Loading...
HomeMy WebLinkAbout1990-05-07 BOA MINUTESBOARD OF ADJUSTMENT CITY COUNCIL CHAMBERS 1001 N.IDAHO ROAD APACHE JUNCTION,ARIZONA MAY 7,1990 7:00 P.M. WORK SESSION ON AGENDA ITEMS AT 6:45 P.M. PRESENT Mrs.Blatterspiel Mrs.Kelley Mr.Leffler Mr.Schaffer Mr.Wilson Mr.Sanchez,Chairman Mr.Coleman,Staff Mr.Dunn,Staff Mr.Esquivias,Staff Mr.Nakagawa,Staff Ms.Brown -White,Executive Secretary Mrs.LeCount,Recording Secretary SYNOPSIS ROLL CALL AGENDA ABSENT GUESTS Mr.Baker List in Planning Office Agenda for May 7,1990 accepted with Items No.4 (Request to reconsider BA -2-90 /Doebler) and 5 (Reconsideration of BA -2-90 /Doebler) deleted. Minutes of April 9,1990 and April 26,1990 approved as submitted. BA -1-90 (Bushaw/Patch Enterprises)continued to June 11,1990 Six members present with one absent as shown above. Chairman Sanchez asked for a motion to approve the agenda dated May 7,1990. Board Members Blatterspiel/Kelley -M/S "I move we accept the agenda with Item No. 4 and 5 deleted." Motion passed 4-2-0 with Mr.Leffler and Mr. Sanchez dissenting. Board of Adjustment Minutes May 7,1990 Page Two MINUTES EXECUTIVE SESSION BA -1-90 Chairman Sanchez asked for a motion to approve the minutes dated April 9,1990 and April 26,1990. Board Members Kelley/Leffler -M/S "I move that we approve th? minutes dated April 9,1990 and April 26,1990." Motion passed 6-0-0. Chairman Sanchez asked for a motion to adjourn to Executive Session. Board Members Leffler/Wilson -M/S "I make a motion that we adjourn to Executive Session." Motion passed 6-0-0. Chairman Sanchez announced that the meeting will now be adjourned (7:07 P.M.)and will resume after the Executive Session. The meeting reconvened at 7:55 P.M. Opened Case BA -1-90 (Bushaw/Patch Enterprises) and asked for staff briefing. Mr.Dunn explained that the property in this case is located on Fourth Avenue and Meridian and is an appeal of the Zoning Administrator's decision. Charles Coleman,who is the Zoning Administrator, will give the staff recommendation on this case. Mr.Coleman stated that on November 27,1989, Patsy K.North applied for a business license. The request identified the business as PN's Resale Shop and states that the nature of their business is "...(sale of)used clothing,appliances, household items,misc.". The business license was denied.As a result of the denial,the owner of the land,Joseph T.Bushaw, has appealed the decision of the Zoning Administrator that a second-hand store is not a permitted use in Zoning District CB -1. He said Mr.Bushaw believes the Zoning Administrator has erred in denying a business license to PN's Resale Shop. Board of Adjustment Minutes May 7,1990 Page Three In Section 16.0101 (uses permitted in CB -1), paragraph B,the second item is identified as an "Apparel Store".Section 16.0101, paragraph B,also identifies "Electrical Appliance Store"as a permitted use.To the extent that Mr.Bushaw's statement is applicable to his claim,he is correct. However,Section 16.0201 which is a permitted use in CB -2 in paragraph C,identifies specifically "second-hand goods:personal furniture,books,magazines,automobiles, but not second-hand auto parts". I t is the opinion of the Zoning Administrator that this is the applicable section. Additionally,Section 3.0102,paragraph G says "The express enumeration and authorization herein of a particular class of building, structure,premise or use in a zone shall be deemed a prohibition of such building structure,premise or use in all other zoning districts or more restrictive classifications", therefore,since the use is specifically identified in Zoning District CB -2,which is a less restrictive district,it must be prohibited in Zoning District CB -1 which is a more restrictive district. I t is because of this prohibition that the zoning certificate indicates the business is not in compliance with the Zoning Ordinance. It is also noted that this cannot be an ancillary or secondary use because i t is the only business conducted in the building according to the application. Therefore,based upon the application sub- mitted for a business license,based upon the provisions of Sections 16.0201 and 3.0102, i t is the opinion of the Zoning Administrator that the request for zoning approval was properly denied and the use as described on the request for zoning approval is not a permitted use. Board of Adjustment Minutes May 7,1990 Page Four Chairman Sanchez asked i f there were any questions of staff. Mr.Leffler asked i f the property in question had a business license prior to the application or a permit to operate. Mr.Coleman answered that a series of business licenses had been issued to this location prior to this application. Mr.Leffler asked what the date was of the last permit that was useable. Mr.Coleman replied that the last business license approved was February,1987 for Ron's Produce which is allowed in Zoning District CB -1. Chairman Sanchez asked i f the apparel that is listed in the CB -1 designation is being inter- preted as being new. Mr.Coleman replied yes,we do. Chairman Sanchez asked what zoning classification i t could operate under. Mr.Coleman answered Zoning District CB -2. Chairman Sanchez asked what classification could he be given by the City Council in order to operate. Mr.Coleman said that depended upon the nature and extent of the retail sales;probably be a C-2 or C-3 Zoning District. Chairman Sanchez questioned whether that would require a change in the General Plan. Mr.Coleman said currently the General Plan shows the area as a residential district.I t does not preclude an application.It makes the application more difficult to sustain. Chairman Sanchez asked i f there were other questions of Mr.Coleman.There were none. He then asked i f the applicant wished to speak. Board of Adjustment Minutes May 7,1990 Page Five Mr.Joseph Bushaw,E.McKellips Drive, Mesa.He was here as the landowner on behalf of Patsy and Jack North who applied for a license,paid for i t and were refused a license. He thanked the Board for having him. Chairman Sanchez explained that the area in which the business is located is in a medium density residential area according to the Apache Junction General Plan.That does not mean i t can't be changed i f the City Council so desires. Mr.Joseph Bushaw inquired as to what the cost would be to him i f he rezoned his property to C-2. Mr.Nakagawa said the filing fee is $250.00 plus additional footwork involved at the time of the application. Mr.Joseph Bushaw said he assumed there would be no refund. Mr.Nakagawa replied no. Mr.Joseph Bushaw asked i f new items were sold,how many would they have to sell. Chairman Sanchez could not give him an answer. Mr.Joseph Bushaw pointed out that i f a dress is tried on by two or three people then i t is not new. Mr.Sanchez commented that although the dress was tried on by different people, i t was still owned by the store. Mr.Bushaw said he is being refused a license because new items are not being sold.The first item on the CB -1 list is antiques. He asked how many new antiques did they expect to see. Chairman Sanchez answered if you change the designation of your business to an antique store,most probably you can operate. Board of Adjustment May 7,1990 Page Six Mr.Joseph Bushaw remarked that there are so many uses on the list that could not possibly be new.You cannot buy a new antique. He presented staff with a list of 212 signatures from citizens who were unhappy because Mr.Bushaw was refused a license. He raised the issue of taxes and the fact that he was the only one on the street that has donated the ten -feet (10')of land requested by the city. Chairman Sanchez asked Board members i f they had any questions of Mr.Bushaw. Mrs.Kelley commented that the problem was the resale of the used items. She suggested that he or his renter get some antiques and change the name to an antique store and reapply. She mentioned that during the Executive Session she had asked what Mr.Bushaw's alternatives were. Chairman Sanchez reminded her that according to the law,she was not to discuss any matter that was discussed in the Executive Session. Mrs.Kelley suggested he either change the zoning or change their specific categories of things that can be sold or done in that zoning district. He could obtain from the Planning Division a copy of a list of uses.She suggested he conform his business to one of those on the list and reapply. Mr.Leffler asked Mr.Bushaw what made him decide to go into this business and how has he continued to operate without a license. Mr.Joseph Bushaw explained that an association had been formed with the AMVETS Post No.2 and they operated as a non-profit store under the AMVETS. Board of Adjustment Minutes May 7,1990 Page Seven He said they inquired at the City as to what had to be done and were told that there would be no problem,i t is a non-profit organization under the AMVETS.They asked that the record of the corporation and etc. be brought in. Ron Eagle,who was the Commander at the time,said he would see that the city was given the information they had asked for. Mr.Eagle had not taken care of the matter so at that point they were operating illegally. The money went to the AMVETS over expenses of rent,etc. He then applied for a license and was refused. Mr.Leffler asked how the AMVETS got involved with his property. Mr.Bushaw explained that they were on a lease project with them.He operated the store for them and guaranteed them a certain payment every month regardless of whether i t made the rent or not. Mr.Schaffer suggested that they submit another application for reclassification. Chairman Sanchez stated that the Board does have the authority to allow Mr.Bushaw 90 days to comply. He asked i f anyone wished to speak in favor of the application. Jack North,266 W.17th Avenue,Apache Junction, explained that his wife rents the store and has lived in Apache Junction. He said in November he had spoken with the Building Department and asked whether the zoning applied to him. He mentioned several businesses in the area that sell new,and used articles. He explained that they are servicing the poor people of the community and the elderly. He felt his business would be an asset to the community. Board of Adjustment Minutes May 7,1990 Page Eight Chairman Sanchez asked i f the Board members had any questions of Mr.North.There were none. He asked i f there was anyone who wished to speak in favor of the application. Patsy K.North,266 W.17th Avenue,Apache Junction,explained that she had 212 signatures from senior citizens who were upset when they learned that she may not be in business any longer. She explained that the reason she has all those signatures is because the people who shopped at her place of business were unable to shop elsewhere at the prices she had offered to them. Jean Perkins,616 N.Cactus,commented that the area where Mr.and Mrs.North's store is located used to be a sore eye to the community but the North's have cleaned i t up.She feels they should get the zoning they want. Artie Hilbrands,11551 Fourth Avenue,said although he is not a resident of Apache Junction,in his opinion,Mr.Bushaw should be able to operate his business the way he wants to. Chairman Sanchez asked i f there was anyone who wished to speak in opposition to the application.There were none.He then asked for staff recommendation. Mr.Coleman stated that i t was the function of the staff to administer the provisions of the Zoning Ordinance. In this particular case,the property in question is zoned CB -1.There are several pages of permitted uses.I t appears that the issue before the Board is whether the sale of used merchandise is a permitted use in Zoning District CB -1. I f this is a second-hand store then under the provisions of the Zoning Ordinance and the provisions we have cited,the appropriate place for i t is Zoning District CB -2. I f this Board,in reviewing the facts, determines that this is a second-hand store Board of Adjustment Minutes May 7,1990 Page Nine as identified in Zoning District CB -2 then i t would appear that the Board has an obligation to deny this request on purely technical merits. If the Board wished to approve this,i t would appear that appropriate action for the Board is to find that the use of this building is not used merchandise but rather something else and that something else needs to be found in Zoning District CB -1. All the testimony that has been provided indicates that this is a second-hand store. In addition,there is an application stating i t is used for a second-hand store.It appears there will be several problems calling i t something else permitted in Zoning District CB -1. He said what this Board may not do is determine that i t is a second-hand store as identified in Zoning District CB -2 and permit that use in Zoning District CB -1.This is prohibited under the provisons of the Zoning Ordinance. If we find that this is a sale of used merchandise as identified in Zoning District CB -2 then i t would appear that there is going to be an obligation to deny this application. It is the opinion of the Zoning Administrator that this is the use that is identified in Zoning District CB -2. He said legally and technically,i t must be denied and our recommendation will be for denial. Chairman Sanchez asked Mr.Bushaw i f he has any requests at this time. Mr.Joseph Bushaw asked i f the City had a figure i mind of what amount of new furniture would have to be sold in comparison to used merchandise to qualify for an apparel store. Chairman Sanchez answered he had no way of knowing. Mr.Joseph Bushaw asked Mr.Coleman i f he could answer his previous question. Board of Adjustment Minutes May 7,1990 Page Ten Mr.Coleman stated in general,the applicant has an obligation to identify what the nature of his business is and that is evaluated.We believe him i f he tells us he is going to sell new merchandise.I f a more technical question is being asked as to his 10%new merchandise or whatever else,then i f the sale of used merchandise is a secondary or an ancillary use associated with another permitted use in the district,then probably some provision could be found for retail sales of used merchandise. To do that,I would think that this building would be devoted to the sale of something identified in CB -1 and if we are talking about new versus used,without doing an evaluation I would have to guess i t would have to be in excess of 50%. He asked the applicant how he intended to resolve the issue new versus used. Mr.Joseph Bushaw replied that perhaps he should get a GE license. He thanked the Board for their time. Chairman Sanchez commented that perhaps the hearing could be postponed and he could try to work something out with the Zoning Administrator. Mr.North requested a continuance of his case until September 1,1990. Board Members Schaffer/Wilson -M/S "I make a motion that we move this case to our next regular meeting which is scheduled for June 11,1990,at 7:00 P.M.in these chambers." Motion pased 6-0-0. Chairman Sanchez announced the next item on the agenda is the Director of Development Services Report. Ms.Brown -White stated that on April 27th a notice was sent to the Board of Adjustment members whose terms are due to expire on June 30,1990, requesting that they inform the City whether or or not they wish to be considered for reappointment.The members receiving notices were Mrs.Blatterspiel,Mr.Sanchez and Mr. Wilson.All three have confirmed in writing that they do wish to be considered for re- appointment to the Board. Board of Adjustment Minutes May 7,1990 Page Eleven ADJOURNMENT Copies of the letters will be forwarded to the City Council. She announced that Councilman Vehon would like to address the Board. Councilman Vehon reminded the Board that he is the liaison to the Board of Adjustment from the City Council. He wished to thank the Board for the time they have given and encouraged the members who have not been present at meetings as often to please make an effort to attend as many meetings as possible. He said at any time any Board member has any questions or any item they would like forwarded to the City Council,he would be the appropriate person to deal with that. He added that since the Board does not meet every month he is working through staff to meet on a monthly basis and discuss other matters. He thanked the Board for their time. Chairman Sanchez asked for a motion to adjourn. Board Members Kelley/Leffler -MIS to adjourn at 9:00 P.M. Adriane Brown -White,Executive Secretary Ken anc ez,Chairman