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HomeMy WebLinkAbout1991-06-10 BOA MINUTESPRESENT Mrs.Blatterspiel Mrs.Gardner Mr.Pfeifer Mr.Sanchez,Chairman Mr.Nakagawa,Staff Mr.Meusel,Staff Mr.McMillan,Staff Mr.Bustamante,Pinal County Sanitarian Mr.Alexander,City Attorney Mr.Farrell,Board Attorney Ms.Whitten,Acting Executive Secretary Ms.Holton, Recording Secretary BOARD OF ADJUSTMENT CITY COUNCIL CHAMBERS 1001 NORTH IDAHO ROAD APACHE JUNCTION,ARIZONA JUNE 10,1991 7:00 P.M. ABSENT GUESTS Mrs.Kelley Mr.Schaffer List in Planning Office SYNOPSIS Agenda dated June 10,1991 accepted. Minutes for the Regular Meeting of April 8,1991 were approved. BA -1-91 approved. BA -2-91 denied. BA -3-91 approved with conditions. ROLL CALL Five Board Members present with two members absent as listed. AGENDA Chairman Sanchez called the meeting to order at 7:30 p.m. He asked for a motion to accept the agenda dated June 10,1991. Board Members Blatterspiel/Pfeifer - MIS "Mr.Chairman,I move we accept the agenda dated June 10,1991." Motion passed 5-0-0 (with two members absent). MINUTES Chairman Sanchez asked for a motion to approve the minutes of the April 8,1991 Regular Meeting,as presented. BOARD OF ADJUSTMENT MINUTES JUNE 10,1991 PAGE 2 OF 29 Board Members Gardner/Leffler - M/S "I move that we approve the minutes of the regular meeting of April 8,1991." Motion passed 5-0-1 (Mrs.Blatterspiel abstained as she was not present at the April 8,1991 meeting). Board Members Pfeifer/Gardner - M/S "I move to grant approval to open an Executive Session should the Board determine the necessity to do so." Motion passed 5-0-0. BA -1-91 Chairman Sanchez opened case BA -1-91 to the public and asked for a staff briefing. Ms.Whitten briefed the Board on case BA -1-91,a request of the Zoning Administrator for the Board of Adjustment to interpret the zoning map of the City of Apache Junction in regard to the classification assigned to the property where the U.S.Post Office used to be on North Plaza Drive in Apache Junction,Arizona,or the Board to extend the zoning classification assigned to encompass the entire parcel which was one parcel of land at the time of the enactment of the Apache Junction Zoning Ordinance Chairman Sanchez asked if anyone wished to address the Board on this particular case with no one asking to be recognized.He then asked Ms.Whitten for her recommendation on this case. Ms.Whitten stated that: 1)the staff recommended that the Board confirm that the present zoning map shows the property in its entirety as being zoned CB -2,or if the Board questioned that conclusion,that they extend the CB -2 zoning boundary to cover the entire parcel of land that the Post Office sits on. 2)the parking lot just to the North of the Post Office Wilding is part of another parcel of land and that the property line dividing the zoning will be approximately 11-15 feet north of the edge of the building. 3)parking for the property will be behind the existing building. Chairman Sanchez closed the Public Hearing on this case and asked for the Board's deliberations. BOARD OF ADJUSTMENT MINUTES JUNE 10,1991 PAGE 3 OF 29 Mr.Pfeifer asked: 1)if his impression was correct that this was basically an oversight and a simple mistake in drawing the parcel correctly? 2)how the city lost its zoning? 3)how long the incorrect zoning on this parcel had been in effect? The answers were: 1)Ms.Whitten concurred this was the case. 2)Mr. Nakagawa gave an explanation of how the city lost its 1979 zoning regulations and readopted the city's zoning ordinance in March 1985. 3)Mr.Nakagawa said the line as drawn had been incorrect since 1985. Board Members Pfeifer/Blatterspiel - M/S "I move that the Board allow for the extension of a zone where the boundary line thereof divides a lot,as it is permitted to do under Section 11.0103 and to accept the property in its entirety as CB -2 zoning. The findings are: 1.It was an oversight at the time it was done. 2.It was not the intent nor the purpose of the line -drawer to exclude that 20 feet from the lot. Motion passed 5-0-0. Chairman Sanchez called for a recess at 7:45 p.m. BA -2-91 Chairman Sanchez reconvened the meeting at 7:54 p.m.and opened the public hearing for case BA -2-91.He asked that all participants wishing to speak to stand and be sworn before they address the Board in this matter. He then asked for the staff briefing. Ms.Whitten briefed the Board on BA -2-91,an application of Ronald E.and Susan A.Scott,represented by the law firm of Scult,Lazarus & French,regarding their property on the east side of Meridian Road on the north side of the alignment for 16th Avenue for which the street address is 1533 South Meridian,appealing the decision of the Zoning Administrator as to the legal nonconforming use of this land as a mobile home park. BOARD OF ADJUSTMENT MINUTES JUNE 10,1991 PAGE 4 OF 29 She said the applicants claim the right to a 21 -space park on this parcel of land based upon nonconforming use.Slides were shown of the property in question with existing trailers and structures. City Attorney David Alexander then requested Ralph Bustamante, Sandy Whitten,Craig Meusel and Mike McMillan to be sworn. Chairman Sanchez asked that the applicant or his representative address the Board regarding case BA -2-91. David K.Jones,One Arizona Center,Phoenix,identified himself as representing Ronald and Susan Scott, the owners of the property.He asked the Board to refer to a packet of the factual information such as affidavits,photographs,copy of a temporary business license, county assessor records for the property,and a copy of the site plan to which he would refer. He summarized the property's history stating: 1)the property was rezoned TH zone in 1970 while it was still under the county's jurisdiction. 2)under the 1962 county ordinance,a trailer court was allowed within this zone as long as the property had at least 18,000 square feet and 2,000 square feet per trailer. 4)the property was not actually used to any great extent for trailers until it came under the ownership of the Corbin family as shown in the affidavit from Mr.Corbin and his stepson,Mr.Johnson,who operated the property collectively between the mid -70's until the property was sold in 1990. Mr.Jones referred to three aerial photographs from 1983,1985 and 1987 and said: 1)the photographs showed trailers on the property to determine what areas of the property have a grandfathered right for trailer use. 2)there were two houses,a long tin shed,and trailers on the property and almost all of the property was being used for trailers with the exception of the permanent buildings sites and the pasture area to the north. 3)in the photographs of '83,'85,and '87,and in the photograph the city had on file,the configuration of the trailer's spaces had changed,but what was to be determined was the areas on the property previously used for trailers. 4)one of the issues raised by the city staff is whether or not there's been a loss of grandfathered right through an abandonment of use or otherwise. 5)in order for there to be an abandonment,the owner of the property has to have an intent that the use be abandoned. BOARD OF ADJUSTMENT MINUTES JUNE 10,1991 PAGE 5 OF 29 6)the applicant will show that there has been consistency in intent to continue the trailer park use. 7)another issue was utilities on the property and as a legal matter, the utilities cannot be used to measure whether or not there was a grandfathered right in a particular location or on the property in general as the measuring factor has to be the area of the property that was used for that purpose. 8)the last two property owners have gone through considerable effort over a period of months to clean up the property and because of this effort,he didn't think there could be a showing of abandonment of rights. Mr.Jones concluded by saying that: 1)what is asked is that the Board make two determinations: a)those areas on the property where the grandfathered rights apply;and b)whether or not there were any acts that would result in the loss of those rights such as abandonment. He said one thing to point out is that the pasture areas located at the northeast portion of the site may have been used sporadically for trailers,but at this point the applicant is not laying claim to any grandfathered rights to use that portion of the property. Mr.Jones thanked the Board members and said he would like to reserve the opportunity to rebut any testimony that might be presented. Chairman Sanchez replied that the Board would give him the opportunity for rebuttal. Chairman Sanchez asked for witnesses to speak in favor of the application and there were none.He then asked for those wishing to speak against the application. City Attorney David Alexander called Mr.Craig Meusel who was identified as the city's Business License and Compliance Officer for the last 1-1/2 years. Mr.Meusel related: 1)a history of the business licensing action on the property from the city's records. 2)a list of names (Everett K.Johnson a.k.a.Johnston,Pamela Johnston a.k.a.Johnson,Old Phoenix National Mortgage Company,Dale Cutler,Joe and Rosemary McDaniel,Morton L. Roberts, Andrew and Ann Bishop,Ronald E.and Susan A.Scott, BOARD OF ADJUSTMENT MINUTES JUNE 10,1991 PAGE 6 OF 29 Ralph C.and Patricia L.Johnson)furnished by Mr.Alexander which may have been involved with the property and its licensing. 3)that he had been unable to find a business license issued to any of the names listed. 4)that Mr.Scott had applied in January 1991 for a license to operate trailer rentals at 1533 South Meridian Road,and: a)he was asked to submit a zoning application request to the Planning and Zoning Department. b)the application was denied so the business license was denied. Mr.Alexander asked: 1)if any of the other individuals had made application for a business license according to the city's records? 2)if Mr.Trulen Corbin had ever made application for a business license and if he would have photocopies of those records with him tonight? Mr.Meusel replied: 1)there were no other applications. 2)that currently Mr.Corbin has a business license on file with the city at the 1529 South Meridian address. Mr.Alexander asked Mr.Corbin to identify if the photocopied records were an accurate file of the actions taken regarding the property. Mr.Corbin agreed he found the records correct. Mr.Alexander concluded by requesting that the photocopied records of the Business License Office be placed in evidence. Mr.Alexander asked Sandy Whitten.Interim Zoning Administrator: 1)if she could attest to the adoption dates of the building, plumbing and electrical codes for the City? 2)if she had checked the Building Division's records for building permits issued for 1533 South Meridian? 3)if she had checked the Building Division's records for building permits for 1533 South Meridian applied for,but not issued? Ms.Whitten replied: 1)that the building,plumbing and electrical codes for the city had been in force since 1980. 2)that 1341D permits had been issued for the property: BOARD OF ADJUSTMENT MINUTES JUNE 10,1991 PAGE 7 OF 29 a)Permit No.6634 (Exhibit "0" in the Board packet)issued by the Building Department in August 1985 listed the owner as Arthur Russell who applied for an electrical service at a mobile home space. b)Permit No.10901 issued October 25,1989,listed the owner as Christian English for work described as new service to a mobile home for a range and water heater and no existing structures were listed. 3)that there were two permit applications which had not resulted in a permit being issued: a)on February 16,1988,an application was received from Pamela Johnston listed as owner for PVC pipe installation for electrical line and repair and which stated there were six mobile homes on the property. b)on March 15,1988,an application listed Trulen Corbin as the owner for work described as an electrical light pole. 4)the permits had not been issued because there was no site plan showing what was on the property. 5)she did not find any other building permits or applications for 1533 South Meridian Road. Mr.Alexander then asked Ms.Whitten: 1)if she had reviewed and obtained a certified copy of property assessment records for this property from the Pinal County Assessors office? 2)if the records show that certain improvements had been picked up by the County Assessor for assessment purposes? 3)if there were certain improvements made to the property in 1983 which were subsequently added to the assessment tax rolls? 4)if the city records showed any permits issued for improvements,either electrical or water services,to the property in 1983? BOARD OF ADJUSTMENT MINUTES Ms.Whitten answered: JUNE 10,1991 PAGE 8 OF 29 1)that she had obtained a certified copy of the property assessment records of the property. 2)that improvements had been noted by the County Assessors office for inclusion on the tax rolls. 3)that in 1983 the records showed that there were two (2) mobile home electrical services,three (3)mobile home water services,two (2)1000 -gallon septic tanks,and a 384 -square- foot mobile home addition on the tax roll. 4)that the city records showed no permits issued in 1983 for an addition to a mobile home,plumbing work,septic hookups,new electrical service,nor any of the items listed on the county records. Mr. Alexander requested that the certified County Assessor's records and photocopies of the two 1988 permit applications from the city's Building Division records be admitted for the record. He said he had no further questions. Chairman Sanchez asked if Mr.Jones wished to question Ms.Whitten? Mr. Jones declined,but wished to state an objection for the record: 1)he said the Board was not involved in enforcing building codes or licensure requirements of the city and this case involved the grandfathered rights on the property. 2)he objected to the Board's consideration of the documents presented by Ms.Whitten as it was his opinion that it had nothing to do with the issue of a non -conforming use on the property or whether a grandfathered right exists today. Chairman Sanchez said his objections were noted for the record. Mr.Alexander replied to the objections saying: 1)a "hide-and-seek"game with the lawful authorities does not establish a lawful nonconforming use. 2)that permits for installation of electric, water,septic, etc. should be obtained lawfully from the regulating entities. 3)that the testimony he was eliciting from the witnesses was for the sole purpose of establishing that these steps were not taken in this case. Mr.Jones answered: 1)that if the trailers were situated on the property legally under the Pinal County zoning code and the utilities were in BOARD OF ADJUSTMENT MINUTES JUNE 10,1991 PAGE 9 OF 29 non-compliance,violations should have been noted and the owners given a chance to comply with the regulations. 2)whether this was done or not has no bearing on the matter of the grandfathered rights to have trailers on the property. 3)there is a line of cases where the courts have stated that the zoning status on a property is not defeated by the failure to comply with legal requirements unrelated to the zoning regulations. 4)zoning code issues have to be based on the zoning code and not unrelated regulations. Chairman Sanchez asked Mr.Jones if it hadn't been stated in his report to the Board that the trailers had to be moved from the property in order for this work to be done,and if so,that is what the Board has to consider in making its decision. Mr. Alexander asked Ralph Bustamante.Pinal County Health Department Supervisory Sanitarian: 1)if he was familiar with 1533 South Meridian mobile home park? 2)if had he checked the County records regarding the issuance of any licenses for septic systems at that location? 3)for how many years had the records been checked? 4)was there any licenses for septic systems issued during that time? 5)was there records showing issuance of a license for a travel trailer park? 6)had he personally gone to the location to physically inspect the park? Mr.Bustamante replied: 1)that he was familiar with the development. 2)that he had checked the County records. 3)he had checked records from 1980 through 1983. 4)he had found no licenses for septic system installations during that period of time. 5)during the same time period,there was no record of a license to operate a travel trailer park at that location. 6)he had not physically inspected the location. Mr.Alexander said he had no further questions and asked the Chairman if the witness could be excused as he had come to the meeting from Casa Grande? Chairman Sanchez asked Mr.Jones if he had any questions for the witness.As Mr.Jones said he had none,the Chairman excused Mr. Bustamante. BOARD OF ADJUSTMENT MINUTES JUNE 10,1991 PAGE 10 OF 29 Mr.Alexander asked Sylvia Monroe.Fire Marshall for the Apache Junction Fire District: 1)if she had reviewed the Fire Marshall's records for the address in question? 2)if she had found any communication from October 1989 and a report from February 1990 in regard to the particular location? 3)if she was the author of the reports? 4)was she the custodian of the records? 5)if the photocopies she brought with her were true and accurate copies of the Fire Department records? Ms.Monroe answered: 1)yes,she had. 2)she had found the mentioned reports. 3)no,she was not the author. 4)she is the custodian in charge of the preparation of the communications and inspection reports. 5)yes,they are true and accurate copies. Mr.Alexander asked that the Fire Department records be admitted as evidence. He then asked Mike McMillan.Plans Examiner and Building Inspector for the City: 1)if he had an occasion to inspect 1533 South Meridian in February 1990 and had he done a space -by -space inspection of at that location? 2)how many travel trailers or mobile home units had he found during his inspection? 3)had he taken pictures while doing an inspection on that date? Mr.McMillan answered: 1)he had done an inspection. 2)he had noted 16 units (some travel trailers,mobile home units,buildings and miscellaneous commercial structures)and one empty space which had previously contained a unit.(He then identified notations on a diagram he had drawn of locations for the various structures). 3)he had taken over 100 photographs but the pictures had been lost.(He said he had brought six photographs from the Fire Department files which had been taken at the location on February 5,1990 while he was present). Mr.Alexander asked that the pictures be marked and entered as evidence. BOARD OF ADJUSTMENT MINUTES JUNE 10,1991 PAGE 11 OF 29 He asked Mr.McMillan to tell the Board of the condition of the utilities he had observed during the inspection. Mr.McMillan said: 1)there were electrical cords with insulation worn off that were laying in water. 2)there were water supply lines that consisted of garden hoses that were not graded for potable water and which in some instances were laying in areas where 55 -gallon drums were used for septic tanks causing almost certain contamination of the water supply. 3)there weren't enough electric services to feed into all the units so a line would be spliced and run to another unit and there were two to three units on one service or one breaker. 4)he had not seen any evidence of in -ground septic tanks. Mr.Alexander asked I him if the report he had prepared on his inspections was Exhibit R in the materials given to the Boardmembers and clarified that the date on the report should be 1990,not 1900 as shown. The City Attorney asked Mr.McMillan: 1)if he had found any permits applied for or issued since 1979 for the property other than those submitted by Ms.Whitten? 2)if a city permit was required for all plumbing,electrical and septic installations? 3)if a water system installation would require a permit from the city's Building Division? Mike McMillan replied: 1)he had not found any permits nor applications besides the ones already submitted into evidence by Ms.Whitten. 2)the city requires obtaining permits for the installation of electrical and plumbing connections,but septic systems require only inspection and permit for the pipe to the site while Pinal County handles the actual permitting of the septic tank. 3)a water system installation would require a city permit. Mr.Alexander said he had no further questions of the witness. Mr.Jones asked Mr.McMillan if: 1)though he had not seen evidence of any inground septic systems,could there be septic units there that were overlooked? BOARD OF ADJUSTMENT MINUTES JUNE 10,1991 PAGE 12 OF 29 2)he had issued a violation notice on the items he had observed and written up in the report? 3)if the violation notice had been issued, what would the owner have been required to do? 4)if from a building code standpoint,if the owner had replied to the notice of violation by complying with the city's order to make the corrections and obtaining proper permits,would the park have then been okay? Mr.McMillan replied: 1)yes,there could have been septic units he was unaware of. 2)the city could not locate an owner to whom the violation notice could be issued. 3)the owner would have been required to pay all fees,obtain permits and correct the violations. 4)yes,but it was a "gray" area because the city wanted the park owner to get the permits and clarify the grandfathered rights for the park. Mr.McMillan was excused from further questioning. Chairman Sanchez asked if there was any additional sworn witnesses wishing to speak against the application? Pat Richmond.3050 West 16th Avenue,said: 1)she wasn't sure whether she was for or against the trailer park. 2)she didn't understand how the property could be used as a horse stable operation and a trailer park at the same time. 3)she had purchased her home in February 1981 and there were "scads"of horses,mules and donkeys on the South Meridian property. 4)she had no problem with the establishment of the trailer park as long as it was brought up to code. Mr.Leffler asked: 1)if there were corrals or stables for horses and other animals when Mrs.Richmond observed them or were they just roaming the entire property? 2)how long did the corrals and stables exist after the Richmonds bought their property in the vicinity? 3)were the corrals with horses located in one specific area or over all the property? BOARD OF ADJUSTMENT MINUTES JUNE 10,1991 PAGE 13 OF 29 Mrs.Richmond replied that: 1)there was a barn and several corrals along with several trailers which she assumed were for the workers hired to take care of the horses stabled there. 2)she estimated the horses remained through 1984. 3)she said the horses were confined in several corrals or pastures but specifically in two large corrals or fenced areas,one of which was behind the barn and the other ran almost the full distance of Smythe Drive on the east side of the property. Chairman Sanchez asked if the city had any questions of Mrs. Richmond.As there were none,he asked if there were any further witnesses who wished to speak against. He then asked Mr.Jones if he wished to rebut any of the testimony offered? Mr.Jones said: 1)he again wished to stress that the Board was not charged with enforcement of the building codes or licensing requirements. 2)the requirements of the zoning ordinance in effect prior to the city taking jurisdiction over the property was what was involved. 3)it had not been shown that there was an intent to abandon a trailer park on the property as approved by Pinal County zoning to date. 4)it was important to note that prior to the city's readoption of a zoning code in 1985,any prior uses were grandfathered since the State had said the city had no valid zoning code prior to that date. 5)he was asking that the Board recognize in words that what the 1985 photograph of the trailers existing on the property at that time showed where the grandfathered use was. Sandy Whitten read the Zoning Administrator's recommendation to the Board which stated that: 1)it was the Zoning Administrator's position that,although there may have been a lawful nonconforming use for an unspecified number of mobile homes and/or travel trailers on this land,when the units and their accessory utilities were removed or no longer used,this property was no longer protected under regulations related to lawful nonconforming uses. 2)the replacement of substantially all onsite utilities was not the same as repairs or alterations made to a nonconforming use. BOARD OF ADJUSTMENT MINUTES JUNE 10,1991 PAGE 14 OF 29 3)it was the Zoning Administrator's position that in lawful nonconforming mobile home and travel trailer parks, the nature of a park was that units on the property change from time to time without loss of nonconforming rights. 4)the only things left upon the land that can be dealt with in determining nonconforming uses in a mobile home or trailer park are the utilities which facilitiate the use of the land. 5)the Zoning Administrator believes that the installation of all new utilities is contrary to the old nonconforming use ordinance as well as the present ordinance. 6)although certain nonconforming uses were able to be enlarged up to 100%under the old ordinance,mobile home or travel trailer parks were not allowed to expand. 7)if the Board finds for the applicant there are grandfathered rights,a determination as to the extent of those rights should be established and not allowed to be expanded. Mr.Jones rebutted: 1)the grandfathered rights should not be tied to the establish- ment of utilities. 2)the physical use of the land is what should be used to establish the grandfathered right. 3)from a building code standpoint,it is the intention of the applicant that all violations will be brought up to code. 4)that it was the contention of the applicant that the ten acre requirement was the only area which could not be brought up to code and for which they are seeking a variance. He then referred to a highlighted aerial photograph to show other nonconforming trailer parks of less than 10 -acres in the general area and asked that the Board use this to determine the same nonconformity for the applicant's park. Chairman Sanchez asked for questions from the Board members. Mr.Pfeifer asked Board Attorney Mr.Farrell if the absence of utility permits and septic system permits was seen by the city as the absence of a trailer park? Mr.Farrell answered that this was a determination the Board will need to make after weighing the evidence presented by staff. Chairman Sanchez asked Ms.Whitten: 1)if the property was operating as a legal trailer park prior to 1985? 2)if anytime from 1985 to date,has the mobile home park ceased for less than one year to operate as a mobile home park? BOARD OF ADJUSTMENT MINUTES Ms.Whitten answered: JUNE 10,1991 PAGE 15 OF 29 1)to her knowledge it was not being operated as a legal trailer park as the city had no records of a license for a mobile home park in 1985 and the only evidence was the 1985 aerial photograph which showed a number of units located on the property. 2)that on one occasion for less than one year,all the trailers were removed from the property,"some things were done to the property,"and then trailers started "coming back on the property." Mr.Leffler asked Ms.Whitten: 1)if the definition of a business is one that obtains a permit to operate in the city;pays a business license fee;and renews that business license year after year?He said,"If so,then this trailer park does not exist." 2)why would there be city permits issued to a non-existent business? 3)were there inspections done on the permitted work? Ms.Whitten replied: 1)the first permit issued stated that there was a mobile home space and was for an electrical service with no working drawing required. 2)the second permit stated it was for space #4 and she didn't know why the permit was issued but believed it was after the electrocution accident and was for that unit. 3)there is no note that an inspection was made on the first permit as at the time of the first permit,the city may not have been doing the inspection and giving clearances on SRP connections; the second was inspected and issued an electrical clearance. Mr.Leffler questioned whether the Board could determine grand- father right when he did not find any indication that it was a viable legal business from the evidence. Ms. Whitten said the staff looks for the same type of evidence which would show that it fits in with other requirements of the city in order to determine a lawful nonconforming use.She said in this case however,they had not been able to find a business license for the trailer park. BOARD OF ADJUSTMENT MINUTES JUNE 10,1991 PAGE 16 OF 29 Mrs.Gardner asked Ms.Whitten: 1)at the time the owners were advised of all the violations, were they also informed of a jeopardy to a grandfather right? 2)were they advised what could happen if all the utilities were removed? Ms.Whitten said she believed the Scotts came after a stop work order had been issued and someone attempted to get a building permit and: 1)the person applying for the permit was told that there had been some nonconforming uses at that location and the Zoning Administrator needed to meet with the Scotts to look at a plan showing what was existing and what they proposed to do with the property.This was not done. 2)they were not informed of any loss of grandfather rights because the city had no records showing what was existing on the property at the time nor what was planned so that the city could see how it fit with a nonconforming use. David Jones said he wished to clarify that: 1)the septic systems had remained in place,so not all of the utilities had been removed from the site. 2)the Scotts had received a list of the violations shortly after taking possession of the property and were told they needed to take care of the violations.When they attempted to comply, the city told them you've removed the offending utilities, therefore you've lost your grandfather rights on the use of the land. 3)the city code and the State statutes say that an owner has a right to make reasonable repairs and alterations without losing his nonconforming status. Mr.Pfeifer asked Mr.Bustamante: 1)for what years had he done his research? 2)if he had found any records on a septic system for the property? 3)if no records were found,what does that mean to the County? 4)why would he have been asked to check County records for information on a septic system? Mr.Bustamante replied: 1)he had checked from 1980 to 1983. 2)he found no records. 3)it means there wasn't an approved individual sewer disposal system on the property. BOARD OF ADJUSTMENT MINUTES JUNE 10,1991 PAGE 17 OF 29 4)County records were checked because any mobile home park in the county had to be permitted by the county health department. RECESS Chairman Sanchez called a ten minute recess at 9:32 p.m. RECONVENE MEETING The meeting reconvened at 9:45 p.m. Chairman Sanchez asked if the Board had further questions? Mrs.Blatterspiel asked Ms.Whitten: 1)would the Zoning Administrator have to have a record of the property being used as a trailer park for all those years? 2)how does the Board establish it had been a business and had grandfather rights if there were no records on a license? 3)wouldn't there have to have been some kind of record showing a license for a trailer park operation either in the county or the city in order to grant a grandfathered use as a trailer park? Ms.Whitten replied: 1)that was the reason for asking the various property owners for a plot plan showing existing uses on the property in relation to what was planned. 2)Mr.Corbin had a business license for four mobile homes as testified to by the Business License Clerk,however Mr.Scott had recently applied for a business license which was denied because the city had no record of what was existing on the property.The City questions if there were septic,water and electrical systems to service the units or were there not?If something was there,is the recent work a reasonable alteration,or in fact,is it an installation of all new systems thus building a park from scratch? 3)there should have been licenses for the park: a)since the time the city required a business license. b)from the time the county was in the business of issuing licenses and permits for parks in Pinal County or within incorporated jurisdictions in the county. Mr.Pfeifer asked Mr.Farrell.Board Attorney: 1)if the issuance of a fire code violation constitutes the existence of some kind of a business? BOARD OF ADJUSTMENT MINUTES JUNE 10,1991 PAGE 18 OF 29 Mr.Farrell replied: 1)no,a violation may be issued to a individual or a corporation and the fact that you violate a law or are alleged to be deficient as to a code is not really relevant to the land use issue of a business properly zoned and yet improperly operated in violation of a law or a code. David Jones asked that Mr.Trulen Corbin.1529 South Meridian,be sworn to testify regarding business licenses: Mr.Corbin was sworn and testified that: 1)for fifteen years he was the owner of property at both 1529 and 1533 South Meridian which is all one property. 2)in 1985 he turned the 1533 South Meridian parcel over to his stepson and wife,Everett and Pamela Johnston. 3)in 1989 he leased it back and was issued a city business license to run a trailer court. 4)that he had two licenses,one for each parcel of land. Mr.David Alexander asked Mr.Corbin: 1)if he owned five acres at 1533 and 1547 South Meridian? 2)if he had split the property as stated in his affidavit and the date the property split was made? 3)did he make applications for a business license from the City of Apache Junction? 4)did he experience difficulty in obtaining a business license from the city at one point? 5)if he had operated several businesses on the five acres purchased in 1977? 6)who had put in the water system at 1533 South Meridian? 7)who had put in the septic systems? 8)who had obtained the permit for the septic system installed by Basic Drilling? 9)had he ever obtained a permit for water,electrical or other utility installations on the five acres since he had owned it? 10)who had put in the electrical systems and was there a permit for the work? 11)when had he applied for a business license and had he indicated a specific business operation and address on the application? 12)where had he gone to apply for his business license and did he have a copy of the license? 13)if he had been unable to find a copy and the city was unable to locate any records of a license,was he certain he had applied for one? Mr.Corbin replied: BOARD OF ADJUSTMENT MINUTES JUNE 10,1991 PAGE 19 OF 29 1)yes,he owned the property. 2)he had sold a southerly portion of the property to his stepson Everett Johnston in 1982. 3)he had operated a garage with rentals at 1529 South Meridian from the time he moved there until the city made him "drop" the garage in 1983 because he had sold the property.He said he still runs the rental business and had done so for fifteen years. 4)he sold property to his son-in-law and when he took the property back the city informed him that the garage had been out of existence as a business for some time. 5)he had had a stable for the first two years with trailers, cottages,workshops and a garage.His stepson had had a permit for the stables,but he wasn't sure there was a permit for the trailer park. 6)he said he supposed it was Everett Johnston,but there was already water throughout the property for the horse stables when they bought the property. 7)there were two septic units at the big house and two other units on the property.He said there should be a permit in the records for the one installed by Basic Drilling on the back of the property at the time they situated a trailer. 8)he thought his son-in-law had obtained the permit as his daughter had put the trailer in. 9)he had a permit to put in a light pole which the city had required on additional mobile home spaces. 10)he had put in the electrical services and no permit was obtained because "no one got one back in those years". 11)he had obtained a license for 1533 South Meridian but had not located a copy which he thought he had given to "Leffler"and wasn't certain whether he got it back.but there should be a copy in the City's records. 12)he had gone to the City of Apache Junction's business license office and said that only recently he had discovered his copy was lost and had not been to the city office to obtain another copy. 13)He replied "You bet your life I applied for one."He said he had asked if he could run the two little houses on the one property together on one license and was told he would need to obtain two licenses. Mr.Alexander said he had no further questions. David Jones said he wished to note that Mr.Scott had only the temporary business license as issued to him and had not received any notification from the city that the business license had been denied.He said it was his understanding that the city could not issue a permanent business license until the zoning was cleared and so assumed the license was still "up in the air" rather than denied. BOARD OF ADJUSTMENT MINUTES Mr.Pfeifer asked: JUNE 10,1991 PAGE 20 OF 29 1)which city ordinance required a business owner to purchase a business license? 2)which Pinal County ordinance required a business license? Mr.Meusel answered for the City: 1)City Ordinance 852. Mr.Bustamante answered for the County: 2)he wasn't sure of the ordinance number but it was included in the county sanitary building codes. Mr.Pfeifer questioned Ms.Whitten about both the old and new nonconforming use requirements and the restrictions for a permitted expansion on a nonconforming use. David Jones informed the Board that an agreement with the City Attorney prior to the meeting resulted in an agreement that the old city ordinance requirements were to be the relevant requirements for consideration in this case. Mr.Alexander concurred with Mr.Jones statement. CLOSE PUBLIC HEARING Chairman Sanchez asked if there were any further questions or discussion from Board members,staff or counsel?As there was none, he closed the public hearing at 10:12 p.m.and requested that the Board members deliberate in order to render a verdict in the case. Mr.Pfeifer said an initial fact he found was that no existing business license was held by the current owner. Chairman Sanchez countered that it was only necessary to establish that it was a licensed business prior to 1985. Mr.Pfeifer stated he found no record of an established business in the past nor any records for a county sewer permit. Mr.Leffler countered that the County Tax Assessor had included the sewer improvements on the tax rolls so he didn't understand why the county permit records couldn't be found. Mrs.Gardner said she found the only business that had been established originally was the horse stables and the business had changed many times since then. BOARD OF ADJUSTMENT MINUTES JUNE 10,1991 PAGE 21 OF 29 Mr.Pfeifer said he agreed with the Zoning Administrator that the installation of all new utilities is contrary to the old nonconforming use ordinance and asked "What does that mean within a nonconforming use situation?" Mr.Leffler replied that if the Board finds that there is a grandfathered use,the ordinance would allow them to retain the facilities and even do repairs or renovations to bring them up to code. The Board discussed whether there wasP evidence of abandonment of use when the trailers were moved off and whether there was proof existing of a licensed operation to guarantee the grandfathered right. Mrs.Blatterspiel said she found no evidence indicating there was licensing for a mobile home or trailer park to establish a lawful nonconforming right that could be grandfathered.She said the first evidence she heard about a license was when Mr.Corbin stated he had helped the Johnstons run a mobile home park and had obtained a license from the city to do so. Mr.Leffler added that no records of a license had shown up. Mrs.Blatterspiel said she didn't think it was a question of whether the utilities were removed,but whether it was ever established as a mobile home park in the first place.She said she couldn't see the proof as the property has been used for everything "under the sun." Mr.Pfeifer said he agreed with Mrs.Blatterspiel. He asked Mr.Farrell: 1)if something was to be considered worthy of a grandfathered status,what should be looked at? Mr.Farrell answered: 1)that the answer to the question would be too broad to go into and would take far more time than the Board had,but the focus on the issue of whether there was a business license may or may not weigh heavily on the status.He stated that,for example there are instances in the building code where a business license is not required and for which a grandfathered status could have occurred during the period before 1985 when the zoning ordinance was readopted.He said it's also possible for a property to be zoned for commercial use,be properly built,and still fail to come to the city for a business license.He continued that the problem for the Board BOARD OF ADJUSTMENT MINUTES JUNE 10,1991 PAGE 22 OF 29 is to weigh how heavily the presence of a business license,a plot plan or an improved park plan has to do with how the land was used. Mr.Pfeifer asked about how long a temporary business license was in effect? Mr.Leffler said the license, temporary or otherwise, obtained by the Scotts should not enter into the deliberations as it was after the fact of the events taking place prior to the Scotts obtaining the land. As the Board members said they had no more questions,the Chairman asked if anyone would wish to make a motion. MOTION Board Members Leffler/Blatterspiel - M/S "I move in case BA -2-91 to uphold the Planning and Zoning decision to deny the grandfather rights of this property located at 1533 South Meridian Road. VOTE BA -3-91 The findings are: 1)No basis in fact that the trailer park had a valid business license continuously. 2)No basis of fact that there were facilities provided for an operation of a trailer park as "no electrical permits","no water permits"or "sewer permits"were presented as evidence. 3)No business records were provided other than pictures of the trailer park to show that a business operation existed on the property." Motion passed 5-0-0 (Board Members Kelley and Schaffer absent). Chairman Sanchez opened the public meeting on this case and asked for a staff briefing. Ms.Whitten briefed the Board on case BA -3-91,which was an application from Ronald E.and Susan A.Scott represented by the law firm of Scult,Lazarus &French,regarding their property at 1533 South Meridian Drive on the east side of Meridian Road on the north side of the alignment for 16th Avenue,requesting a variance from Section 15.0802.a.of the Zoning Ordinance as adopted by the City of Apache Junction which requires a minimum of 10 acres to develop a mobile home park.She said this parcel has an area of less than 3 acres. BOARD OF ADJUSTMENT MINUTES JUNE 10,1991 PAGE 23 OF 29 Ms.Whitten presented the staff's findings and recommendations as stated in the Zoning Administrator's Report.She said the staff thought a more appropriate route toward trying to create a park of some type on this property would be to try to rezone the land by planned development rather than to apply for a variance. Chairman Sanchez asked if the applicant or his representative wished to address the Board? David Jones said he represented Mr.and Mrs.Scott and stated that: 1)under the current city government's power of the Board of Adjustments and Appeals,Section 11.0103(d),"the Board is allowed to reduce the building site land area requirements where,in its judgment,the shape of the building site, topography,location of existing buildings,or other conditions make a strict compliance with said regulations impossible without practical difficulty or hardship." 2)he asserted "That's exactly the situation we've got here." 3)under State statute,the Board can consider size as a factor in creating a variance. 4)the property is less than ten acres and given this area,the most practical use of this property is as a trailer park. 5)the stipulations in the report given to the Board stated that the applicant will abide by city,State and county require- ments including septic requirements and size of spaces. 6)the stipulations in the staff's report were: a)#1 stipulated meeting all criteria of Section 15.0802 other than the ten acre minimum lot area. b)#2 states that the applicant must meet all applicable building code requirements. c)#3 states the park must "Meet all requirements of the State and Pinal County in regard to septic requirements." d)#4 requires meeting the requirements of the State's Registrar of Contractor's office. e)#5 are the street dedications. Mr.Jones addressed the stipulations by saying: a)the applicants intend to meet all criteria if the variance is granted. b)if it concerns building code requirements for the utility systems onsite,it's probably appropriate.He said he wouldn't know the construction of the trailers that people might bring on,so to clarify the stipulation he suggested putting "the utility systems on site"after "applicable". BOARD OF ADJUSTMENT MINUTES JUNE 10,1991 PAGE 24 OF 29 C)he thought it was appropriate for new septic units,but said with existing septic units some maintenance or repair to make them functional should be appropriate since it may not be practical to put in new units. d)he felt it was unnecessary to spell out as a condition of approval. e)the dedications should not be required because what the applicant is asking is not going to impose any addi- tional traffic burden on the surrounding streets.He said the Board could make it a stipulation but that after discussing it with the City Attorney,it was his opinion it's probably not enforceable and he asked that it be deleted. He concluded that granting the variance was a question of fairness; there are other properties used for this purpose in the general area and he felt a variance was appropriate in this case. Mr.Leffler asked Mr.Jones: 1)was he was aware that some existing structures on the property,namely a shed that looks like it could collapse and a gutted building,are in a state of disrepair? 2)did the proposal include either replacing or renovation of existing buildings to city code since it would be considered a new project if the variance is granted? 3)did the applicant plan to fence the property as required for mobile home parks and to further upgrade the property? 4)would a better master plan based on existing ordinances be submitted to the city,the county and the fire department so they could coordinate to make a desirable facility out of it? Mr.Jones [after consultation with Mr.Scott]replied: 1)that the applicant's intent was to either upgrade those existing buildings to code or remove them but that he should have the choice of which option to take. 2)that if the buildings remain,they will be renovated. 3)since the code required either opaque fencing or a block wall, it was the applicant's intention to bring it into compliance if the fence is a requirement. 4)that the plot plan will have all the information required by the city to indicate code requirements. He said because of some of the costs involved with things to be done on -site,he would ask the Board for some consideration in the time to accomplish the work. Chairman Sanchez closed the public hearing at 11:10 p.m.for Board deliberations. BOARD OF ADJUSTMENT MINUTES JUNE 10,1991 PAGE 25 OF 29 Mr.Pfeifer stated that he had heard that the easement for Meridian and the dedication on 16th is not going to be part of the applicant's agreement.He then asked Mr.Farrell if it could be stipulated in this particular situation? Mr.Farrell replied that: 1)the whole issue of dedications in connection with land use approvals is one that is very fluid. 2)in the United States Supreme Court cases in Arizona since 1987 only one case had shed any light and it would be difficult,if not impossible,to tell the Board what the reaction of the applicant would be. 3)the Board is free to include the dedication as a requirement, but the applicant has already said that the dedication requirement would defeat the purpose of the variance and deprive them of land and make it difficult if not impossible to use the property. 4)it's the Board's decision but he would recommend discussing it with the City Attorney to determine if he feels the dedication requirements may be "too heavy"for this particular parcel given the amount of traffic impact on surrounding streets. Mrs.Gardner said that: 1)on the issue of dedications,she knows the Board has required it before on just about any commercial business because of traffic concerns. 2)Meridian is one of the city's major roads and 16th has the possibility of being another because past this area,it is open all the way through town. 3)once the park is developed the applicant won't want to move the trailers and if the Board does not require the dedication, how will the city acquire it? Mr.Pfeifer agreed with Mrs.Gardner and asked Mr.Alexander: 1)if Meridian Drive is complete and the Board is looking at the 16th Avenue dedication,does it make a difference what the city plans are for long term road usage and development? Mr.Alexander said: 1)there is an easement for roadway so requiring dedication is rather nebulous as far as Meridian is concerned but he said he didn't know the language of the right-of-way and asked the Interim Zoning Administrator if it was for both "roadway"and "utility"purposes? Ms.Whitten replied that she didn't know the exact wording. BOARD OF ADJUSTMENT MINUTES JUNE 10,1991 PAGE 26 OF 29 Mr.Alexander then asked rhetorically: 1)Are the applicants going to build in the right-of-way?No. 2)What would they lose by dedicating Meridian?He answered he didn't know. 3)He said 16th Avenue is a different issue: a)Sixteenth is eventually going to be pushed through. b)he thought Mr. Jones'rendition/Mr.Farrell's rendition was correct as far as his personal opinion and the hardship it would create,but he didn't want to argue with other members of the staff. Mr.Pfeifer answered that it really didn't answer his question because he was asking about long-term plans for road usage. Mr.Alexander answered that 16th Avenue is going to be put through. Mr.Pfeifer asked isn't the city going to have to have some sort of dedication in order to do that? Mr.Alexander answered "Either dedicate it or buy it". Mr.Pfeifer asked if future road use and roadway development over the city is something the Board had to consider in order to make a determination? Mr.Leffler asked: 1)if it would come under P&Z's existing conditions if a variance was granted? 2)wouldn't the Department of Zoning take that into account? Chairman Sanchez replied that P&Z has no say-so. Mr.Pfeifer said he was still in a quandary because in his opinion, he saw the Board trying to figure out whether to go along with a variance and insist on a dedication for 16th or just turning the whole thing down.He said those were the options and he saw it as a problem. Chairman Sanchez replied that if the Board grants the variance, then both 16th and Meridian should be dedicated.He said "Why go through it again later?" Mrs.Gardner asked: 1)if it's turned down,would they have the option of going to Planning and Zoning? BOARD OF ADJUSTMENT MINUTES JUNE 10,1991 PAGE 27 OF 29 2)with the property being smaller than ten acres,would they be turned down for that reason? 3)is a decision by the Board to grant a variance their only recourse? She then asked Ms.Whitten to repeat what she had said at the end of her statement. Ms.Whitten answered that what staff had suggested was that it was more appropriate to apply for rezoning to Trailer Homesites by Planned Development than it was to apply for a variance. Mr.Nakagawa said: 1)in order to help clarify the issue between what a variance was and how it differed from a rezoning by planned development: a)normally Boards will grant a variance only if the situation satisfies the criteria for a variance. b)the report mentions that the request appears to satisfy only some of the criteria. c)when a person seeks •rezoning,he does not have to satisfy the criteria for a variance,but does need to show that the zoning is in compliance with the general plan for the area. d)as a caveat to the planned development zoning process, they may be granted relief from the ten acre requirement but the process also exacts some rather heavy and expensive stipulations such as requiring the project to go through a design review process,provide for dedications with a provision for off -sites including street improvements. Chairman Sanchez and Mr.Nakagawa discussed what was known about Meridian Drive as an access/exit road to the freeway at the time the general plan was adopted.It was finally determined that what was known was that Meridian Road would not figure in ADOT'S plans as an exit off the freeway. As there was no further discussion,Chairman Sanchez asked for a motion. MOTION Board Members Pfeifer/Leffler - M/S "I move in case BA -3-91 to grant the variance and that the stipulations be made pursuant to A.R.S.9-462.06G to include: 1)The applicants must meet all other criteria of Section 15.0802 other than the ten acre minimum lot area. BOARD OF ADJUSTMENT MINUTES JUNE 10,1991 PAGE 280F 29 2)Meet all applicable building code requirements of the 1982 Edition of the Uniform Building Code as adopted by the City and any other construction codes,local and State, which would be applicable. 3)Meet all requirements of the State and Pinal County regarding septic requirements. 4)That the 50'easement for Meridian be dedicated to the City of Apache Junction and that the South 40'of this parcel of land would be dedicated for 16th Avenue along with a 20'x 20' cutoff at the corner. The findings are: 1)Concurrence with the information as provided by staff. 2)The Board has the authority to make adjustments to the development of property due to area requirements. 3)There are properties across the street,although in Maricopa County,that involve mobile homes or recreational vehicle parks. 4)There are other properties in the general vicinity,inside Apache Junction,which have been used for many years for a variety of mobile home and/or travel trailers. 5)In fact,this land has been used in the past for mobile homes and travel trailers. Motion passed 3-2-0 (Gardner and Sanchez dissented;Kelley and Schaffer were absent). OLD BUSINESS There was none. NEW BUSINESS There was none. INFORMATION AND REPORTS None. SELECTION OF MEETING DATES/TIMES There was a discussion on not holding a meeting in July as some Board members would be on vacation and there were no cases pending. Chairman Sanchez asked for a motion regarding the next regular meeting. BOARD OF ADJUSTMENT MINUTES ADJOURNMENT JUNE 10,1991 PAGE 29 OF 29 Board Members Leffler/Pfeiffer -M/S "I move that we have an executive session at 6:30 p.m.,a work session at 6:45 p.m.and a regular meeting at 7:00 p.m.on August 12,1991." Motion passed 5-0-0. Chairman Sanchez asked for a motion to adjourn. Board Members Leffler/Pfeiffer -M/S "I move we adjourn." Vote was 5-0-0. The meeting adjourned at 11:36 p.m. Sandy Whi ten,Oterim 6 ecutive Secretary Ken Sanchez,Chairman e-/2-91