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HomeMy WebLinkAbout1989-08-23 BOA MINUTESBOARD OF ADJUSTMENT CITY COUNCIL CHAMBERS 1001 NORTH IDAHO ROAD APACHE JUNCTION,ARIZONA AUGUST 23,1989 8:37 P.M. NO WORK SESSION ON AGENDA ITEMS HELD PRESENT ABSENT GUESTS Mrs.Blatterspiel Mr.Elliott List in Mrs.Kelley Mr.Schaffer Planning Mr.Leffler Office Mr.Wilson Mr.Sanchez,Chairman Mr.Coleman,Staff Mr.Dunn,Staff Mr.Nakagawa,Staff Mr.Hoffman,Executive Secretary Mrs.Pruitt,Recording Secretary SYNOPSIS Agenda for August 23,1989 approved as submitted. Minutes for August 21,1989 approved as submitted. BA -2-89 approved. ROLL CALL Five members present with those absent as shown above. AGENDA/MINUTES Chairman Sanchez asked for a motion to approve agenda as presented. Board Members Kelley/Wilson -M/S "I make a motion that we approve the agenda dated August 23,1989." Motion passed unanimously. Chairman Sanchez asked for a motion to approve the minutes. Board Members Blatterspiel/Kelley -M/S "I will make a motion that we approve the minutes for August 21,1989." Motion passed unanimously. BOARD OF ADJUSTMENT MINUTES AUGUST 23,1989 PAGE TWO BA -2-89 [NOTE:Case BA -2-89 is an application by Bobby Beeman,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.] Chairman Sanchez:"Okay,Item #3 of our agenda this evening is BA -2-89 which has already been opened to the public and considerable testimony presented to the Board.This is still open to the public,and i f there are any presentations by Mr.Coleman or any public presentation by Mr.Blunt --[to Mr.Coleman] "Mr.Coleman,did you have anything further you would like to...?" Mr.Coleman:"Not at this time,thank you." Chairman Sanchez:"Mr.Blunt?" Paul Blunt:"Mr.Chairman,I assume --I've been told prior to this meeting that the Board was furnished with a copy of the record of the prior hearing and has had a chance to review that record before tonight's hearing.And obviously,you've had over a week to think about this --the last hearing --,and you've also had the benefit of consulting with counsel.Rather than retrace the rather lengthy path that we took last week,I will simply state that we believe that the use we propose to make of this property is within the letter of the Zoning Ordinance,certainly,and we feel certainly within the spirit of the Zoning Ordinance as well.We believe that we should be allowed the use that we had proposed within the CB -2 district.And I'd be happy to answer any questions that the Board may have,i f i t does have any at this point as a result of the time it's had to debate this issue and think about it." Chairman Sanchez:"Okay,there's --there may possibly [be]some questions that the Board may have." Mr.Blunt:"Mr.Chairman,i f I could then,rather than go through the entire argument which you've heard at least once and maybe more than once by reviewing the record,I would like to --and having you now have the benefit of a week to think about BOARD OF ADJUSTMENT MINUTES AUGUST 23,1989 PAGE THREE this and to consult with your counsel,and with that as your rather solid foundation at this point in this process,I would like to repeat the essence of our argument very briefly so that you will --so that we can all very clearly understand what i t is that we're --before you. "We propose to use --when I say 'we,'I mean Bob Beeman,the entire Beeman family,Arizona Beeman Drilling Company --proposes to use its CB -2 property for the 'sale,display,or rental of contractor's equipment and supply.'That is what we are asking. We believe that that is clearly spelled out in the CB -2 ordinance and we should be allowed to do that with no further restrictions,other than the restrictions which are stated in subsection C,and there aren't any.We believe that the use that the fencing would put around the property,already the quality of the development is in excess of what the code requires.We believe that the requirement of a wholly enclosed building,which was what was imposed upon us by staff,is not in keeping with CB -2, subsection C,'Uses';that that would only be found if we were within the CB -1 use area,which we are not. "And the other argument by which additional restrictions were imposed upon us by staff is that this use is also arguably found in the CI -1 zoning district,which is Light Industrial,and that we are not a CI -1 zone and that therefore this use cannot be found there.The problem,of course,is that that denies the very language of CB -2,which says we can do what we're proposing.And in fact,we're already within the CI -1 because we're in a wholly fenced area.But we believe that that 'contractor's equipment sales yard,'which is referred to in CI -1 refers to a type of use which is completely different from the use that we are making. 'Contractor's equipment sales yard'is something as I said last time that you would find at Empire Machinery,for example,not at Beeman Drilling which is open to the public and which doesn't sell contractor's equipment.I t sells its supplies and i t rents its previous (?)equipment to anyone,a husband and wife or another company,for that matter,to drill water wells.So,that's our argument in a nutshell.We think that it's fair;we think that i t allows the Board to apply some rules -- not only for this case but for other cases that may come before it --in a consistent fashion;will not do violence to your Zoning Ordinance;and will achieve a very just result here.In a nutshell,that's our argument." BOARD OF ADJUSTMENT MINUTES AUGUST 23,1989 PAGE FOUR Chairman Sanchez:"Okay,thank you.Does any member of the Board wish to gather any information from either the Zoning Administrator or Mr.Blunt? Especially Mr.Blunt,since he is now closing?" Mrs.Kelley:"Yes.Can he specifically tell us what the business license stated its use --the use of the business license --what was stated on that business license?" [Some unintelligible remarks were made.] Mr.Blunt:"Mr.Chairman,Mrs.Kelley,just one moment,please.[pause]"Mr.Beeman believes --of course he hasn't had a chance to look at the license tonight,so this is from memory --but he believes that the city sales --city business license says 'well drilling and pump sales.'Certainly that would be in keeping with their...." Chairman Sanchez:"Okay,any other questions of Mr.Blunt." David Alexander:"Mr.Chairman,is Mr.Blunt going to have the opportunity to ask Mr.Coleman questions?"(Chairman Sanchez:"Certainly.")"Are we going to have the opportunity to ask Mr.Blunt questions?" Chairman Sanchez:"You certainly may.If we don't have a problem with the minutes part of i t since we're going to have to yield the podium back and forth unless one of the other microphones works." Mr.Alexander:"I think this one works." Chairman Sanchez:"Either that,or use the microphone and each take their turn at the podium to ask the questions and answer.I don't know of any other way to do this." Mr.Blunt:"I've been accused of having a loud voice --I assume that it will be no problem." Chairman Sanchez:"The recorder has to hear you, though;that's the problem.We can hear you,but I don't think the recorder can.That's our problem." Mr.Blunt:"I'm not sure at this point i f I would necessarily have any exami--any questions for Mr. Coleman at this point.I think that the arguments were thoroughly debated at the last hearing.But BOARD OF ADJUSTMENT MINUTES AUGUST 23,1989 PAGE FIVE unless something new comes up tonight that has already been discussed,I doubt that I would have any questions for Mr.Coleman." Chairman Sanchez:"There may be some questions the other way around,though." Mr.Blunt:"Certainly,and I'm free here to answer them now,i f he wishes." Mr.Alexander:"I was...[concerned],Mr.Chairman, with the opportunity of Mr.Blunt and likewise the City,as far as cross-examination.I f in fact Mr.Blunt is satisfied,i f he has had his opportunity to...,then I'm satisfied." Mr.Blunt:"And I am.Thank you." Chairman Sanchez:"Okay.Mr.Coleman,is i t possible to obtain a copy of the business license?" Mr.Coleman:"Yes.At this hour?" ?:"Yes,sir." Mr.Hoffman:"Mr.Chairman,maybe if you would dispatch me to do that deed,I might be able to do that,if you desire." Chairman Sanchez:"Well,we could hold a recess..." Mr.Hoffman:"Please proceed without me." Chairman Sanchez:"Well,we could."[laughter]"I wasn't meaning that facetiously." Mr.Hoffman:"Shall I do that?" Chairman Sanchez:"If you wouldn't mind.I think the Board needs to satisfy themselves.[Mr.Hoffman left.]"Are there any other questions that you would like to ask?" Mr.Leffler:"Yes,Mr.Chairman.Could we ask Mr.Blunt to sit down?"[laughter] Mr.Blunt:"I take i t I'm done." Chairman Sanchez:"He can certainly sit down i f he's done.But if anyone asks him a question,then he has to go back to the podium.He's been sitting for a while." BOARD OF ADJUSTMENT MINUTES AUGUST 23,1989 PAGE SIX Mr.Blunt:"Yes,I don't mind sitting all this time." Chairman Sanchez:"He....Okay.Our business is in general complete.I don't know why we don't just recess until Mr.Hoffman returns." Mr.Leffler:"Mr.Chairman,I move we recess until Mr.Hoffman returns." Chairman Sanchez:"Okay,we will recess until Mr.Hoffman returns." [Meeting recessed at 8:49 p.m.and reconvened at 8:57 p.m.] Chairman Sanchez:"Okay,we will declare recess over,and we're back in session."[copies of the business license were handed out to Board members, Mr.Blunt and Mr.Heston.] John Heston [Board's legal counsel]:"One thing we may want to do for the record --would perhaps the two attorneys want to stipulate to the introduction of this as an exhibit?" Mr.Alexander:"I have no objection;I'm not sure i f it means anything,but I have no objection." Mr.Blunt:"I have no objection." Mr.Hoffman:"The Acting City Manager/City Clerk indicated that the number on there could be checked to see i f that included the ability to conduct retail sales --I guess there are classification numbers on that with the State.She said she couldn't determine that..... Mr.Leffler:"If I may,I would like to ask a question.Does that just include the C-4 area?" Mr.Hoffman:"I believe that the business license is for the business,and I don't believe i t is fractured for one portion of their property and not for the other.I f somebody disagrees,speak up." Mr.Alexander:"Mr.Chairman and Members,you might ask if that's even the address of their current business location;I don't think i t is,is it?" Mr.Coleman (?):"It's not." BOARD OF ADJUSTMENT MINUTES AUGUST 23,1989 PAGE SEVEN Mr.Dunn:"What's the address on the business license?" Mr.Blunt:"2315 East U.S.60." Mr.Dunn:"On the application,we have 1341." Mr.Blunt:"1341's the current address.It's the same business,but it's a different address." Bobby Beeman:"I --do you want me to...that's when we got our business license,that's where we were..." Mr.Dunn:"...transfer i t over to this other...?" Chairman Sanchez:"This is transferrable to the -- either property?" Mr.Dunn:"I don't know --that was...I don't know i f i t is or not.I don't know what the situation is with the business license." Mr.Hoffman:"Does someone know?" Mr.Coleman:"Mr.Chairman,I'm not sure what the zoning district at this location is --that I do not know,whether or not it's transferrable.We would in fact write a zoning certificate for a well- drilling operation at the current location,the same as we wrote this.I f in fact i t included the 'sale, rental and display of contractor's equipment,'we would undoubtedly be resolving that issue in the same fashion as we are resolving the issue tonight." Chairman Sanchez:"Well,does i t state that i t says ...[looks like it]excludes retail and simply circles 'contractor's services' --this license... that's why I ask i f this is transferrable." [Several unintelligible comments were made by Board members,then a long pause.] Chairman Sanchez:"Well,I think what we're trying to find out is are they licensed to anything there? Is this current license transferable over to the property we're talking about to begin with,or is this in fact,the storage yard?" Mr.Heston:"With the Board's permission,I think that considering the license for any information i t BOARD OF ADJUSTMENT MINUTES AUGUST 23,1989 PAGE EIGHT may give you as to the use of the business is an appropriate use to be made of the evidence.Whether or not the business license is valid wouldn't have any impact on whether or not the zoning use was legal or illegal,and so I'm not sure that's a question that we need to be answered.Do two counsel agree?" Mr.Blunt:"Certainly --absolutely." Mr.Alexander:"Yes." Chairman Sanchez: as..." "Well,we will accept this in Mr.Heston:"Perhaps identify it,sir,i f it's all right,as say 'Board's Exhibit I'?" Chairman Sanchez:[to Mr.Wilson]"Would you hand this to Mr.Hoffman?"[Mr.Wilson handed exhibit to Mr.Hoffman,who handed i t to Mrs.Pruitt.] Mrs.Pruitt:"Thank you." Chairman Sanchez:"Okay,do we have any further questions by our attorney...,applicant or Board members?[Mr.Leffler made an unintelligible comment.]"Then I will close this meeting to the public and will ask the Board to deliberate and the Chair will entertain a motion." [Several Board members made some unintelligible comments to one another.] Mrs.Kelley:"Mr.Chairman,I would like to make a motion." Chairman Sanchez:"Mrs.Kelley." Board Members Kelley/Leffler -M/S "I move that in case BA -2-89,an Appeal of the Zoning Administrator's Decision,the Board overrule the decision of the Zoning Administrator and interprets Section 16.0201,Uses Permitted in a CB -2 General Business Zone,Apache Junction Zoning Ordinance,as it applies to this case as follows: The applicants have proposed the following uses for their property described in this application: BOARD OF ADJUSTMENT MINUTES AUGUST 23,1989 PAGE NINE 1.Sale,rental or display of contractor's equipment and/or supplies. 2.Sale,rental or display of commercial machinery. The uses proposed by the applicants are not required to be conducted within a completely enclosed building in a CB -2 General Business Zoning district, but must be conducted within an area enclosed on all sides by a solid wall,compact evergreen hedge,or uniformly painted board fence,not less than six feet (6')in height. The findings --the reasons for my feelings on this -- are: 1.There is question whether the Zoning Adminis- trator,this Board,Mr.Blunt,or anyone else can determine artibrarily when an article ceases to be on display and begins to be in storage. 2.Because there is no ordinance that specifies when a display item becomes a storage item,thus requiring a wall,hedge,or fence,i t puts us in an ambiguous position concerning the interpreta- tion of the existing zoning ordinances. 3.The ambiguity regarding the storage/display has brought about the arbitrary ruling by the Zoning Administrator.It would appear that the property owner would be under undue hardship,and I would like to refer to the Arizona Statute 9-462.01, which states that the statutes granting legis- lative power for adopting zoning ordinances will be strictly construed and any ambiguity or uncertainty shall be decided in favor of the property owner. 4.The property owner will have to address and remove those items that do not fall into the category of being a business related item,and I feel that at this time the double -wide mobile is a matter of question,and I recommend that the Board direct the property owner to remove that item within 30 days." Chairman Sanchez:"Okay,you've heard the motion by Mrs.Kelley.Do I have a second?" Mr.Leffler:"I second it." BOARD OF ADJUSTMENT MINUTES n -e-e4 Ge6rge9R.HoffdiaX'Executive Secretary AUGUST 23,1989 PAGE TEN Chairman Sanchez:"We have a second by Mr.Leffler.Any discussion?Hearing none,I will ask for a roll call vote." Mrs.Pruitt:"Mrs.Kelley...(Mrs.Kelley:"Yes"); Mr.Leffler...(Mr.Leffler:"Yes"); Mrs.Blatterspiel...(Mrs.Blatterspiel:"Yes"); Mr.Wilson...(Mr.Wilson:"Yes");Mr.Sanchez... (Mr.Sanchez:"No")." [Motion passed 4-0-1 with Chairman Sanchez dissenting.] Chairman Sanchez:"Okay,Mr.Coleman,Mr.Blunt: the Board has --majority of the Board has voted to overrule the Zoning Administrator's decision,with certain stipulations.I guess we can go from there.I certainly appreciate all the undue waiting you've had to undergo tonight and the previous nights of the lengthy delays and postponement,and thank you very much for your indulgence." Mr.Blunt:"Mr.Chairman,on behalf of the Beeman family,it was certainly --frankly,a privilege to be here,and we were not at all dismayed by the time and effort that you took;quite the opposite, frankly.I want to say thank you very much." Chairman Sanchez:"Okay,we have no further business at hand this evening.The Chair will entertain a motion to adjourn." Board Members Wilson/Leffler -M/S "I make a motion we adjourn." Mr.Leffler:"I second it." Chairman Sanchez:"Second to my left here.Hearing no objections,this meeting adjourns." [Meeting adjourned at 9:10 p.m.] Ken Sanc ez,Chairman ORDER BOARD OF ADJUSTMENT CITY OF APACHE JUNCTION,ARIZONA CASE NO.BA -2-89 DATE OF HEARING:August 23,1989 APPLICANT:Bobby Beeman (Arizona Beeman Drilling Company) PROPERTY LOCATION:1341 East U.S.Highway 60 TAX ASSESSOR'S PARCEL NUMBER:102-02-006 ZONING DISTRICT:CB -2 REQUEST: ALLEGED ERROR: Appeal of the Zoning Administrator's Decision regarding what may and may not be sold or/and stored outside of a building in a CB -2 General Business zoning district. The Zoning Administrator has erroneously forbidden the Applicant from utilizing certain portions of his CB -2 property for the keeping and display of retail equip- ment and supplies and commercial vehicles within a wholly fenced and screened area. BOARD OF ADJUSTMENT ACTION:MIS Board Members Kelley/Leffler "I move that in case BA -2-89,an Appeal of the Zoning Administrator's Decision,the Board overrule the decision of the Zoning Administrator and interprets Section 16.0201,Uses Permitted in a CB -2 General Business Zone,Apache Junction Zoning Ordinance,as it applies to this case as follows: The applicants have proposed the following uses for their property described in this application: 1.Sale,rental or display of contractor's equipment and/or supplies. 2.Sale,rental or display of commercial machinery. The uses proposed by the applicants are not required to be conducted within a completely enclosed building in a CB -2 General Business Zoning district,but must be conducted within an area enclosed on all sides by a solid wall, compact evergreen hedge,or uniformly painted board fence,not less than six feet (6')in height. ORDER -BOARD OF ADJUSTMENT -CASE NO.BA -2-89 Page 2 en Sanaez,Chaiftan Board of Adjustment xc:File (original) Applicant City Council The findings --the reasons for my feelings on this -- are: 1.There is question whether the Zoning Adminis- trator,this Board,Mr.Blunt,or anyone else can determine artibrarily when an article ceases to be on display and begins to be in storage. 2.Because there is no ordinance that specifies when a display item becomes a storage item, thus requiring a wall,hedge,or fence,it puts us in an ambiguous position concerning the interpretation of the existing zoning ordinances. 3.The ambiguity regarding the storage/display has brought about the arbitrary ruling by the Zoning Administrator.It would appear that the property owner would be under undue hardship,and I would like to refer to the Arizona Statute 9-462.01, which states that the statutes granting legislative power for adopting zoning ordinances will be strictly construed and any ambiguity or uncertainty shall be decided in favor of the property owner. 4.The property owner will have to address and remove those items that do not fall into the category of being a business related item,and I feel that at this time the double -wide mobile is a matter of question,and I recommend that the Board direct the property owner to remove that item within 30 days." Motion passed 4-0-1 with Chairman Sanchez dissenting. 8/29/89 (Date) Zoning Administrator/Building Official Central File Planning and Zoning Commission