.Beeman when he came in to get a permit;he
wrote us a letter;we wrote him a letter back.We
not only have talked to him;we have written
letters;we have talked to his attorney.If you're
asking have we at each step gone down and discussed
this matter with any degree of...the answer to that
question is 'no,'we haven't."
Mr.Leffler:"Well,i t just seems so simple to do,
is to go down and say 'Hey,Beeman,what's going
on?'and you say,'Can I get away with this?'and
you say,'yes'or 'no.'I t just seems so damm
simple,and here we're going through attorneys and
meetings and everything else,and you say ' I don't
know what's going on there.'"
Mr.Coleman:"When I say I don't know what's going
on,I wrote them a letter and I told them what I
think is going on (Mr.Leffler:"I have a copy of
it.")"and the purpose of that letter is to lay out --
we cannot go through any procedure unless we are
willing to make certain kinds of allegations;we
have made those allegations.We have discussed
those allegations.I t is my understanding now that
we have gotten to the point where Mr.Blunt believes
that there is a different interpretation to be
applied to the ordinance other than the one that we
have given."
Mr.Leffler:"I can see both sides,but that's
beside the point.I was just curious to see if you
actually --you said you didn't know what was going on
down there --if you could walk in and say 'What's
this crap over the phone here?'or whatever.That
would have simplified things up to the point of
being unbewildered,that's...."
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE THIRTY-SIX
Mr.Coleman:"Well,let me simply make a point.
You know,when you're charged with a responsibility
of the interpretation and the enforcement of the
ordinance,then the 'why -I -agree'conversation is
certainly not out of the question,ultimately a
decision has to be made.Somebody has to make a
decision.That decision has to be based on,number
one,what the ordinance says;number two,what we
believe is in the best interests of the city.
That's the interpretation that we made,and that's
the evauation that we made.I f the honorable
opposition believes that that's an incorrect
interpretation,then that's what we're here to talk
about."
(Some words missed;side 3 of tapes begin.Minutes
continue on Page 37.)
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE THIRTY-SEVEN
Mr.Leffler:"...in the Ordinance,but I can also
see errors in your part because of no definite
clarifications,and rather than go through all this,
I thought perhaps some of this could have been
negotiated out without ever going before the Board
and putting i t into a quandry since --because I can
see i t coming.I quit."
Chairman Sanchez:"Mr.Elliott,do you have any
comment?"
Mr.Elliott:"What do you think this business --that
11 acres --would look like i f he just let him go
ahead and do what he wanted to do?What would
happen down there?"
Mr.Coleman:"In all honesty,I don't know.
Presumably more of the same.I don't know.I go by
today just to try to see what was still going on the
site and there is a sign up that says that it's for
sale."
Mr.Leffler:"What is that all about?"
Mr.Coleman:"You will have to ask them,but the
reason for making the remark is that I presume i f
they sell it,a year from today we could be looking
at an entirely different ballgame."
Mr.Elliott:"It has a fairly attractive appearance
today.I don't see even though,as you say,i t
might be in violation of---,it might be in
violation of the code."
Chairman Sanchez:"Okay.Is there any point of
discussion?Thank you,Mr.Coleman.At this time I
will ask the applicant to speak to the Board."
Mr.Blunt:"Thank you,Mr.Chairman.At this time
I would like to offer some questions by way of cross-
examination of Mr.Coleman."
Chairman Sanchez:"Please state your name and
address,please,for the record."
Mr.Blunt:"Mr.Chairman,thank you.My name is
Paul Blunt.I'm with the law firm of Brown and
Herrick.For the record,our address is 1745 South
Alma School Road in Mesa.I am here tonight
representing Bob Beeman,who is seated at the end of
this row,and his sons Todd,who is at the end of
the other row,and Bobby Beeman and their families
as the owners of the property which is before you
tonight.
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE THIRTY-EIGHT
"Mr.Chairman,i f I may,please,I would like to
direct a couple of questions to Mr.Coleman just to
clarify some points for my own...."
Chairman Sanchez:"Well,I think to be --at this
time,not to go into rebuttal before we state our
case.Why don't we just state our case and then we
can get into the rebuttal end of i t at the
appropriate time?"
Mr.Blunt:"Mr.Chairman,I think that in order for
me to appropriately set forth my case and to have
the full opportunity to confront and cross-examine
our witnesses that are against us and also in light
of the procedure which Mr.Alexander laid out to the
Board at the beginning of this particular matter,
that procedure would allow some cross-examination
for each party by the other party."
Chairman Sanchez:"It does,at the appropraite
time.Please state your case at this time."
Mr.Blunt:"Very well,Mr.Chairman.First of all,
Mr.Chairman,by way of opening remarks I introduced
the Beemans and the family.I'd like to also offer,
i f I might,this is not entirely topical,but I
think because of the lengthy discussions this Board
has engaged in prior to this particular agenda item,
I would like to offer my kudos to this Board for
what are some difficult subjects that you debated
fully here tonight.Although it may seem silly to
debate what looked like rather inane rules of
procedure,i t does keep the Attorney General happy,
and that keeps your city attorney happy,and so I'm
sure that is why you are doing it.
"Secondly,I do wish to clarify that neither the
applicant nor myself were upset at the debates which
took place before this Board.Quite the opposite --
we appreciate it.We felt that we were going to get
a full and fair hearing as a result of these events.
"There are a lot of difficult subjects that this
Board has to deal with,and that makes i t hard
enough,let alone a Board composed of several new
members,so we appreciate the difficulty that we
have encountered tonight.
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE THIRTY-NINE
"Now,the case at hand.Mr.Chairman,members of
the Board --no one here wrote this Zoning Ordinance.
Neither you,nor I ,nor Mr.Beeman,nor Mr.Coleman,
nor anyone else,but we are all here as a result of
it.We have to do the best that we can with what is
written in front of us and that's in fact what we
have to do.What I proposed in my prepared remarks
before you tonight is to give you first some guiding
principles of law by which this Board can try to
reach a decision;give you what I believe are the
specific facts of our case before you;and then give
you what I believe is a proposal that will resolve
this case by allowing the applicant to do as he
proposes without doing violence to your Zoning
Ordinance in any way,in keeping with many (if not
all)the concerns voiced by Mr.Coleman and also in
such a way as to allow this Board to use guidelines
that you can use in applying to other cases that may
come before you later with the same type of
scenario,because I suspect that even though this
may be a case of first impression before this Board,
it's the kind of thing that can arise,given the
rather broad categories of uses that are in all the
zoning...looked at here tonight.
"So with that in mind,first of all as far as some
rather broad points of law,as Mr.Alexander pointed
out at the beginning of this meeting,this Board is
in fact a quasi-judicial body and as such,must
apply the appropriate principles of law to reach its
conclusion.The issue here is whether a use falls
within a given category of zoning and that issue is
one of law,not of fact.The facts before you are
really very simple,and I'll get to those in a
moment.
"Zoning ordinances in general are a derivation of
the old common law property rights.The old common
law property rights were very simple:with certain
very limited exceptions that basically caused harm
to someone on another property,a person was allowed
to do anything they wanted with their own real
property.Zoning ordinances changed all of that,
but because they changed it,the courts have held
that any deviation,any ambiguity in the terms of an
ordinance is to be strictly construed in favor of
the property owner.There are many cases in Arizona
on that point.This is a new issue presented to
this city and not one of long-standing rule and
therefore,there is no long-standing interpretation
of this specific issue with which this Board can be
guided.
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE FORTY
"There are some broad principles that Mr.Coleman
has stated,but nothing that is specific to this
case.Where the zoning language is susceptible of
more than one meaning,the interpretation of that
language must be reasonable so that the zoning
ordinance will have a fair and sensible meaning.
Now that may sound like a very broad principle,but
in a moment I will try to demonstrate how that
applies to you.
"Moving now to the facts,I think that they are
basically undisputed.Those facts are these:
first,the property is zoned CB -2 --that's the zoning
district i t has to operate.Second,the proposed
use --and this is where I answer Mr.Coleman's
question that he offered earlier --the proposed use
to which we would put this property is two -fold:
first,the display,sale,or rental of contractor's
equipment and supplies.Second,the display,sale
or rental of commercial machinery,and we are not
even proposing the industrial type of machine,
although we also believe that will be allowed,but
we are proposing commercial machinery.
"CB -2 specifically allows contractor's equipment and
supplies to be sold,rented or displayed on CB -2
property.Now,I can't tell you where 'display'
leaves off and 'storage'begins.I'm sorry I'm not
clairvoyant,and I can't tell you where that rather
odd line may be drawn.I can tell you i t is not our
intention to store materials;i t is our intention to
display them for sale and not ever for rental really-
-unless you would,well,the equipment,I suppose
would be rented as part of the service provided.
The materials themselves --the water storage tanks
which will be placed either underground or wherever
they are placed --the other materials and supplies
will be used for well drilling and for pumping.The
pumps themselves,the commercial machinery such as
the company's pick-up trucks and the equipment that
is normally loaded on those pick-up trucks,and
similar incidental equipment --those are the kinds of
things which will be displayed in this lot.
"There are no regulations limiting the use of
machinery,equipment or supplies in the CB -2
district because they are found --that particular
allowed use --is found in subsection C.CB -2 allows
uses A through K.Our use is found in subsection
C.The requirement of a wholly enclosed building is
found in subsection A because that's the section
that says all the uses that were in CB -1 are carried
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE FORTY-ONE
forward into CB -2,and CB -1 listed several uses and
said these must be within a wholly enclosed
building.None of the uses we propose to you
tonight are within that CB -1 classification.
Subsection C is [an]entirely separate section and
does not list any requirements for the use of the
property listed in that subsection.This alone we
believe will allow the proposed use with no further
restrictions.That would be the end of the debate.
"The staff's confusion apparently is with the nearly
identical language --I admit to that;I can see there
is some very similar language located in the CI -1
zoning district found in your code.Specifically,
i t allows contractor's equipment sales yard and then
in parenthesis,only I think is what i t says.I t
does allow contractor's equipment sales yard,and i t
allows the rental of equipment commonly used by
contractors.Now listen to this just for a moment:
see i f I can put these two together for you so
you'll understand where I think real confusion can
arise.
"'Contractor's equipment sales yard."Display,
sale or rental of contractor's equipment and
supply.'They sound very similar to me.I submit
to you that they are very similar uses.The key is
in the phrase 'commonly used by contractors'because
really,in the CI -1 district,we're talking about
zoning --excuse me,industrial uses,industrial as
opposed to commercial.
"Typically,the commonly -known difference between
commercial and industrial is that commercial deals
with general public.You have a commercial
enterprise.You may deal with other businessmen,
but you typically deal with the public which would
include perhaps other businesses,but it's not
primarily aimed at other businesses,and i t does not
exclude the general public.Whereas industrial
typically is a business dealing with businesses:
either the manufacturing of a product;the providing
of a service as a support to another service;
mining --there's all kinds of examples we can all
think of for uses we all commonly think of
industrial uses,but those are not including the
sale of products or services to the general public.
That is what Mr.Beeman does;that is what his
business does;that is what he proposes,and that is
the ambiguity.
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE FORTY-TWO
"The difficulty with staff's position,that the
staff apparently has,is that there is an additional
restriction [in]CI -1,that this particular type of
use,this 'contractor's equipment sales yard only'
and 'rental of equipment commonly used by
contractors'must be within a 6 -foot fenced area.
Opaquely fenced,in other words,uniformly painted
board fence,close hedging or something that is
similar that's spelled out in the Ordinance.Their
argument is that this restriction should carry over
into the more restrictive CB -2 classification and
they rely on that first section that they pointed
out to you in your Zoning Ordinance,the general
provision that says what is allowed in one is
prohibited in a more restrictive.
"Mr.Chairman,members of the Board,this specific
must always govern over the general.While I agree
with that general proposition,the problem that we
have here is that that specifically allowed use in
CI -1 is also specifically allowed in CB -2,so here
we have a use that is completely allowed in CB -2.
We are not proposing to go beyond the scope of that
use.We want to do only what is allowed.That is
what we requested in our January letter;that is
what was forbidden to us in the Zoning Adminis-
trator's March letter,and that is what we are
protesting and appealing to you tonight.
"Now,in an attempt here's my position to you as to
how to resolve this.There are two ways that this
can be resolved.First,you can allow the proposed
use with no restrictions.Simply reverse the
decision of the Zoning Administrator.That is a
correct decision,and that would end this matter.
There is a second way to resolve it:allow the
proposed use,and reverse --in other words,reverse --
the Zoning Administrator in part but specify that
this is for commercial equipment and machinery and
that the same restrictions set out in the CI -1
district should apply in this particular instance
because of the identity of language,which would
mean that we would be required --and this is where
Board Member Leffler made a question early in this
proceeding;why were we being required to put fence
and hedges and so forth where it wasn't shown in the
CB -2 district?We are suggesting that would be one
way to do this because i t is required in CI -1.CB -2
is a more restrictive classification,and a fair
reading of this could require that additional
restriction in the ---zoning is where we are.
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE FORTY-THREE
"We're doing that in an attempt to be fair to your
ordinance;we believe you can just as easily leave
that restriction off.Personally,we would prefer
that you do i t that way,but we also believe that
requiring that would not do violence to your
ordinance;would be consistent with the general
applications that we pointed out to you earlier this
evening;would provide guidelines to additional
similar questions which would come before you,and
that guideline is simply this:where you have a
near identity of uses,i f there is any restriction
shown in the lesser restrictive zoning category,
that's going to carry over into the more restrictive
zoning category in the identical use.That's the
general rule that would be applied here;I think i t
is a fair rule.I think i t requires --it allows the
property to be used as it was allowed in CB -2;i t
does not place a wholly enclosed building
requirement on because it's not found in CB -1,and
that's the only place you can justify putting a
building around this property is i f i t comes out of
CB -1 and will allow the property owner to use his
property.
"I think Mr.Beeman has shown,and this Board has
even commented on the fact,that he has done a good
job with his property out there.He's got a nice
looking business;he's tried his best to always keep
i t looking that way;he's been here for over six
years --he's here to stay.His family has been
involved in the community.We would like to
continue to work well with the community,and this
is our effort to do that.I'll be happy to
entertain any questions from the Board at this
time.Thank you for your time."
Chairman Sanchez:"Do any members have any
questions they would like to ask of the applicant's
attorney?"
Mr.Leffler:"May I ask a question?Mr.Blunt,I
was sitting here --I remember seeing,excuse me for
the rest of you,I was sitting here --remembering up
in Heber the other day I saw a lot of equipment of
Mr.Beeman's;I don't know i f i t is the same
organization;I have to compliment him on the
neatness of his equipment that was not in the area
but out of a different district,I assume.The
question I have is 'Is there any estimate on the
time delay that this has been hanging fire of the
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE FORTY-FOUR
income that could have been generated --taxable
income --to provide some means of return to the
city?'Is there some kind of estimate of what's
been kept off the market,so to speak?"
Mr.Blunt:"Mr.Chairman,Board Member Leffler,no,
there isn't,and for a very good reason.We have
been allowed to do what we are doing now,pending
the outcome of this matter.In other words,the
staff and Mr.Beeman reached an agreement that no
enforcement action would be taken on the staff's
March 24 letter."
Mr.Leffler:"Well,that's in the by -laws --that's
in the thing here:the minute i t goes to appeal,
you continue on --if I read the thing right,when you
appeal to the Board until such time as they take
action,you're allowed to continue.Am I right?"
Mr.Blunt:"That is correct.Therefore,there has
been no loss of income and no loss of revenue to the
city."
Mr.Leffler:"I just wanted to ask that question."
Chairman Sanchez:"Any further questions?"
Mr.Elliott:"Yes,Mr.Chairman,I have two
questions."
Chairman Sanchez:"Mr.Elliott."
Mr.Elliott:"Could you deal with the question of
'collection'just a bit more for me,that is
restriction and not so restrictive?That is the
first question."
Mr.Blunt:"Mr.Chairman,Mr.Elliott,I'm not sure
I understand what you mean."
Mr.Elliott:"In other words,CB -2 is collecting a
lot of stuff in CB -1.The big deal of laymen --I
think I have a grasp of what it means,but I don't
know where i t comes from,where the general
concept...unless it's written on page 3."
Mr.Blunt:"Mr.Chairman,Mr.Elliott,I'll give
you my best shot,and it's an opinion.It's an
opinion I happen to believe that's my opinion.This
zoning ordinance is a type that is typically
referred to as a cumulative zoning ordinance.In
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE FORTY-FIVE
other words,when you go from one to the next to the
next,the uses tend to accumulate rather than having
completely separate uses in each separate category
which some zoning ordinances actually do.In other
words,in another city what's allowed in CB -1 would
be completely and totally prohibited in CB -2,and
only what is separately allowed in CB -2 would be
allowed in that district.
"In this city,this Zoning Ordinance --and frankly,
most zoning ordinances --are cumulative:what was
allowed in a lesser district or a more restrictive
category is also allowed in a less restrictive
category plus some other uses,and that's how you
get less restrictive because you keep allowing more
and more uses as you go farther through your code.
"Therefore,what we have in CB -2 is all the uses
that were allowed in CB -1,which is subsection A,
and then you go B throught K,which allows a whole
bunch of others.That's what we refer to,I think,
in Mr.Coleman's remarks by 'collecting'what is in
CB -1 or in CI -1 'collecting'what was in CB -1 and
CB -2,and so forth.I t picked all that up by saying
you can do anything in this zoning district in CI -1
that you could have done in CB -1,CB -2 and any other
district that is allowed,and in addition,you can
do all these other things.So,the other things
would not be 'collections'of prior districts.I t
would be separate uses independently allowed in that
zoning district.
"It is our position that i t is those independently
allowed uses that we are asking to do in CB -2
because they come out of subsection C,not A.And
that restriction of a wholly enclosed building is
not contained in subsection C,and we --those uses
were not collected from CB -1."
Mr.Elliott:"Another question.Is the property
for sale?"
Mr.Blunt:"I don't know.Is it?"
Mr.Elliott:"Is i t irrelevant?"
Mr.Blunt:"I suppose all things are for sale."
Todd Beeman:"We've had that property for three
years,and we've just been on i t a year.We worked
on i t two years before we ever moved on it,and we
were to understand that in CB -2,we could move right
on i t and start doing our business.That's why we
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE FORTY-SIX
put i t up for sale --when we started going through
all these problems,and we still don't have our
problems solved where we can run our business."
Mr.Blunt:"I guess the answer must be 'yes'."
Mr.Beeman:"That's the kind of zoning we were at.
We...machine and that was CB -2,and we were
perfectly legal there for three years,so we buy
this piece of property zoned CB -2,and now we can't
operate."
Mr.Leffler:"I don't think he gave the same answer
to the question I asked of you about the amount of
business he would have generated.I think he just
blew you out...."
Mr.Blunt:"Mr.Chairman,Mr.Leffler,I don't
agree.I think that what I was saying was that he's
allowed to do what he is doing,but he is having
these present difficulties with the city over it.
In other words,the city has told him he cannot do
this.That will cause him a loss of income and to
the extent that that in fact turns out to be the
case,he will certainly lose a lot of income because
he's not going to be able to display---"
Mr.Leffler:"Well,I have not seen any activity
other than just a few pieces of miscellaneous [?]
stuck out on there and no business being conducted
on that area,so I assume that it was out of action;
that the only operation he was doing was on the C-4
operation part,so I am assuming that that property
could have generated income,which is the question I
asked you:what would be the tax dollars or the
gross that could be taxed that could have been
generated i f they had been allowed to do what they
wanted to do?"
Mr.Blunt:"Mr.Chairman,Mr.Leffler,I have to
stand on my prior remarks.I really don't think
that he has decreased the use of his property from
what he --it was doing before all this began.Is
that correct?"
Mr.Beeman:"We could have been on that property
two years earlier doing business,and we doubled our
volume each year.We started off with one rig and
now we are trying to operate three rigs,and the
one -acre place we've got there,we can't expand no
more."
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE FORTY-SEVEN
Mr.Blunt:"What we are doing on the property right
now,Mr.Leffler,is that the larger pieces of
machinery,specifically the drilling rigs them-
selves,are housed within the fenced area on the C-4
property,and although one could argue,I suppose,
whether it's industrial or commercial,the point is
it's kept in a C-4 area,and nobody is arguing the
validity of that.The problem now is that the
materials and supplies cannot be kept in a C-4
area.It's our position that we're allowed to do
that under the current zoning of CB -2.I can't tell
you how much business they would have had had this
not come up.It would only be conjectural on our
part."
Mr.Leffler:"It goes back to definition again.
'Storage,'placement for resale,'or 'parking,'and
until we get those defined,I don't --can't see any
solution."
Mr.Blunt:"Mr.Chairman,Mr.Leffler.I think
there is a very clear solution,and that is that we
are here and proposing only to display for sale,not
to store.Now,where one leaves off and the other
starts,I can't tell you.I can tell you this --it's
not our intention to store something there ad
infinitum.It's there for a purpose.We would love
to get rid of i t the minute i t hits the lot.As
long as i t takes to do that,I suppose,is as long
as it will stay there,but i t is not there for
merely the purpose of storing i t there.I can't
define a term for you;it's not in the Ordinance.I
think the ambiguity under the law has to be resolved
in favor of Mr.Beeman."
Mrs.Kelley:"Mr.Blunt,specifically what are
those items displayed for sale?"
Mr.Blunt:"Mr.Chairman,Mrs.Kelley,I can tell
you what's there now,with the assistance of
Mr.Beeman.What I can't tell you is what may be on
there tomorrow or next week or next month.What we
are generally asking for,and again i f i t comes to
us I suppose we'll have to deal with it when i t
comes,but what we are proposing now,is
contractor's materials,equipment and supplies.
Those items which in the necessary and usual course
of business would be used in the Beeman Drilling
Company business.That would include,for example,
what is on there now;we know there are some water
storage tanks that are used in the business,there
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE FORTY-EIGHT
are some compressors that are used as part of the
well -drilling business and are used on properties;
and there are other types of equipment such as water
trucks that are on the property that are necessarily
used as part of the business.There are some pick-
up trucks that have equipment on them,that is,the
vehicles the men drive out and back in.The heavy
equipment is kept within the fenced area on a C-4
district,but we propose to use the material,the
contractor's equipment and supplies in a general
sense on that property,including what's there now
and if other equipment and supplies become
necessary,we put i t there."
Mr.Elliott:"These items that you have on display --
do they have price tags on them tonight?"
Mr.Beeman:"No."
Mr.Elliott:"So --then they are not on display for
sale."
Mr.Beeman:"Yeah,there's signs on them 'for sale'
but the price isn't on there."
Mr.Blunt:"Mr.Chairman,Mr.Elliott,not all
products that are displayed for sale are priced on
the product.In this case,I will tell you that
that lot is got access restricted so that people
can't get in there after business hours.I t is
preferable by this business that a member of the
business be with prospective customers to show the
equipment and supplies and tell them how they are
used and the price.That's part of the business.
So that's not an unusual circumstance.Apparently,
according to Mr.Beeman they are shown as 'for sale'
items,though."
Chairman Sanchez:"Any further questions of the
applicant?"
Mr.Elliott:"I have one final question,Mr.
Chairman.You offered two possible solutions to
this predicament.One of them would be for this
Board to vote in favor of the applicant's petition
and the second proposition which you stated,I would
like to have stated again,please,sir."
Mr.Blunt:"Thank you.Mr.Chairman,Mr.Elliott,
the second proposition is that the decision of the
Zoning Administrator is reversed in part and
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE FORTY-NINE
affirmed in part.I t is reversed insomuch as the
requirement of a wholly enclosed building is allowed
is a requirement.It would be affirmed insofar as
the fencing requirement of CI -1 would be required in
the CB -2 district.To the extent that Mr.Coleman's
belief is that those restrictions should carry over
into CB -2 and assuming that we do not disagree that
the uses that we are discussing here are the uses
that would require a fenced -in area in CI -1.Then
we would agree that that could be carried over to
CB -2 as a reasonable way to resolve this and to
create rules that you could apply to additional
applications that may come before you."
Mr.Elliott:"A masonry wall,evergreen,or a
cyclone fence?"
Mr.Blunt:"Either a masonry wall or a uniformly
painted board fence or the cyclone fence that's
there,provided that there be --I can't give you the
exact term that the artist uses --but there's some
planting hedges that are closely planted like
oleander bushes,or there are several other
varieties that grow up and block out that area.I t
has to be basically screened fencing --either opaque
or screened fencing,6 -feet high minimum.'Wholly
enclosed building or within an area enclosed on all
sides with a solid wall,compact evergreen hedge or
uniformly painted board fence.'We would propose
that we would put compact evergreen hedge around it,
such as oleanders or something like that if that's
acceptable.I f it's not,we can pick whatever is
acceptable."
Chairman Sanchez:"Okay,thank you,Mr.Blunt."
Mr.Leffler:"Mr.Chairman,I move we have a
recess."
Chairman Sanchez:"Okay if you wish to have a
recess,we will recess for 10 minutes."
[Meeting recessed at 9:12 p.m.and reconvened at
9:27 p.m.]
Chairman Sanchez:"Let's have order,please,and we
will continue with this hearing this evening."
"At this time,i f there is anyone present in the
audience who is in favor of the applicant,will you
please come forward?Okay,there is none.
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE FIFTY
"Is there anyone present who would like to speak in
opposition to the applicant?Okay,there also is
none.We will ask staff for their recommendation to
the Board."
Mr.Hoffman:"Two comments,sir.One,if you're
going to continue with the scenario that
Messrs.Alexander and Blunt outlined to you,you
might want to still...an opportunity for that;and
two,Planning Department does not have a recommen-
dation on outcome for you tonight.We are here --we
can assist you in making a motion,but we are not
advocating for the applicant or for the Zoning
Administrator,and I understand that...."
Chairman Sanchez:"We understand the Board has the
option to continue this until we can obtain legal
advice as to the interpretation of the Ordinance.
However,we must go through the procedures of our
session because the Board members chose to hear
everything this evening,and we're down to the point
of...if you do not wish to make a recommendation at
this time,we will go ahead and hear any rebut that
Mr.Coleman's staff or the applicant may have.
After that,then the Board will make a decision
whether they wish to vote tonight or wait until they
can obtain legal advice and make a decision after
that.The staff does not have a recommendation for
us at this time,so we will ask the staff i f they
wish to rebut anything they heard this evening
either by Mr.Dunn or Mr.Coleman."[Long pause,
then to Mr.Alexander:"You can say 'wait a minute'
or something;let me know what you are going to
do.")
Mr.Coleman:"Mr Chairman,members of the Board,
Mr.Blunt has told you that he defined verbiage in
zoning district CB -2 and that verbiage looks very
similar to verbiage that is found in zoning district
CI -1,and we won't disagree with that.As a matter
of fact,what we are going to do is ask you again to
go back and look at the intentions of zoning
districts CB -2 and CB -2 --it's outlined for you.
They tell you you can have 'contractor's equipment --
'sale,rental and dislay of.'If you want to store
contractor's equipment or rent it,presumably
renting i t over and over again,that operation
belongs in zoning district CI -1.While I agree both
of them are a case of having things that are sitting
there,the intent of the district is really quite
plan.In one case it's there to be for sale and in
one case it's there to be 'rented,sold,stored,'or
whatever else.So while we agree they look alike,
it's quite obvious that the intent is entirely
different.
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE FIFTY-ONE
"I would point out to you that Mr.Blunt pointed out
to you that the equipment that was in fact in zoning
district CB -2 was a water truck that Mr.Beeman uses
in his ordinary business operation;frankly,that
sounds to me like he is storing i t there.While
I'll acknowledge anything is for sale,it would
certainly tend to indicate that in fact the use of
this piece of equipment is for Mr.Beeman's business
and that he intends to store i t there.He told us
the same thing about some other trucks and some
equipment on the back which brings us back to the
decision of whether or not that is in fact for sale
or display,when in fact it's stored there and used
as part of his business.
"He indicated he would store essentially what was
there and the other stuff that went along with his
business,and certainly it would seem to me
appropriate if you're going to make a decison that
some sort of indication of what that is,would be in
order.I f he is talking about the casings and his
drilling rigs and the rest of the stuff,then we're
back to the same issue:that that's not an
appropriate use in zoning district CB -2.
"In relatively short terms,it would appear that
what we are doing here tonight is trying to permit
by a Board of Adjustment decision that which we
were --in fact,Mr.Blunt and his client were --unable
to do in an attempt to rezone the property before
the City Council and Planning and Zoning
Commission.And I --presumably,if you determine
that the Ordinance was improperly administered to
begin with,then that could also be an error on our
part,but I would point out to you that in fact,the
interpretation that you're dealing with tonight is
identically the same interpretation that...[we were
dealing with]at the time that the property was
rezoned,and the uses that you have been told about
so far on the property are precisely those uses that
were presented to the Planning and Zoning Commission
and to the Council at the time of rezoning for the
purpose of the support in an effort to rezone to a
district that would permit the use.
"Lastly,Mr.Blunt has presented several options for
your --several options from which you can choose.I
would simply point out to you that the options that
you choose,it's going to be necessary for you to
find that resolution some place in the Zoning
Ordinance.Mr.Blunt has given you an explanation
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE FIFTY-TWO
of how to interpret the Zoning Ordinance.In
essence what he has told you is that for some reason
there is accumulation in zoning district CB -1,
zoning district CB -2,that allows you to do those
things in subsection C with no regulations
whatsoever.
"That's a curious position indeed for several
reasons.One is that you can take the use as
permitted in zoning district CB -1,and you're going
to apply all the right rules and regulations in CB -1
and zoning district CB -2.I f that's the case,i t
certainly appears there's no reason to have a zoning
district CB -2.Conversely,you have a paragraph
that says whatever rules and regulations you apply
in one district assumes a prohibition in the other
districts.I f that's the case,then we have in
zoning district CI -1,the entire enumeration of uses
have to be conducted,the same enumerated uses that
you can do with no restrictions in zoning district
CB -2,if you put i t in zoning district CI -1,they
have to be in a building.CI -1 'collects'that
district and says you have to put i t in a building,
and then i t goes on to say there is another list of
things that you can do outside.
"So in essence,if you follow that line of logic,
you have restrictions until you get to zoning
district CB -2,sub -paragraph C,then there are no
regulations.Then you get to zoning district CI -1
and you reapply the rules again.Now there just
appears to me to be an innate error here somewhere.
We have in fact gone to the original authors of the
Ordinance,which was Final County;we have asked
them what their interpretation is.They have told
us in essence their interpretation is that which we
have also given.I don't want to get into much of a
discussion over whether Final County did a good job
or a bad job nor do I want to particularly discuss
what happened a hundred years ago or five years ago.
"The fact is we're dealing with an issue that is a
current issue;that issue is in fact at hand.We
are going to need to make a decision and in the
process of making that decision,the first thing we
are going to need to do is to look at the Ordinance,
find the authority in the Ordinance,and apply that
authority.The last thing i t appears to me that we
need to do is to make up a set of rules and
regulations about what you may and may not do
providing you do or don't build a wall or a fence.
The decision is,of course,a decision to be made by
the Board.But,I don't follow the rationale of
it."
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE FIFTY-THREE
Chairman Sanchez:"Thank you,Mr.Coleman."
Mr.Leffler:"Mr.Chairman,I would like to ask
Mr.Coleman a couple of questions,and so would
Mr.Elliott.On your letter of January 8,1989 --it
was put out,I assume under your direction.
Ms.Whitten signed i t as a Deputy Zoning Adminis-
trator of the Building Division,which is an error
right there because i t should have been from the
Zoning Department sub -titled,i f I'm not mistaken,
because she is not using a Building Department
function to inform this letter out.Am I correct?"
Mr.Coleman:"In the organization of the city,that
is a division;that's not a department."
Mr.Leffler:"Well,whatever division,i t should
have been coming out under the Zoning Department."
Mr.Coleman:"Zoning is not a department."
Mr.Leffler:"It's not?"
Mr.Coleman:"No."
Mr.Leffler:"A division?"
Mr.Coleman:"Say again?"
Mr.Leffler:"What is i t then?"
Mr.Coleman:"It's a division."
Mr.Leffler:"All right,i t should have come out of
the Zoning Division,then.Anyway,in i t i t states --
and I can't quite get i t through my head because i t
comes back to the definition,and perhaps you can
set i t straight --'Please be advised that a check of
the Zoning Ordinance...(and so forth)would permit
the following of your proposed uses as stated in the
aforementioned letter:boat storage and rental.'
Now this says they are allowed to do this:'RV
storage and rental'and 'the sale of automobiles and
trailers,including mobile homes.'Those were
allowed in this letter as being in the CB -2
situation."
Mr.Coleman:"They're also allowed in the Zoning
Ordinance."
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE FIFTY-FOUR
Mr.Leffler:"They're allowed in CB -2,according to
this letter."
Mr.Coleman:"And under the division of the
Ordinance...."
Mr.Leffler:"And then,'CB -2 zoning would not,
however,permit the following uses:the storage of
automobiles which are either currently licensed or
not moveable under their own power,'which is
understandable.I can go along with that,but then
i t says 'storage of mobile homes.'How can you have
a mobile home for sale i f i t isn't stored?Now
there is a definition that needs clarification in
there,if you allow i t one way,then come back and
say you can't --how can you do both?
"And then further here,i t says 'contractor's
equipment sales yard (only).'Now in here i t lists
'contractor's equipment.'Now a contractor could
possibly be a fellow who digs a ditch by a shovel,a
backhoe,or he could have the equipment they put out
here to dig the CAP canal.They're all contractors
according to their license.Now in the CB -2
ordinance here,i t says 'contractor equipment and
supplies.'What type of contractor i t states is not
in here.Conversely,he is a well -drilling
contractor and common usage says that that equipment
is never stored in a building;i t is stored outside.
"I can't [can ?]go on here:'storage of commercial
and industrial machinery' --yet,i t says it's allowed
to be for sale retail,and it's allowed to be used
as contractor's equipment and supplies,yet you
negate and come back and forth in the same letter,
and it's all because of one thing.What is the
definition of 'storage'and 'storage for sale'?And
until that is cleared up,there is no way that I can
possibly resolve anything in my mind as to where you
are coming from."
Mr.Coleman:"I will point out that the applicant,
I repeat,that the applicant has told you that the
equipment,whatever i t is is there,is his.He uses
i t for his business.He told us that.That's what
he just told us."
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE FIFTY-FIVE
Mr.Leffler:"Well,that's entirely within the
realm of his retail to the customer of his service
is equipment he uses to provide this service,isn't
it?And if you had a clear-cut definition,possibly
he would not have used the word 'storage'to you;he
would have said 'parking'or 'held for a period of
time for re -usage.'Now because of that one word
definition,the man has inadvertently given you
ammunition that creates i t and yet,right up here on
the top of it,i t says 'RV storage and rental,'
which you say can't be done."
Mr.Coleman:"Nope.As a matter of fact,I told
you zoning district CB -2...."
Mr.Leffler:"But i t says right here,sir --
Mr.Coleman,please --right in here,i t says 'please
be advised that a check in the Zoning Ordinance
reveals that CB -2 zoning as assigned'to your use,
'would permit the following'proposed uses as stated
from your department or division;in other words,
'boat storage and rental.'Storage' --right there
from your department."
Mr.Coleman:"I'm telling you,that is the way i t
is written in the Ordinance."
Mr.Leffler:"All right.'RV storage and rental.'"
Mr.Coleman:"Written in the Ordinance."
Mr.Leffler:"'RV'covers a whole bunch of things
including..."
Mr.Coleman:"I totally agree."
Mr.Leffler:"'The sale of automobiles,trailers,'
including...and then you come down and then you say,
you can't store it.Where is the logic?Until we
get a definition --you see what I mean?"
Mr.Coleman:"I suggested that the outside,the
zoning district CB -1 and 2 were retail sales
districts.That's what they tell me they're for.
They're not there for 'storage'.They're there for
the 'sale,rental and display'.If you want to
store your contractor's equipment,you store i t in
zoning district CI -1.What I am telling you is that
the man has stood here and told you that the major-
ity of the stuff that we're talking about is stuff
that he uses on a daily basis in his business."
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE FIFTY-SIX
Mr.Leffler:"Then it would be 'parking,'wouldn't
it?"
Mr.Coleman:"The zoning district talks about i t in
terms of storage..."
Mr.Leffler:"Sir,am I wrong?Am I wrong?"
Mr.Coleman:"And contractor's equipment."
Chairman Sanchez:"Gentlemen,order,please![taps
gavel]We are simply becoming argumentative here.
(Mr.Leffler:"I'm not trying to argue.")Now,
let's conduct ourselves in some kind of professional
manner."
Mr.Leffler:"Mr.Chairman,I have not done
anything--"
Chairman Sanchez:"Mr.Leffler,please!I am
speaking.Now,Mr.Coleman has made his decision.
He has told the applicant his decision.He has told
the Board of his decision.You're sitting there
making him try to change his decision right here.
He is not going to do it.This is our job.This is
what we're here.We're here to hear the details,
the testimony,the reason why --of which he has told
you many times.Now,we're sitting here just
becoming argumentative over the whold thing."
Mr.Leffler:"Mr.Chairman,I rise to a point of
order and advise you that part of the evidence that
I was conferring with him is presented to us for our
consideration,and until he can explain why he
contradicts himself in this,he hasn't answered my
questions,argumentative or not."
Chairman Sanchez:"Mr.Leffler,you have the
evidence in front of you."
Mr.Leffler:"I do,and i t contradicts itself."
Chairman Sanchez:"That's all i t takes.The
decision is going to be the Board's --not
Mr.Coleman's.The Board is going to make a
decision at the outcome of this hearing."
Mr.Leffler:"My point of order is that I asked
Mr.Coleman a question as to why he reversed
himself,and he has been hedge -hopping around and he
hasn't given me a definite answer why 'storage'in
one part and 'storage'in another,and one is
prohibited in the same sentence as the other out of
his own cover."
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE FIFTY-SEVEN
Chairman Sanchez:"Mr.Leffler,I am telling you
that he has already made his decision.He's not
going to change it."
Mr.Leffler:"I'm not asking for a decision;I'm
asking for a clarification."
Chairman Sanchez:"You're going to make a decision
as to whether he's all wet or not.That decision is
going to be yours and the Board's."
Mr.Leffler:"That's right.Unless I get a
clarification,I may be making a wrong decision.I
refuse to be put into that position."
Chairman Sanchez:"That's why some of us feel we
need to have an Executive Session and legal advice.
Then we can determine some of these things.But
being argumentative back and forth between ourselves
and staff and the applicant isn't going to
accomplish anything."
Mr.Leffler:"I disagree,sir.Mr.Chairman,I am
asking him to clarify his reversal of his own
letter.That's all I was doing.It's not argumen-
tative.He presented i t as evidence.It's the
letter [of]January 6,1989."
Mr.Elliott:"Mr.Chairman."
Chairman Sanchez:"Mr.Elliott."
Mr.Elliott:"I would suggest that if Mr.Coleman
could shed some light on this question,which I
happen to believe is a legitimate question for
clarification,that he be glad of that opportunity
to clarify a little further,at least for me,too.
I appreciate this position."
Chairman Sanchez:"Mr.Elliott,I have no objection
to Mr.Leffler asking for clarification of any
statement,but making statements argumentative I
will not allow.It's that simple.Now,if you want
clarification of it,you ask him for it,and i f he
answers you,let i t go."
Mr.Coleman:"Do you have a copy of the Zoning
Ordinance?"
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE FIFTY-EIGHT
Chairman Sanchez:"You have everything in front of
you --what else do you need?"
Mr.Leffler:"Pardon me?"
Mr.Coleman:"Page 90 of the Zoning Ordinance."
Mr.Leffler:"Yes."
Mr.Coleman:"Down under 'boats.'First of all,
let me note that this is Section 16.0201,'Uses
Permitted in Zoning District CB -2'under 'Boats,
Storage or Rental'.I did not write it.I don't
know why i t says that,but that's what i t says.So
I talk about 'storage and boats'in zoning district
CB -2.I'm telling you that the Ordinance says you
can store boats in zoning district CB -2.When I
tell you that you look through here,you won't find
the 'storage of contractor's equipment,'but if you
look under zoning district CI -1,Section 17.0101,
you will find that is one of the permitted uses:
'storage of contractor's equipment".So if you're
applying the same word,I agree.In one case the
Ordinance says you can do it.In one case the
Ordinance says you need another zoning district.
Why did they do that?I don't know (Mr.Leffler:
...92...")"but i t simply says that there is a
contradiction."
Mr.Elliott:"Now we're finally getting around to
it."
Mr.Leffler:"Also,if you'll allow me a moment,
Mr.Chairman,nowhere do I see in that ordinance
that i t says 'including mobile homes'."
Mr.Coleman:"Sale of mobile homes?"
Mr.Leffler:"Yes,sir.I t has 'trailers'but not
'mobile homes.'Where did that come from,i f I may
ask the question?"
Mr.Coleman:"We can have i t literally an all-night
discussion over trailers,mobile homes,manufactured
housing --those are definitions that the State of
Arizona makes up as well as the City of Apache
Junction.Bad distinctions.If you're asking me to
give you a definition of a trailer --is that what you
wanted?"
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE FIFTY-NINE
Mr.Leffler:"No,I'm just wondering why these
specifically said 'including mobile homes'and then
excluded i t in the storage of them,and i t doesn't
include the sale of mobile homes in CB -2."
Mr.Coleman:"Technically,i t doesn't identify --I
don't believe you'll find mobile homes in zoning
district CI -1 either.That's one of those things I
would suspect that,first of all,the identification
of a trailer is probably close enough to the identi-
fication of a mobile home since there is not a good
definition of either.Since i t isn't identified any
place else,you pick a zoning district that it's a
permitted use in,you can sell cars,you can sell
trailers,you can sell contractor's equipment;i t
would seem reasonable that you could sell a mobile
home."
Mr.Leffler:"Well,at the risk of Mr.Chairman
becoming irate again,the 'storage of mobile homes'
and the 'sale of mobile homes'negates one another
in your same letter,and I would just try to get
clarified as to what really..."
Mr.Coleman:"Let me ask you a question.Suppose I
had fifty trailers.I have a sign up that says
'This is Mickey Mouse Trailer Sales'and you drive
on the lot and there is a salesman there that says
'Would you like to buy a mobile home?',would you
call that a mobile home lot?"
Mr.Leffler:"If it's licensed,yes."
Mr.Coleman:"Okay,let's assume it's licensed.
Suppose you watch this same track of ground for
twenty-five years.There were the same fifty mobile
homes.There was never anybody there.You go down
and beat on the fence,and nobody comes.There's no
sign up,no indication they are for sale.How many
years have to pass before you can clue that they are
being stored there and not being sold?Is one
enough?Is 20?I don't know.That's part of the
issue that I believe that is before this Board."
Mr.Leffler:"We keep going around in circles back
to definitions again."
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE SIXTY
Mr.Coleman:"Let me carry this one step further.
Your remark was 'if they are properly licensed'to
do that business.I believe if you check the
records,you'll find out they are not licensed to
sell mobile homes.So we get back to the question,
'Is the mobile home for sale or is the mobile home
stored?'And I would tell you that as I told you at
the outset --it's our belief that the mobile home is
stored there.If you don't believe it's stored
there,then certainly that's your decision to make,
and you have the opportunity to discuss that matter
with the applicants."
Mr.Leffler:"I assume that we would.I apologize
for any inconvenience to the Chairman on this,but I
wanted to get a definitive..."
Chairman Sanchez:"Mr.Leffler!There is a
...[tape changed to side 4 and some words missed]
continuance,that's all!Now,I can show you how
irate I can be,if you want me to do that!Now,
let's please conduct ourselves as professional Board
members."
Mr.Leffler:"I did apologize,sir.Perhaps you
didn't hear me."
Mrs.Kelley:"What solution did you offer these
people?"
Mr.Coleman:"Solution?If you're asking did I
negotiate a settlement or attempt to,the answer to
the question is no,I didn't.My function,I
believe,is the interpretation and the enforcement
of the Ordinance,and I don't believe in general
that my function is to negotiate a solution,and I
don't say that to try to be argumentative or to try
to take a particular postion;i t is my belief that
i t is my obligation to make a decision when I asked
the question.That's the function of the Zoning
Administrator.
"If you don't care for the decision that's been made
by the Zoning Administrator,then there are
appropriate remedies --Special Use Permits,
Conditional Use Permits --where the remedy that is
taking place tonight,you file an apeal with the
Board of Adjustment to find out whether or not the
Zoning Administrator is right or not.When the
rules are reasonably well defined,then you are
obligated to play by the rules.I f the rules are
not well defined,then what is needed is to re -do
the rules so they're well enough defined so they can
be applied.
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE SIXTY-ONE
"Certainly the argument that has been placed before
you by the applicant,which is that there is some
confusion in what got in the Ordinance is a factor
you have to consider.I t is not a factor in my
understanding of how these things are supposed to
work,that is not,if you will,an excuse for me to
negotiate a settlement.I believe I answered your
question.I don't want to appear being totally..."
Mrs.Kelley:"No,I think that this issue,not only
with this case,comes up many times.Who do the
people turn to i f they cannot turn to you to tell
them what their legal rights are and what the
ramifications of those rights are?Who is the next
person they need to see in line?"
Mr.Coleman:"This Board."
Mrs.Kelley:"I'm sorry,I don't agree."
Mr.Elliott:"Mr.Chairman."
Chairman Sanchez:"Mr.Elliott."
Mr.Elliott:"I don't know i f this is in order or
not,Mr.Coleman.You're familiar with the sales
and rental organization on University Avenue,going
west toward Meridian on the south side of the
street?"
Mr.Coleman:"Sale,rental..."
Mr.Elliott:"Equipment?Contractor's equipment?"
Mr.Coleman:"There is a rent -all there.I know
where that is,yes."
Mr.Elliott:"Does that fall under the same
category of zoning?"
Mr.Coleman:"I don't..."
Mr.Elliott:"Do you know off -hand?"
Mr.Coleman:"I do not know the whole scope of
business.In general,a typical rent -all in a
typical zoning ordinance is something that would be
looked at as a commercial use rather than an
industrial use.
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE SIXTY-TWO
"As the equipment gets larger,more specialized,
it's easier to draw extreme conclusions than i t is
to talk about the grey areas,frankly.The extreme
would be obviously if you were renting large
contractors ---I'm talking about big bulldozers and
stuff.That impact would be substantially different
than people who rented relatively small stuff used
around the house on a daily basis."
Mr.Elliott:"So the only conclusions that we've
reached here tonight are that Mr.Beeman has to
build an 11 -acre building or specify different uses
of his property."
Mr.Beeman:"That's one of the..."
Chairman Sanchez:"Gentlemen,please,we are going
to have to stop speaking from the audience because
we have to take minutes of this,and the recorder
does not know who you are and if you are going to
speak,you will have to wait until we can get you a
turn at the podium where you can state your name and
your address so that you can go into the record.
But making statements from the audience cannot be
permitted."
Mr.Elliott:"My question was 'Have you got any
other solutions to this to offer other than to
uphold the Zoning Ordinance?'"
Mr.Coleman:"Certainly,the number of uses
permitted in the zoning district CB -2 is extremely
broad.There is not a problem finding a use to
which the land can appropriately be put.The
applicant has suggested selling boats.That's a
permitted use.Selling RVs--that'a a permitted use;
selling cars --that's a permitted use.Depending
upon how the property winds up being treated,
whether it's one piece,two piece;who owns it;how
some businesses are operated,and I'm specifically
trying to identify is the requirements to have
certain kinds of facilities that are available at
business hours,and I'm talking about toilets and a
series of other things,okay?And I --so I don't
know how they intend to conduct their business.
"If they're talking about selling the property,for
example,new applicant,and again I picked that
because it's clear -cut --you want to do business,
obviously,you're going to have to provide the
parking that's required;you're going to have to
provide the additional amenities that are going to
be required.If Mr.Beeman wanted to operate that
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE SIXTY-THREE
business as a part of his existing business,
depending upon what it was,how it was operated,the
answer to that question may be that he would need to
build some additional structures to serve the site.
"I also believe your remark about the 11 -acre
building is probably somewhat facetious,but the
answer to the question actually --no,we don't
necessarily need an 11 -acre building.What we need
is a use that's permitted in zoning district CB -2 in
a fashion to which the Ordinance says that the land
can be used."
Mrs.Kelley:"So in essence,are you asking him to
close his doors?"
Mr.Coleman:"No."
Mrs.Kelley:"What are you asking of him?"
Mr.Coleman:"I am asking him that i f in fact he is
conducting a business in zoning district CB -2,it's
part of this rezoning to zoning district C-4 that he
either rezone all or part of the site so that he can
conduct the business.I f he is in fact conducting
some other business that can be identified in some
fashion so that whatever decision this Board makes
tonight so that I apply i t to Mr.Beeman and i t
allows Mr.Beeman to do what he wants to do,then I
need to be able to tell anybody in the same position
Mr.Beeman's in,you may also do this."
Mrs.Kelley:"So you're suggesting that he rezone
then to the CI -1?"
Mr.Coleman:"Again,my position is that the use of
the land is not consistent with the provisions of
the Zoning Ordinance,and that anything that he
wants to make use of the land,i t is in conformance
with the provisions of the Ordinance.I don't have
a problem with that.That's a real general
statement.He's saying that he is in conformance
with the Zoning Ordinance.I'm saying he's not.
And we're asking you people to decide whether he's
right or I'm right."
Mrs.Kelley:"In this letter you state that he was
required to contact the Business License Clerk for
approval to add additional uses to his business
license.Could he have done that?Could he have
added these uses to the business license and be in
conformance?"
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE SIXTY-FOUR
Mr.Coleman:"Business license --part of the process
of getting a business license is to get the
approval,the zoning approval of our office.As
long as we believe and had no reason to change our
mind that the uses that he had proposed are not
permitted in zoning district CB -2,we will not
approve that change in the use.Specifically,i f he
told us that he was going to use this --my words,not
his --he told us that he was going to use this to
store his equipment,we would not approve."
Mr.Alexander:"Mr.Chairman,I think due process
would be best served if at some point when the Board
is...[com]pleted and wants to take a break and ask
some questions,Mr.Blunt has an opportunity to ask
some questions of Mr.Coleman.It might clarify
some issues for you.And vice -versa,i f someone
wanted to ask Mr.Blunt a question,Mr.Beeman a
question (since he's here),perhaps we should look
at the...I'm saying this...Mr.Coleman's
standpoint.I am not trying to give you advice."
Chairman Sanchez:"Well,it would be a highly
irregular move into the normal procedure of the
Board.One reason is Mr.Coleman cannot make a
decision this evening to this Board.Nor can
Mr.Blunt.
"The questions in the minds of the Board are going
to have to be satisfied.And I don't know that this
would really be proper about questioning each other
without a lot of interim interruptions.We can make
an attempt.If we hear Mr.Blunt's rebuttal and
then the Board is still not satisfied as to the
knowledge they have acquired this evening,then we
can certainly allow them to question each other and
see i f the Board can obtain the knowledge that
they're after to make the intelligent determina-
tion.So i f there are no more questions for
Mr.Coleman,then we'll allow the applicant rebuttal
and go from there.It's simply the same thing.
You're rebutting what he has said."
Mr.Blunt:"Thank you,Mr.Chairman.I will try to
be...[informal].The key to Mr.Coleman's argument,
as I understand it,is the general reference to
retail business in CB -1 that carries over into CB -2
and that because of that,the requirement of a
wholly enclosed building would also carry over.I f
that is the case,then there would be no reason for
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE SIXTY-FIVE
the three pages of specific types of CB -1 uses that
fall in the wholly enclosed building requirement,
none of which we fall into.
"All of this sounds terribly complicated,and really
it's not.The question is,'Is there a specific
requirement in this Zoning Ordinance that puts us
under an obilgation to sell,display or rent
contractor's equipment or supplies in a wholly
enclosed building or not?'That's all we ask.We
understand that Mr.Coleman has said yes,you had
to.We find no provision for that in this code.We
have found none in his presentation before this
Board tonight.The only thing that we have found is
an apparent ambiguity between the word 'storage'and
the word 'display';that apparently one,under
Mr.Coleman's interpretation,is allowed and the
other is not,and he has argued to you that what we
propose is the one that's not allowed.I'm telling
you that there is no definition in this code that
justifies that position.That is ambiguous --that
that ambiguity must be resolved not in favor of the
city,but in favor of the property owner using his
property in a manner that is not inconsistent with
the Zoning Ordinance.
"Basically,i f I understand Mr.Coleman's argument,
and I admit that I'm paraphrasing for my own
purposes,Mr.Coleman would have us construe the
ability to 'sell,display or rent contractor's
equipment or supplies'in a CB -2 district completely
out of existence,and it would basically put i t
either in CI -1 or CB -1,and that would do violence
to this ordinance because i t clearly allows it,and
does not allow --does not specify the requirement
that is set forth here.
"Again I want to stress that I think the difference
between the word 'store'and the word 'display'is
purely one of semantics.As was pointed out earlier
in some questioning to Mr.Coleman,had we asked for
permission to sell or display contractor's equipment
or supplies (and I think we did as a matter of fact,
specifically)that perhaps we might have been
allowed to,because clearly that's allowed in the
Ordinance.Then we get to the issue of whether or
not i t had to be in a wholly enclosed building or
not,perhaps we end up in front of you,anyway.
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE SIXTY-SIX
"The comment was brought up that we're trying to do
here what we could not do in the rezoning of the C-4
property.I respectively submit to Mr.Coleman,
that is not true.First of all,I was never
involved in that matter at all.I was never repre-
senting Mr.Beeman when that took place and had I
represented him,we probably would be before this
Board a lot sooner than we're here now.As i t is,
the ultimate question was never squarely presented
to anyone until now.
"He wanted to get property rezoned --he got a
property rezoned.That didn't solve the question.
The question is exactly what is before you now.I t
was not squarely presented then;it may have been an
attempt on Mr.Beeman's part to get around it,but
he's now got a larger issue to deal with that he is
in front of you,so that has nothing to do with your
decision here tonight.
"Another thing that has nothing to do with your
decision here tonight is how the County of Final may
construe this Zoning Ordinance.What they do with
an ordinance,even one that may be identical with
this one,has no bearing on what this jurisdiction
as a sovereign jurisdiction,will do in enforcing
its own ordinance.That's up to this Board,and
frankly,I have to tell you that whatever decision
the County makes is not even persuasive on this
Board i f it's not based on a clear application of
the code of law,and I submit to you it's not.
"Mr.Coleman,however,is right about one thing.
This is our remedy.He did not try to negotiate a
settlement,and although we believe he could have
and we wish that he had,he is correct in stating
his position as being a Zoning Administrator and the
duty that he had,and I agree with him in that
respect.He doesn't have to do that and he does
have to enforce the Zoning Ordinance and he does
have to do i t to the best of his ability,and I
think he's doing that,and so I don't wish for any
of my remarks to be ill -construed as being against
Mr.Coleman.We simply disagree.
"I'll give you an example of what I think would be
a CI -I use.It's not in Apache Junction,it's in
the City of Mesa but you can see i t every day
driving out here,and that's the Empire Machinery
Yard.There you have equivalent for contractor's
only.The general public doesn't go onto Empire
Machinery lot and decide to buy a Caterpillar
scraper.Contractors do,but the public doesn't.
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE SIXTY-SEVEN
I suspect i f the public tried to,they would have a
problem because there are certain wholesale tax laws
and other things that apply.I'm not sure whether
they could or not.The point is that the primary
purpose of a lot like that is exactly what's
contemplated in the CI -1 district.That's a clear
example of one.
"Juxtapose Empire Machinery with Beeman Drilling:
we have a situation of a guy who wants to drill a
well for a homeowner who's building a home on his
property;that's a commercial use.Mr.Coleman's
answer to this problem is to have Beeman Drilling
essentially change their business to something
else.We submit to this Board with all respect that
we don't need to do that;that we are in total
compliance with this ordinance as i t is.However,
in order to give some meaning to the requirement to
try to find a way to do this (frankly,by way of
compromise),we're willing to impose the sanctions
of CI -1 in the CB -2 district.I don't think we
should have to do that;we are willing to do that,
and I think that would solve the problem,provide
guidance,provide buffers to the neighbors,would
really provide a safety valve here,and avoids a
hard,fast decision that would say i t is or is not
subject to the restrictions of CI -1.We're willing
to do that,and that solves the problem.That
concludes my rebuttal remarks,and I'll be happy to
answer any questions."
Chairman Sanchez:"Any questions of Mr.Blunt?"
Mr.Leffler:"Mr.Chairman,may I ask the gentleman
a few questions?"
Chairman Sanchez:"Certainly."
Mr.Leffler:"Mr.Blunt,if you had i t to do at
this present time and you had a choice of three
words to use in your application,'parking,'
'display,'or 'storage,'how would you present this
application that was presented to i t concerning the
things that they applied for in their permit?
[Mr.Blunt:"Mr.Chairman...1 "I was just curious
to how you would address those definitions as
compared with 'storage'as represented."
Mr.Blunt:"First,let me answer your question
directly.I would use the word 'display'.The
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE SIXTY-EIGHT
reason I would not use 'storage'or any word is
because in my own common layman's knowledge if you
will --if someone was to ask me what I meant by the
word 'storage,'I would say where I don't intend to
do anything with a piece of property except put i t
somewhere and leave i t there indefinitely.That's
the whole purpose in putting it where i t goes,is to
leave i t there indefinitely till I decide what the
heck I want to do with it.To me,that's storage.
As opposed to putting i t there only for the purpose
of generating sales of services or equipment or the
sales of materials or supplies and at that point,
it's going to go off and do its work,and then it's
going to come back again and stay there until i t can
go again,and hopefully,i f I'm successful enough,
it will never be there at all because it's going to
be out doing work all the time.
"So to the extent that it's there for the purpose of
simply staying and saying it's not doing anything
but staying there,I think that in my own personal
opinion,that's 'storage'.We do not intend to do
that.We do not ask permission to do that.We
intend only to put property on that --excuse me --put
equipment and supplies on that property for only as
long as i t takes to sell i t or to get it out on the
field and use it.To me,that's 'display'.Your
code doesn't tell me one way or the other.Again,I
want to stress,I think that that ambiguity should
be resolved in favor of Mr.Beeman."
Mr.Leffler:"Now the classic question.What in
the hell's that mobile home doing there?"
(laughter)
Mr.Blunt:"I don't know."
Mr.Leffler:"I'd be curious to find out because i t
seems to be a bone of contention of Mr.Coleman's."
Mr.Blunt:"Apparently i t is,and i f that's the
bone of contention,I suspect we may have a problem
with that,but that was not within the scope of my
request before you tonight.I don't consider that
to be contractor's equipment or supplies."
Mr.Leffler:"And i t is on CB -2 property,or zone."
Mr.Blunt:"Well,we don't dispute that."
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE SIXTY-NINE
Mr.Leffler:"It seems to be a big bone of
contention because everytime we come up,i t turns
around and is there so..."
Mr.Blunt:"Well,this is the first time I heard
about it was tonight."
Mr.Leffler:"It's been there for a couple months."
Mr.Blunt:"I don't deny that it's been there for
some time.What I'm saying is that in this
particular debate we've had tonight,it's the first
time when I heard that it was mentioned,'was this
part of our request?'That's the first time I ever
heard that mentioned.I will answer that directly.
No,it's not part of our request."
Mr.Leffler:"I would not have brought i t up,but
Mr.Coleman brought i t up."
Mr.Blunt:"I'm glad that you did,sir.I hope I
made that clear."
Mr.Leffler:"I'm through,Mr.Chairman."
Chairman Sanchez:"Mr.Elliott,do you have any
questions?'
Mr.Elliott:"No,I haven't any."
Chairman Sanchez:"Mrs.Kelley?"
Mrs.Kelley:"No."
Mr.Blunt:"Mr.Chairman,thanks very much."
Chairman Sanchez:"Okay.Are there any questions
in the minds of the Board as to why we are having to
make the decision to uphold or rule against the
Zoning Administrator?What I'm asking is,do you
feel it's necessary for these two attorneys to...our
Zoning Administrator and the applicant's attorney to
question each other?I really can't see anything we
would gain from it,but you might be able to.I
think we're at a point we have i t covered quite
well,the content of this disagreement."
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE SEVENTY
Mr.Elliott:"Does Mr.Beeman have an opportunity
to speak or is that a...perhaps he doesn't need to?"
Chairman Sanchez:H...speaking through his
representation.He had the opportunity to speak.
Anyone that wished to speak in favor of this
application,including himself,could have spoken at
that time.He did not.[to Mr.Beeman]Mr.Beeman,
would you like to address the Board?"
Mr.Beeman:"No,Mr.Blunt covered everything I
wanted to say."
Chairman Sanchez:"I think that's wise in
order...that's the position I would take i f I were
in your place.
"Okay,we're down to the point that whether you feel
you can make a decision this evening because I'm not
going to close --this is a point where I would
normally close this hearing to the public,however,
if we're going to continue this hearing so we can
have an Executive Session in order to hear the legal
advice,that the interpretation of the Ordinance as
written to help us in our decision to uphold or rule
against the decision of the Zoning Administrator.
If we wish to continue this hearing we need to do
something else so we can have an executive session
to allow an attorney to advise us."
Mr.Leffler:"Mr.Chairman,I feel that the scope
of the decision that we're making without legal
advice at the moment is too prestigious and broad to
cover the issue by a simple motion as we think we
did here.There are too many overlapping areas in
that would preclude some other area and if we uphold
the Building Official,i t becomes too restrictive
for operation of just about anything that Mr.Beeman
opposed.
"The second point is that if we disallow his
opinion,we would open up a whole floodgate of
overlapping connections,so I think that we should
have legal counsel on this."
Chairman Sanchez:"Mr.Leffler,at least one time
this evening we can agree 100%!"
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE SEVENTY-ONE
Mr.Leffler:"Well,we're not really bad guys.
It's just that I had a point I wanted to get an
answer,and it was dodged.I apologize for it,but
I did get my answer."
Chairman Sanchez:"...try to put a little glee in
their lives,for this is a very tough decision the
Board is going to make.Whether i t be this evening
or a couple of weeks from now or a couple of months,
or whatever the Board decides.
"The fate of Apache Junction,the fate of Mr.
Beeman's business,at least that part of the
business,stands with this Board's decision,and
you're probably going to go to court one way or the
other,so you need to have this thing done
correctly,so if we have to go to Superior Court
then where the court will uphold our decision,and
if we do i t correctly,that will happen.If not,we
did all this for nothing.I certainly am in favor
of being able to receive legal advice before making
a decision of this magnitude that will affect
everyone."
Mr.Wilson:"Can I make a motion for an Executive
Session?"
Chairman Sanchez:"Beg your pardon?"
Mr.Wilson:"A motion to continue the hearing."
Mr.Hoffman:"You've already scheduled an Executive
Session.If your intent would be to continue this
to August 21,you can do so,and you already have an
Executive Session scheduled."
Mr.Wilson:"So I just make a motion to continue i t
into the Executive Session?"
Mr.Hoffman:"To continue the case to August 21.
You already have an Executive Session scheduled that
evening,so you can..."
Mr.Wilson:"...to continue...do we have to make a
motion to do that...?"
Mr.Hoffman:"You would need to move to continue
BA -2-89 to August 21,1989."
(Mr.Dunn:"At 7:00 p.m.")
Mr.Hoffman:"At 7:00 p.m."
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE SEVENTY-TWO
Chairman Sanchez:"...and in your motion,state 'at
7:00 p.m.in these chambers'."
Mr.Wilson:"Mr.Chairman,I move that we continue
this session (Mr.Hoffman:"BA -2-89")"BA -2-89 to
the scheduled Executive Session August 21 at
7:00 p.m."
Chairman Sanchez:"No,don't put the Executive
Session.Just continue BA -2-89 to August 21 at
7:00 p.m.in these chambers."
Mr.Wilson:"Well,I want...out...okay?
"Mr.Chairman,I move that we continue this session
BA -2-89 to August 21 at 7:00 p.m.in these
chambers."
Chairman Sanchez:"We have a motion to continue
this hearing to August 21 at 7:00 p.m.in these
chambers.I would like to ask the applicant --I know
that you would not like to --I know you would like to
get this over with this evening,but are you in any
real disfavor of continuing this so we could make an
intelligent decision?I feel we need legal counsel
and advice on it."
Mr.Blunt:"Mr.Chairman,I am sure I speak for my
client when I say that we would prefer,of course,
to have a finality to this decision as soon as
possible.To the extent this Board feels that i t
needs legal advice,we understand that."
Chairman Sanchez:"We certainly appreciate that.
We have a motion to continue.Do we have a second?"
Mr.Leffler:"I'll second it."
Chairman Sanchez:"We have a second by
Mr.Leffler.Any discussion?Hearing none,vote by
roll call,please."
Mrs.Pruitt:Mr.Wilson...(Mr.Wilson:"Yes");
Mr.Leffler...(Mr.Leffler:"Yes");Mrs.Kelley...
(Mrs.Kelley:"Yes");Mr.Elliott...(Mr.Elliott:
"No");Mr.Sanchez...(Chairman Sanchez:"Yes").
[Motion passed 4-0-1 with Mr.Elliott dissenting.
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE SEVENTY-THREE
ADJOURNMENT
Chairman Sanchez:"Okay,the Board has a majority
rule to continue this to August 21 at 7:00 p.m.in
these chambers.I am sorry for the delay.It's in
the best interest of the applicant and the City of
Apache Junction,and the Zoning Administrator that
this Board have legal advice,as well as most of the
Board feels that way.
"Thank you very much.
Mr.Blunt:"Thank you,Mr.Chairman.Thank you to
the Board."
Chairman Sanchez:"Since we have [no more]items
our agenda..."
Mr.Hoffman:"Mr.Chairman,let me do just one
thing before we close the meeting."
Chairman Sanchez:"Okay."
Mr.Hoffman [consulted with Kathy Connelly]:"My
fears have been allayed,sir.Please continue.
Thank you."
Chairman Sanchez:"Okay,you're okay?"
Mr.Hoffman:"Yes,sir."
Chairman Sanchez:
back?"
Mr.Hoffman:"Yes
Chairman Sanchez:
adjourn."
Mr.Leffler:"Mr.
Chairman Sanchez:
I hear a second?"
on
"Would you like to have your pen
sir,please."
"I will entertain a motion to
Chairman,I move we adjourn."
"We have a motion to adjourn.Do
Mrs.Kelley:"I second it."
Chairman Sanchez:"Seconded by Mrs.Kelley.With
no objections,this meeting is adjourned."
[Meeting adjourned at 10:27 p.m.]
BOARD OF ADJUSTMENT MINUTES AUGUST 7,1989 PAGE SEVENTY-FOUR
eAr'-efre f
George/R.Hoffman,xecutive Secretary
en Sanchez,Chairman