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HomeMy WebLinkAbout1996-07-08 BOA MINUTESBOARD OF ADJUSTMENT CITY COUNCIL CHAMBERS JULY 8,1996 The regular meeting of the Board of Adjustment of the City of Apache Junction,Arizona was held on July 8,1996 at the Apache Junction City Council Chambers,pursuant to the notice required by law. SYNOPSIS Agenda dated July 8,1996 approved Minutes for April 8,1996 approved. BA -03-96 (Elke Dieffenbach)Denied CALL TO ORDER Chairman Pfeifer called the meeting to order at 7:00 p.m. ROLL CALL Board Members Present:Jim Pfeifer,Chairman John Hartwig Galad Elfandsson Elise Otero Howard Littell Kent Slocum Staff Present: Others Present: BOARD OF ADJUSTMENT JULY 8,1996 PAGE ONE Jim Nakagawa,Planning Division Manager Rudy Esquivias,Associate Planner Jackie LeCount,Recording Secretary Robert &Ruth Henrikson 118 E.7th Drive Mesa AZ Robert &Bess Dieffenbach 4028 E.Coballero Street Mesa AZ 85205 Christi J.Moyle 1024 S.Starr Road Apache Junction AZ 85219 Charles Rineholt 1555 S.Cactus Drive Apache Junction AZ 85219 Elke Dieffenbach 830 S.Starr Road Apache Junction AZ 85219 ACCEPTANCE OF AGENDA APPROVAL OF MINUTES) )BOARD MEMBERS Hartwig/Littell M/S "I MOVE WE ACCEPT THE AGENDA DATED APRIL 8,1996." VOTE:5-0 unanimous The motion carried. BOARD MEMBERS OTERO/LITTELL M/S "I MOVE THAT WE ACCEPT THE MINUTES DATED JULY 8,1996 AS PRESENTED." VOTE:4-1 with 1 Abstention. The motion carried. ELECTION OF OFFICERS) )Chairman Pfeifer passed the gavel to Executive Secretary Jim Nakagawa who called for nominations for Chairman of the Board. Mrs.Otero nominated Mr.Pfeifer for Chairman,seconded by Mr.Hartwig. Mr.Nakagawa called three times for other nominations. Being none,he closed the nominations for Chairman of the Board of Adjustment. He then called for a roll call vote on Mr.Pfeifer's nomination. Vote:5-0 with 1 abstention. Mr.Nakagawa passed the gavel to Chairman Pfeifer who called for nominations for Vice Chairman. Mr.Slocum nominated Mr.Littell. Chairman Pfeifer asked for a second.Being none he called again for nominations for Vice Chairman. Mrs. Otero nominated Mr. Hartwig, seconded by Mr. Slocum. Chairman Pfeifer called three times for any other nominations.Hearing none,he closed the nominations for Vice Chairman of the Board of Adjustment and asked for a roll call vote on Mr.Hartwig's nomination. Vote:5-0 with 1 abstention. BOARD OF ADJUSTMENT JULY 8,1996 PAGE TWO PUBLIC HEARINGS BA -03-96 Chairman Pfeifer opened the public hearing for Case BA -03-96,and asked for staff briefing. Associate Planner,Rudy Esquivias informed the Board that this was a request for a bulk variance from Elke R.Dieffenbach, represented by Charles C.Rineholt. The problem basically has to do with side yard setbacks being nonconforming and normally requiring GR setbacks.The property is an acre and one -quarter just south of Broadway on Starr.I t has high ground along the Starr Road frontage.After about 120-130 feet,everything slopes into a natural land undulation or wash to the west.There are roadway easements on the west, south and east and the property is in a medium density designated area meaning that the properties could be rezoned and broken up into smaller lots.They don't necessarily have to be an acre and one -quarter.Setbacks in the GR zone are 40 feet in front and 20 feet on the side. The property was originally part .of a 2.5 -acre lot which was split a couple years ago.The split was ,accomplished through a simple sketch, map which our ordinance allowed for and the survey was waived at the request of the property owner and applicant at that time.He did not want to go through the expense of a land split so a simple -sketch map was done. In 1993,a permit was applied for to install a manufactured home on the property.A copy of the site plan that was submitted with the building permit is marked "Exhibit A"in the Board's packet.On this map,the home was represented to be installed with the proper setbacks as required in the GR zone.For,that reason.,the permit was approved.20 feet on the sides,40 feet in the rear and they had a lot of room in the back.In absence of a survey,i t appears that the Building Inspector did not actually check for property markers out in the field simply because there were none.In essence,the City accepted the word of the owner and the installer that the home was properly located on the property. The home and: property was then conveyed a couple of times and Mrs.Dieffenbach purchased i t in October,1994.Afterwards,a survey was done;however,the survey was a little incomplete in that the right-of-ways on the south and west were not shown.May 17,1996,Mrs.Dieffenbach applied for a permit.In doing the review for zoning compliance it was discovered that the home was actually 19'feet too close to the easement to the south.That roadway does not actually exist physically.I t is a federally patented easement and is reserved for roadway and utility purposes. BOARD OF ADJUSTMENT JULY 8,1996 PAGE THREE Mr.Esquivias went on to say that several options were discussed with Mr.Rineholt who was representing Mrs.Dieffenbach regarding her side yard setback problems.She was wanting to put up awnings and garage at that time.One option was for Mrs.Dieffenbach to try and seek relief from the seller,Mr.Graser,who warranted the title and should have disclosed any encumbrances or problems with the property.Another option was to physically relocate the home to another location on the lot where it would comply with setback regulations.A third option was to apply for a road abandonment through the City Engineer's office and lastly,Mrs.Dieffenbach was informed that she could apply to the Board of Adjustment for a variance if she felt that she met the criteria for the granting of the variance. In the analysis i t was basically determined that this case did not qualify for a variance.The last section lists out the criteria that are required by State law and by local ordinance for the granting of a variance and the characteristics of the property make it eligible for a variance. 1.The subject site,although i t does contain a sizable land undulation,still appears to have enough accessible high ground to accommodate the home along with any accessories structures problem. 2.The granting of this variance may have an adverse effect on the public i f 9th Avenue were to become a through -street some day.The home would be very close to the edge of the right-of- way. This is a medium density area and property out there could become more dense necessitating the need to open up a road. 3.The granting of this variance may have an adverse effect on the neighborhood in the sense that residents or contractors may perceive by this example that the City is lenient towards illegal or erroneous construction;that property owners or contractors who misrepresent projects will not be held liable.Approving this variance would seem to go against the City's stated goal of improving our community image. BOARD OF ADJUSTMENT JULY 8,1996 PAGE FOUR 4.Practical difficulty and unnecessary hardship in this case appears to have been self-imposed by a previous owner who did not have the property properly surveyed and the home properly placed. The difficulty and hardship,we would argue,is not due to a significant physical constraint overly uncharacteristic of other properties in the area,meaning there are other homes in the area with similar land characteristics which were properly installed. He stated that for those reasons and for those arguments,the Planning Division recommends denial of the variance request because they did not feel they could satisfy the criteria for the granting of the variance. Chairman Pfeifer thanked Mr.Esquivias and asked i f the applicant or representative would like to speak. Mr.Charles Rineholt introduced himself as Mrs. Dieffenbach's representative.He gave the Board a brief summary of his background and apologized for giving them additional case information at the beginning of tonight's meeting. He said he was providing them with copies of photos which supplies pertinent information concerning the boundaries of the property and the affect the variance may have on the community,as well as the characteristics of the property which makes it eligible for a variance. He continued to say that as this property was two and one-half acres several years ago and the land was split.On Page 3 of your packets,second paragraph,you will see the word "represented"in italics. It is part of the discussion of home installation.I t says the home is represented to be installed with the proper setbacks.Please look at LS 93011 which we provided,and compare it to "Exhibit A".You will find that they are one and the same. He said that the situation is that "Exhibit A"shows the point of setback and the placement of the home.The second map does not show the setbacks and the map that does not show the setbacks is the only one Mrs.Dieffenbach ever received.She was not aware of the setbacks until she made application for a building permit. BOARD OF ADJUSTMENT JULY 8,1996 PAGE FIVE He said in his opinion,the City accepted the word of the owner and installer at face value with no additional information available to them concerning the property.He asked the Board to examine the septic map which was provided to them.Referring to a map,he pointed out that this map was the one that Mrs.Dieffenbach had that did not show any setbacks.A map submitted to the City which did have the setbacks drawn in shows the structure.The second map is a map which was acquired by the City at the time the building permit was applied for.A copy of that map was not provided in the packet. Continuing on,he stated that he has an expanded version of the map.The map is dated September,24,1993."Exhibit A"which is dated October 1,1993.In the lower right-hand corner is the signature of the Development Services Director. He explained that the reason he pointed out the two maps is because "Exhibit A"does include the drawings for the proposed home location.The City did a lot more than just accept the word of the owner and installer.The City was involved much more in the process of installing this building.In fact,this map shows that at that particular time,the City drew this map prior to the one you have in your packet and with the Exhibit showing the placement of the setbacks.The City was aware and the inspector was aware that there were easements and setbacks which applied to this piece of property. He felt they were also very aware of the circumstances,the location of the property,the setbacks that were involved and certainly the regulations which require inspectors to inspect. He added that important issues like foundation depth,design,septic systems,electrical work and house location setbacks is really what this process is all about. He pointed out that a copy of a survey made in 1985 was in their packet material marked"Exhibit B". He added that in the history of the subject site,we are told that even this survey did not account for the easements nor did it show the house location.Buildings,as a rule,were never included in land surveys."Exhibit A"shows us that the City was aware of a 20 foot setback prior to the survey,i t appears that the City would have you believe that the survey was conducted but it was impossible for the inspector to do his job before this survey in 1985 was done. He asked the Board to view Exhibit B.It showed a registered land surveyor's mark and in the lower left hand rectangle,which represents the southwest corner of Mrs.Dieffembachs property line,i t says "found rebar 1 foot east"This indicates that there were property corner markers prior to Mrs.Dieffenbach purchasing the property. BOARD OF ADJUSTMENT JULY 8,1996 PAGE SIX He asked the Board to examine a set of photos on the 3rd page of material given to them.A map indicates the markers found by the surveyor.In the lower photo that says "property corner markers"that represents the marker which the surveying Company lists as found on rebar 1 ft.east.The white board shows the position of the marker that the surveyor found when he put his surveyor mark there in 1985.A surveyor mark did exist at the time the City did the inspection for the installation of this house. The top photo,is a photo of the survey marker which exists at the time the house was placed which is at the southeast corner of the property. He pointed out that the surveyor mark that the surveyors placed at a later date is the one which is around the galvanized pipe which is two inches thick and three and one-half inches tall,and is the one that existed at the time of the placement of the home. The point of all this,he said,is that the property markers were in place at the time of the location of Mrs.Dieffenbach's home, and any reasonable person could determine simply by looking at the location of the house which can be seen by the photo,that the house did not fulfil the fifty-three foot setback requirements from the property line that a trained inspector is required to measure.The City now expects Mrs.Dieffenbach,a single mother,to enure a hardship which they could have prevented had the inspector fulfilled his responsibilities when he was out there and checked all setbacks. He stated that the City has offered Mrs. Dieffenbach some options.The first was for Mrs.Dieffenbach to seek relief from the seller. His question to the City is can the possibility of Mrs. Dieffenbach entering into a long litigation which she may or may not win relieve her from the hardship she has to endure because the City failed in its responsibility. Another option was to physically relocate the house.He asked the Board members to look at the last set of photos provided to them.The home is 71 -foot long and 27 feet wide with a crawl space of 4 feet.I t has a septic system which was inspected and approved.The electrical service as well as the water supply would have to be moved and a new crawl space would be required as well as a new foundation constructed.Once the house was moved i t would require backfilling.When this option was considered,several reputable movers said it would cost approximately 19,800.00 to relocate the house. He said the last option was for Mrs.Dieffenbach to seek an abandonment from 9th Avenue.She filled out the necessary papers and prepared a list of property owners that needed to be notified of the request.At a meeting on Wednesday with the Engineering Department he was informed that the City has issued a moratorium on abandonments and the City Council was currently reviewing the abandonment policy and it would be approximately six months before her application was either considered or accepted.There are some ten to twelve BOARD OF ADJUSTMENT JULY 8,1996 PAGE SEVEN applicants ahead of her and in all likelihood the City would ask the property she owns and pays taxes on be appraised at her expense and then pay the City that amount in order to be issued an abandonment.The City would like to know what they are going to get for what they give her. Mr. Rineholt mentioned that having been a former Planning and Zoning Commissioner he suggested to the staff that Mrs.Dieffenbach apply for a variance.She was asked what the special conditions were that would be an unnecessary hardship.He said her answer was that the City permitted the placement of the residence in the existing setbacks and the topography where the house currently sits prohibits its relocation. He said the City stated that they cannot be expected to mark people's property or setback boundaries which Mrs.Dieffenbach never asked them to do.She expected them to do the job they were paid to do. He asked the Board members to review Page 5 of the memo in their packets where i t states that i t is the city's responsibility to ensure that construction or installations comply with the Building Code.He said in this case,they clearly did not do that. He said referring to Diagram D of the City staff report, the City calls the topography that Mrs.Dieffenbach's is on is undulated in a Flood Zone "X"which they feel is not an area of special flood hazards.The piece of property behind her house can be referred to as a wash or gully.When Mrs.Dieffenbach moved to 830 Starr there was a great deal of rain that year. In the top photo is a picture of the. undulation.This was shot from Mrs. Dieffenbach's back yard directly west into her neighbor's back yard.There is approximately an 8 -foot difference in elevation between the bottom of that wash and .the grade Mrs.Dieffenbach's house sits on.The bottom photo shows the adjoining property to Mrs.Dieffenbach's which is flooded because :the prior owners have constructed a rouracross the wash in order to place the home where it is.When it rained,it flooded her neighbor.Mr and Mrs.Dieffenbach had to change the wash back:to the original topography so that the water would go out. He explained that the photo labeled "property entrance" was the first photo which was taken in Mrs.Dieffenbach's northwest corner facing south on Starr.The second photo was taken facing west across Starr, in front of Mrs.Dieffenbach's property.The bottom photo was taken from the intersection of Broadway and Starr facing southwest directly at the home.There is a difference of elevation from the road to the driveway approximately 6 foot.I f the home was to be moved at staff's suggestion,in Exhibit D,the result in the change of the existing driveway-would require that Mrs.Dieffenbach proposed garage would require her to back out onto Starr Road causing potential traffic problems.Granting the variance would completely negate the City's suggestion that the home would become a traffic distraction or hazard because i t is presently exhibited on the page: labeled "property corners". BOARD OF ADJUSTMENT JULY 8,1996 PAGE EIGHT He continued to say if they were to leave the house where i t is,the house would be 15 feet above road grade.If the house stayed where i t is now with a variance,it would be 53 feet from the road edge and if the City were to move the home or require Mrs.Dieffenbach to move the house,i t would only be 40 feet from the road edge. He pointed out that Exhibit D realizes that the topography of the property offers extremely limited options for the location of this home and for that reason he felt it meets the requirements that characterize this property and makes i t eligible for a variance. He stated the City in Part 3 of their final comment would lead you to believe that a ruling to give Mrs.Dieffenbach and her daughter a variance would percceive the City aas being too lenient and willing to give in on building and code regulations. He said that as a Planning Commissioner he learned that every case you hear is different.No one blanket rule ever deals with every situation that you are going to come across. Mrs.Dieffenbach paid $86,000 for her home.The neighbors to the south (photo)is a renter that lives in mobile that does not meet building codes.The property to the west (photo)has campers,storage buildings,trailers and trash.To the southwest,the structures with phone poles to the right and a large saguaro cactus to the left spans the entire alignment of the right-of-way that we are talking about.I t spans the very alignment that Mrs.Dieffenbach has been found fault with because her house is 34 feet away from it. He asked that he be allowed to conclude although he said he realized that he had gotten on a band wagon and he wanted it known that he has not directed anything to anyone in particular. He added that the previous administration of people are no longer with the City who he feels is responsible for this.Mrs.Dieffenbach wants to encourage the City to stick to its stated goals and improvements. Sadly,the City did not take the time to complete the inspection i t was required to do.I t did not hold the property owner or the contractor to its mutual agreement that the City had with them.The City, refuses to see the characteristics of the property and how those characteristics make it eligible for a variance.The variance can only have a beneficial effect on the community and not any adverse effect on the public.Unnecessary hardship would result from having to comply with the Zoning Ordinance and the location is questionable. BOARD OF ADJUSTMENT JULY 8,1996 PAGE NINE Chairman Pfeifer thanked Mr. Rineholt and asked if there was anyone in the audience who wished to speak in favor of the request. Robert Dieffenbach, 4028 E. Caballero, Mesa,stated that his son is dead and leaves two children.The house was there when he bought it and it was sanctioned by the City,okayed by the City and inspected by the City. Now the City expects my daughter-in-law to do all these things.I wish that people would realize the situation she is in now which is not her fault.She has upgraded the electric and is trying to do everything that is right.She would like to be able to build a garage for the car.She cannot do everything the City is asking of her. He continued to say that i f there was a problem,it should have been taken care by the people who owned the house at that time. Chairman Pfeifer thanked Mr.Dieffenbach and asked i f anyone wished to speak in favor of the request. Bess Dieffenbach, 4028 E. Caballero, Mesa, explained that her son and daughter-in-law purchased the house and was committed to living in Apache Junction.They did what they could in the very short time that they had. Elke is left with two children and is a working mother and trying to do the best she can with the house. She stated that she understood the problems the Board faces and asked that they understand the problems Elke is facing and come to a right decision. Chairman Pfeifer asked i f there was anyone else who wished to speak in favor of the applicant. Kristi Moyle,1024 S.Starr,stated she is a close neighbor to Mrs.Dieffenbach and has no problem with the granting of a variance. Chairman Pfeifer thanked Ms.Moyle and asked if anyone else wished to speak in opposition.There being none,he asked i f any of the Board members had any questions of those who spoke in favor. Mr. Elflandsson directed his question to Mr. Rineholt and stated that he wanted to see if he could capsulize portions of his presentation. He said that basically what I got out of this was that the City had nothing to go by,no plot plans prior to a sketch that was submitted but in fact there were previous documents on record. Mr. Rineholt answered that that was the impression we had gotten from the packet which you received and we received,stating the City was going to recommend denial of the variance. BOARD OF ADJUSTMENT JULY 8,1996 PAGE TEN He said the City felt the inspector was unaware of where the boundaries were and that the City was not responsible for putting markers there.What we wanted them to do was take a measuring stick and look at the property lines that were there and measure where the building was. Mr.Elflandsson asked Mr.Rineholt how he gained access to the plans. He replied that the staff was very helpful and gave him a second set of plans.Some experience is needed in the construction business to catch every little thing and of course,this was our focus of attention.This is the only thing that we focused on where as the city department had a lot of things to focus on. Referring to a map,he said it indicates that they found one marker saying 1 foot east and being one foot east directly on that line would have no affect on that 20 -foot setback.If it were one foot north or one foot south then you could say there was a problem with the easement that we're talking about which runs parallel to that line; He said he physically went out to the property and walked the line. Mr.Elflandsson apologized for cutting Mr.Rineholt short but he was curious as to when he received the plans from the City if he also inquired if there was an inspection card. Mr.Rineholt answered that there was a list of requirements that the building inspectors have to go by.For example,they cover the depth of the footer,whether the footer is compacted or whether the soil is solid or not.There are lots and lots of variables which the inspector is required to cover and check. He said he did not request a copy of the paper work but was certain it existed somewhere.He had to look at the foundation and know where it was and how deep it was.He said the way mobiles work is until that mobile arrives at the space, the Department of Transportation is responsible for it.When it arrives at the space,someone from the Transportation Department will come and check the serial number and make sure the title Mrs.Dieffenbach had indeed does match and he will assign a certificate of fixture and at that point it is the City's responsibility to make sure the building codes are regulated. He added that it is not this particular administration but an inspector that is no longer with the City. Mr.Elflandsson said he would like to ask one of their esteem colleges,Elise if when a property goes through a title search and they guarantee that they are free of encumbrances - this property changed hands twice. BOARD OF ADJUSTMENT JULY 8,1996 PAGE ELEVEN Mrs.Otero asked Mr.Rineholt if a title search was used when they purchased the house. Mr.Rineholt answered yes, Mrs.Dieffenbach and him went over that today and unfortunately they have a schedule A and B with her particular Title Company.The Title Company says Schedule A - - - - -Schedule B (paper shuffled) What her title insurance does not cover are problems which arise within this easement area. The double problem is that the problem isn't strictly within the thirty-three foot area.It is within the twenty foot setback. Mrs.Otero explained that there is a term in real estate called "caveat emptor" which means buyer beware.If those easements were listed on the title search i t would have been up to the buyers... Mr.Elflandsson said this particular title says the easements are not something that they looked at.We are not talking easements, we are talking about the regulated setback. Chairman Pfeifer asked if anyone else wished to speak in favor of the request. Elke Dieffenbach 830 S.Starr Road stated that she and her family moved to Apache Junction from Alabama because they felt it was a good place to raise children.We saw the home and area and fell in love with it. She said the only thing she would like to do is fulfill their dreams and make Apache Junction her home. Mrs. Dieffenbach said she understood what Mrs. Otero said in regards to "buyer beware"however,they did a title search and thought they had crossed all their t's and dotted all the I's.(tape not clear) She said the City told her it was their responsibility. We were not in the state of Arizona when (tape not clear) She expressed her desire to remain in Apache Junction and raise her two daughters and hoped that the Board would understand her problem and come to a good decision. Chairman Pfeifer thanked Mrs.Dieffenbach and asked i f there was anyone else that wished to speak in favor of the request. (name not clear)930 S.Starr Road -said she is the closest neighbor to Mrs.Dieffenbach.Her property is a show place and she has no problem with Mrs.Dieffenbach requesting a variance. BOARD OF ADJUSTMENT JULY 8,1996 PAGE TWELVE Chairman Pfeifer asked if there was anyone else that wished to speak in favor of the request.There being none,he asked if the Board had any questions of the speakers in favor of the request.He then asked if there was anyone who wished to speak in opposition of the request. He asked if any of the Board members or staff had any questions. Mr. Elflandsson said that given the fact that the quarter marker rebars were actually in place as far back as five years ago,it is not the city's responsibility to mark off setbacks for the property owner or the boundaries.Would it be reasonable to assume that with the proper information available with the quarter markers that the city inspector should have made note of the fact when the trailer was actually in place and the house foundation was put down that it was perhaps in the twenty -foot setback not so much setting down the lines for the property owner but informing them that they had exceeded the boundaries that were illegal at the time. Mr.Esquivias said that he did go through the installation file and there was no mention in the file concerning setback markers being found.He did not believe the inspector's primary responsibilities are to locate the rebar.Sometimes they are visible and sometimes they are not.A lot of property in Apache Junction are not surveyed. He continued to say that in this case,the building inspector's primary duty is to make sure the home is properly installed, electric,gas and sewer hookup,making sure the footings are done correctly and the pylons are placed right.He was going by what the installers had already done and assumed the pylons were put in the right place. Mr. Pfeifer asked Mr. Esquivias if just because there are stakes out there,can the building inspector assume they were in the right place. Mr.Esquivias answered that stakes are of different kinds.They are not always survey stakes.Survey markers have a certain look to them. Mr.Elflandsson asked would an inspector,in your judgement,look for survey stakes on a 75 X 120 lot. Mr.Nakagawa said that perhaps he could shed some light on that question.For years basically,we have been trying to require surveys to locate proper pins.Over the years there has not been that much of community support to require surveys.At the moment, we do not have a requirement to check those setbacks. Mrs.Otero asked that on Exhibit A it shows the thirty- two foot setback and a twenty -foot area.Is that the way the mobile home is sitting today?Is there an (words not clear)at one point of the mobile to the gross property boundary. BOARD OF ADJUSTMENT JULY 8,1996 PAGE THIRTEEN Mr.Esquivias replied no,i t is showing the nearest corner of the mobile to the center of that line to the south where it is actually thirty-four feet.That would put the property one foot inside their net property line to the south. Mrs.Otero asked what exhibit A had to do with it. Mr.Esquivias said that Exhibit A is part of the original mobile home installation permit.This is what was submitted when the installer or property owner at that time came in to apply for the mobile home permit.They gave us a drawing and said this is how we are going to set it.The plans examiner at that time looked at the drawings to make sure i t conformed to City setbacks and she signed it off as okay. Mr.Slocum commented that the City had sanctioned it. Mr.Esquivias said the City approved a site plan which showed the home to be placed correctly. Chairman Pfeifer added that based on the measurements indicated here,the City okayed it. Mr.Esquivias said that is correct. Chairman Pfeifer commented that the house had been checked out. If the building inspector had gone out in the field and determined that this was off,he would have stopped the internal process. Mrs.Otero asked what would happen if she were to set up a mobile and were to come out 19 feet. Mr.Nakagawa answered that he does not think that the Building Inspector to this day goes out and checks the setbacks. Mr Esquivias added that the Building Official has personally commented to him that they can't check setbacks unless the property owner stakes out the property and runs strings or whatever,then they will check the setbacks.Trying to locate the property boundaries is not the responsibility of the Building Inspector.A property owner should know where his property boundaries are and what easements affect his property. Chairman Pfeifer agreed. Mr.Slocum asked through what means would he do this. Chairman Pfeifer said the owner would have to get it surveyed. BOARD OF ADJUSTMENT JULY 8,1996 PAGE FOURTEEN Mr.Esquivias stated that the owner had a survey done about a year after the property was purchased. 1995. Mr.Slocum asked if the date of the survey says 1985 or Mr.Esquivias answered that it should read 1995. Mr.Elflandsson was a bit confused but stated that he believed his question was answered that there were no stakes there,but if you didn't search for them,how would you know they were not there. Mr.Hartwig said that is right. Mr.Esquivias answered that he thought what the survey shows is that there was one rebar at the southwest corner.These other rebars are set by the surveyor when the survey was done.The other marker on the southeast corner that Mr.Rineholt referred to was not found by the surveyor when it was surveyed.He pointed out the only point that is pre-existing. Mr.Littell referred to Exhibit C and asked if the home was moved to the north it would have the proper setbacks on the north side and the proper setback on the south side.When they set it in there,they set it incorrectly according to their drawings.Is that correct. Mr.Esquivias answered that according to the plans submitted,that is correct. Mr.Slocum said the City gave it a final inspection. Chairman Pfeifer said not for accuracy on setbacks. He stated that he was under the impression that according to the drawing provided,if you set your house up according to the drawing,the City okays it. Chairman Pfeifer asked if there is no one else who wishes to speak or ask any other questions,then this meeting is closed to the public. Mr.Rineholt asked if he could make a brief statement of rebuttal. Chairman Pfeifer said yes but make it brief because we allowed you more than 5 minutes. Mr. Rineholt stated that Mrs. Dieffenbach testified that there were these survey markers and that the 3 1/2"pipe was out there.If the inspector could not see that 3 1/2"pipe from the road,he must have been blind and you can also tell from that 3 1/2"pipe that the house was well outside the boundaries of where it should be. BOARD OF ADJUSTMENT JULY 8,1996 PAGE FIFTEEN He continued to say that he would like them to consider the fact that when Mrs.Dieffenbach's insurance gets wind of that she cannot get a building permit,she is prohibited from selling her house.She now knows there is an encumbrance.Mrs.Dieffanbach's home is a $60,000 Home.I wish you would consider this. Chairman Pfeifer asked if there were any other members of the Board who wished to speak. Mr.Elflandsson stated that when he was walking the property,he noticed where the stakes were and being familiar with 5 -foot burials and things like that,it looked like the power poles were set 5 feet from the boundary sticks.The City may not even have been incorporated then but did SRP go by that original survey and that stake.He questioned where they put their poles down. Mr. Nakagawa commented that he had no idea when the poles were set up on this property. He said in those days SRP sometimes were good about laying out their surveys.Other times we discovered because of these 66 -foot wide easements,all roads and utilities could go in that 66 -foot wide easement. Sometimes we found poles right smack in the middle of the easement. The utility companies usually have their lines within the easement,sometimes not even within the easement. Chairman Pfeifer closed the meeting to the public and asked the Board members to consider the facts. Mr.Nakagawa noticed the public getting up and starting to leave and remarked that he thinks the public are under the mistaken impression that they have to leave the room. Chairman Pfeifer assured them they did not have to leave and welcomed them to stay.He explained that he was not going to ask for any further input from the public. He said you are welcome to stay and hear our deliberations and comments and voting procedure.Your opportunities have come to an end here. He asked the Board members to review pages 6 & 7 of the transmittal before providing a motion.To grant a variance,certain situations have to exist. Mr. Littell asked if there was away the Board could make a suggestion or recommendation to the City to assist these people in abandonment proceedings. BOARD OF ADJUSTMENT JULY 8,1996 PAGE SIXTEEN Mr. Nakagawa replied that it was a related but different issue and policy question for the City Council.What they are probably grappling with is the idea of providing for sufficient rights -of -way in order to handle any kind of traffic and if there is an increase in density due to rezoning,perhaps the rights -of -way might be required.If this is in the area of where it is difficult to construct roads,to preserve the topography of an area,preserve washes,then perhaps an abandonment might be appropriate.Again,these are all City Council policy questions. Mr.Littell said he thought just a recommendation although he is aware that there was nothing they could do about it.He felt that perhaps the Board could help them instead of them waiting six months. Mr. Nakagawa explained that under normal procedures their request would have to go before the Transportation Board which then forwards its recommendation to the City Council.He said he was not aware of any official moratorium on receiving an application on a road abandonment. Chairman Pfeifer entertained a motion and asked the Board members to review the information on pages 6 & 7 of the staff transmittal. Mr.Hartwig stated that he does not see where characteristics of the property does not make it eligible for a variance given the fact the wash is in the back. He said in his opinion,the variance would have no adverse affect on the public. He continued to say that he noticed that when he walked the property where the road would come by,it was cut next to the existing property and has a good 10 to 15 feet which helps.The property owner on the other side of Starr would have to be compensated and he saw no problem there. It obviously is not going to have any adverse affect on the neighborhood. He felt the City has a problem there,all the way down. There are mobile structures,and fences and he did not believe the rationale there is a hidden agenda here to make this a corner stone case for future plans for Starr Avenue. Practical difficulties or unnecessary hardship would result by having to strictly comply with the Zoning Ordinance.Consideration should be given due to the fact that there would be moving costs,insurance costs and the house would be totally unusable after it was taken apart. BOARD OF ADJUSTMENT JULY 8,1996 PAGE SEVENTEEN MOTION ON CASE BA -3-96) )Board Members Hartwig/ "I MAKE A MOTION THAT THE APPLICANT'S REQUEST FOR A VARIANCE BE APPROVED". Chairman Pfeifer asked if his motion was based on what he just said. Mr.Hartwig said that and other things but I was just cutting i t short. Mr.Pfeifer stated that in this situation we must not be short,we must be specific. he just said. cutting i t short. BOARD MEMBER SLOCUM/ "I MOVE THAT IN CASE BA -3-96 THE MOTION BE AMENDED TO READ IT WILL CREATE A HARDSHIP WITHOUT ANY PRECEDENCE OR FUTURE PREJUDICE". Chairman Pfeifer said let me focus on what the characteristics of a variance must do.They are listed on top of Page 6. 1.The characteristics of the property make i t eligible for a variance.What we are hearing or seeing is a difference of opinion,but we need to make sure the characteristics of the property make i t eligible for a variance.The staff is telling us that,although i t does contain sizable amounts of land and variation and fluctuation,which is my interpretation of undulation,it still appears to have enough accessible high ground to comfortably accommodate a relocated home.I f i t meets the requirements for a variance,then i t can't fall into category #1. 2.The variance has no adverse effect on the public.What we are hearing from staff is that it has a potentially adverse effect in regards to encroaching upon the 9th Avenue access.A street is necessary there in the future. BOARD OF ADJUSTMENT JULY 8,1996 PAGE EIGHTEEN 3.In order to make requirements for a variance,you would have no adverse effect on the neighborhood.One neighbor has no adverse effect.Staff is indicating that if this was allowed,it would be setting a precedence. 4.In order to meet the requirements in No. 4,practical difficulties or unnecessary hardship would result by having to strictly comply with the Zoning Ordinance. Staff is suggesting that the hardships of the owners of this land that are involved now are self imposed hardships. Mr.Hartwig stated that in many respects he can agree with all the arguments brought forth by the criteria.He said the problem he is having is with the clear cut denial of the motion. He said that staff is suggesting that the hardships of the owners of this land that are involved now are self imposed hardships.He said he was having a problem with the clear cut denial of the motion. There is an implication of City responsibility here and not so much as Mrs.Dieffenbach is being victimized,but I suspect the City is being victimized as well.I think if the City is going to insist that variances and setbacks be met,then they ought to start taking some sort of responsibility to see that they are met. He said under this specific circumstance,we can make a decision to approve the motion with some very specific recommendations regarding the rest of the neighborhood.Everybody's interest will be served. Mrs. Otero stated that she sees this happening every day, people coming here and buying large pieces of land.That easement was disclosed and the title before it.They were not knowledgeable enough to do their own investigation to know what the setbacks were.The problem was there when they bought i t but they were not made aware of it. Mr. Slocum commented that you are the real estate agent. You heard both sides. Mrs.Otero said she did not sell them the property.We see people doing this continually and when we sell an acre and one -quarter we tell these people this is a gross acre and one -quarter.When they saw the title report showing a 33 -foot easement,that should have been the first red flag to go up. Mr.Slocum said a lot of people don't realize that. BOARD OF ADJUSTMENT JULY 8,1996 PAGE NINETEEN Mrs.Otero said that is not the issue.The issue is the home was already placed there.The problem existed and they had a sellers disclosure form.They would have been informed.It is their obligation to search that property for problems in the title.The title company made them aware of the existing easement. Mr.Slocum asked if there was no responsibility to the real estate agent. Mrs.Otero said we do not know that.That is not the factor here.The factor is that if we grant this variance,who is to say if I go out and buy an acre and a quarter and place something on it no matter where I want it and then come before you when I want to build something that isn't in compliance. More discussion followed amongst the Board members. Mr.Elflandsson stated that Mrs. Dieffenbach did not buy the property and then submit building plans.She purchased the home the second time around from a second owner.There is somewhat an implied reasoning that this is safe.It has been to a title company twice.Granted,we know what the City has to do.I'm from Los Angeles and I know how strict the codes could be. I believe this is different.The house was also there with two previous owners. He said he would like to respond to item #3.It says the granting of this variance may have an adverse effect on the neighborhood.In a sense,contractors may perceive by this example that the City is made up of illegal erroneous construction.That is true.It can only be perceived by the neighborhood and community that the Board of Adjustment for the City is sensitive no matter what the incident is even i f the prior owner really is not liable. That is how I look at it. the property. Mrs. Otero said the value is still there and she can sell Mr.Elflandsson asked how can she sell i t now. Mrs. Otero said all she has to do is divulge to the buyer that her property has not lost value but that she cannot build a garage there. Mr. Elflandsson said her home has to be moved doesn't it. Chairman Pfeifer answered no, only if she wished to build a garage. Mr.Elflandsson said he was under a misconception.He thought with the variance,she had to move the house. added on a garage. Mr.Slocum added that with the variance she could have Chairman Pfeifer stated that there is a motion on the floor and i t has been amended. BOARD OF ADJUSTMENT JULY 8,1996 PAGE TWENTY He pointed out that you must say I MOVE THAT THIS VARIANCE BE GRANTED BECAUSE 1,2,3,4. Mr.Nakagawa stated that Mr.Hartwig had made the motion and to keep the slate clean Mr.Hartwig should restate the motion and cite the reasons. Mr.Slocum reminded the staff to record the motion. Chairman Pfeifer asked Mr.Hartwig to repeat his motion and be specific. Mr.Hartwig asked that his motion be withdrawn. Chairman Pfeifer said the chair will accept the withdrawal of the motion. He asked for another motion. Mr.Hartwig explained that the thing that still troubles him is the original survey,and he understands i t is not the present administration.He said he was torn between the fact that the property went through two previous owners and two title searches.He said she filed a permit which is the right way to do it when we know a lot of things were done in this City and nobody worried about permits.She finds out her property is encroaching a setback and she is denied further improvement of her property.He said that bothered him. Chairman Pfeifer said that it was probably bothering all of us. Mr.Elflandsson said he can't see item #4 concerning undue hardship.That is why I am laboring over a motion.I was under the previous position that she was going to have to move her structure.Now the situation is that she cannot put on any improvements. Chairman Pfeifer said she cannot put the garage on as requested. MOTION ON CASE BA -96-03) )Board Members Littell/Otero -M/S "I MOVE THAT IN CASE BA -3-96,A REQUEST FOR A VARIANCE FROM SECTION 15.0107,TO REDUCE THE SIDE YARD SETBACK FROM 20 FEET TO 1 FOOT,BE DENIED FOR THE REASONS BEING: BOARD OF ADJUSTMENT JULY 8,1996 PAGE TWENTY ONE I)THE SUBJECT SITE,ALTHOUGH IT DOES CONTAIN A SIZABLE LAND UNDULATION,STILL APPEARS TO HAVE ENOUGH ACCESSIBLE HIGH GROUND TO COMFORTABLY ACCOMMODATE A RELOCATED HOME ALONG WITH ANY ACCESSORY STRUCTURES. 2)THE GRANTING OF THIS VARIANCE MAY HAVE AN ADVERSE EFFECT ON THE PUBLIC IF 9TH AVENUE WERE TO BECOME A THROUGH -STREET SOME DAY.WITH THE HOME BEING DANGEROUSLY CLOSE TO THE EDGE OF THE RIGHT-OF- WAY,IT COULD BECOME A TRAFFIC DISTRACTION AND/OR HAZARD. 3)THE GRANTING OF THIS VARIANCE MAY HAVE AN ADVERSE EFFECT ON THE NEIGHBORHOOD/COMMUNITY IN THE SENSE THAT RESIDENTS OR CONTRACTORS MAY PERCEIVE BY THIS EXAMPLE THAT THE CITY IS LENIENT TOWARDS ILLEGAL OR ERRONEOUS CONSTRUCTION;THAT THE PROPERTY OWNERS OR CONTRACTORS WHO MISREPRESENT PROJECTS WILL NOT BE HELD LIABLE.APPROVING THIS VARIANCE WOULD SEEM TO GO AGAINST THE CITY'S STATED GOAL OF IMPROVING OUR COMMUNITY IMAGE. 4)PRACTICAL DIFFICULTY AND UNNECESSARY HARDSHIP IN THIS CASE APPEARS TO HAVE BEEN SELF-IMPOSED BY A PREVIOUS OWNER WHO DID NOT HAVE THE PROPERTY PROPERLY SURVEYED AND THE HOME PROPERLY PLACED. THE DIFFICULTY AND HARDSHIP,WE WOULD ARGUE,IS NOT DUE TO A SIGNIFICANT PHYSICAL CONSTRAINT OVERLY UNCHARACTERISTIC OF OTHER PROPERTIES IN THE AREA. Mr.Elflandsson asked if Starr Road is not abandoned and a road is put there would Mrs.Dieffenbach be required to move her home. A discussion followed between Mr.Nakagawa and the Board members concerning what options Mrs.Dieffenbach would have in the future should Starr Road be put in. Chairman Pfeifer read the motion again to the Board made by Mr.Littell and seconded by Mrs.Otero. The vote was three for denial and three for approval. Mr.Nakagawa explained what occurs when there is a dead- lock vote. Chairman Pfeifer called for another motion. BOARD OF ADJUSTMENT JULY 8,1996 PAGE TWENTY TWO. MOTION ON CASE BA -3-96) Board Members Elflandsson/Hartwig -MiS "I MOVE THAT WE ALLOW THE VARIANCE WITH AN AMENDMENT THAT THIS IS NOT DEEMED TO BE SETTING A PRECEDENCE". VOTE:3-3 The motion failed.The variance is deemed denied. OLD BUSINESS None OLD BUSINESS Mr.Nakagawa discussed formats for agendas and staff reports. REQUEST OF STAFF 1.Suggestion to Building Division to start making some procedural changes in regards to setbacks. INFORMATION AND REPORTS SELECTION OF MEETINGS,TIMES,LOCATIONS AND PURPOSES EXECUTIVE SESSION ON AUGUST 12,1996 WORK SESSION ON AUGUST 12,1996))Board Members Littell/Hartwia M/S "I MOVE THAT THE NEXT EXECUTIVE SESSION BE HELD AT 6:30 P.M.ON AUGUST 12,1996 IN THE DEPARTMENT OF DEVELOPMENT SERVICES CONFERENCE ROOM: AND THAT THE NEXT WORK SESSION BE HELD AT 6:45 P.M.ON AUGUST 12,1996 AND A REGULAR MEETING BE HELD AT 7:00 P.M.IN THE CITY COUNCIL CHAMBERS" VOTE:5-0 The motion carried. ADJOURNMENT ) )There being no further business to discuss,and with no objections,Chairman Pfeifer adjourned the meeting at 7:48 P.M. .Nakagawa,Executive Secre ames Pfeifer,'ma