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HomeMy WebLinkAbout1998-07-13 BOA MINUTESBOARD OF ADJUSTMENT AND APPEALS MEETING OF JULY 13,1998 CITY COUNCIL CHAMBERS 7:00 PM The regular meeting of the Board of Adjustment and Appeals of the City of Apache Junction,Arizona was held on July 13,1998 at the Apache Junction City Council Chambers,pursuant to the notice required by law. SYNOPSIS Acceptance of Agenda dated July 13,1998 Election of Chairman and Vice Chairman Acceptance of Minutes dated July 7,1997 BA -1-98 -Applicant's request approved. CALL TO ORDER ROLL CALL Acting Chairman Pfeifer called the meeting to order at 7:00 PM. Board Members Present:Jim Pfeifer,Acting Chairman Mari Gardner,Acting V.Chairman Howard Littell Elise Otero John Hartwig Kent Slocum Staff Present: Others Present: Rudy Esquivias,Zoning Administrator R.Joel Stern,City Attorney Jackie LeCount,Recording Secretary Bill Mihailov Amy Mihailov Bill Wilson ACCEPTANCE OF AGENDA BOARD MEMBERS GARDNER/SLOCUM M/S "I MOVE WE ACCEPT THE AGENDA DATED JULY 13,1998 AS PRESENTED". VOTE:6-0 The motion carried. ELECTION OF OFFICERS) )Acting Chairman Pfeifer turned the meeting over to the Executive Secretary,Rudy Esquivias. Mr.Esquivias explained to the Board members the format for electing a new Chairman and Vice Chairman.He stated he would entertain any nominations for the position of Chairman. office of Chairman. Mrs.Gardner nominated Acting Chairman Pfeifer for the Mrs.Otero seconded the nomination. Mr.Esquivias called 3 times for other nominations for the office of Chairman.There being none,a roll call vote was held. VOTE:Unanimous. The nomination carried. Chairman Pfeifer stated that he would entertain any nominations for the position of Vice Chairman. Vice Chairman. Mr.Littell nominated Mari Gardner for the position of Mr.Hartwig seconded the nomination. Chairman Pfeifer asked if there were any other nominations for the office of Vice Chairman.There were none,a roll call vote was held. VOTE:Unanimous The nomination carried. APPROVAL OF MINUTES) )Gardner/Slocum M/S H I MOVE THAT WE ACCEPT THE MINUTES OF JULY 7,1997 AS PRESENTED". BOARD OF ADJUSTMENT AND APPEALS JULY 13,1998 PAGE 2 VOTE:4-2 with Mrs.Otero and Mr.Hartwig abstaining because they were absent on that meeting date. PUBLIC HEARINGS AND POSSIBLE ACTIONS Chairman Pfeifer introduced Case BA -1-98,an appeal of the zoning administrator's decision and request for interpretation of the R1-43 Zone Regulations pertaining to lot size and horses. He explained the General Conduct Rules. City Attorney Stern stated that Arizona Revised Statutes §9-462.06 sets forth the powers of the Board of Adjustment and he recommended that the Chairman has the power to administer oaths and take evidence;and if there is a presentation from staff,that the applicant be given the opportunity to cross examine staff on that issue. Chairman Pfeifer said that is something above and beyond anything we have ever done but if that is what you are recommending,that's what we'll do. City Attorney Stern explained that from his experience he has been involved in several cases where the oath was not given and there was a law suit.This should eliminate that kind of activity. Chairman Pfeifer stated that a member of the Board may have a conflict of interest and wished to state that conflict. Mrs.Otero pointed out that she has not been directly involved in this situation but is familiar with it.The property was sold through her place of employment.She preferred to abstain from voting on this case.(BA -1-98). Mr.Slocum asked if Mrs.Otero had to leave the podium. Chairman Pfeifer replied that Mrs.Otero will not have any input and will say nothing during the Public Hearing but she will remain at the podium. Mr.Esquivias introduced himself as the Zoning Administrator and briefed the Board on Case BA -1-98,an appeal of the Zoning Administrator's decision. The Board is also asked to decide an issue of interpretation. BOARD OF ADJUSTMENT AND APPEALS JULY 13,1998 PAGE 3 He continued to say that this is a question about a parcel of land in Section 15 which is in the upper northeast part of the City.This square mile known as Section 15 is developed for the most part with 1-1/4 acre parcels and larger.There are some properties along north Apache Trail zoned commercial. There are a couple of grandfathered mobile home parks in Section 15 and there are some parcels smaller than 1-1/4 acre.Those parcels appear to be hold-overs from earlier times when Section 15 was zoned CR-1,which allowed h -acre lots. CR-1 was inherited by the City from the County.Since the City incorporated,i t has always allowed h acre lots in the CR-1 zone.The City in 1991,rezoned the greater part of Section 15 to R1-43,which required 1.25- acre lots. The parcel is question was sold less than a year ago by Evelyn East to Gerald Goodrich and Harriet Burr.The applicants purchased the property with the intention of developing it with a conventional home where they could have 2 horses.R1-43 allows only conventional homes. The person who facilitated the transaction is the representative,Mr. Mihailov. There was some discussion concerning his application and verbal discussion over the counter.He checked with the City and was told verbally over the phone that the parcel was large enough to accommodate horses.Based on those comments,Mr.Mihailov transacted the property to Gerald Goodrich and Harriet Burr. About a month ago,Mr.Mihailov asked,as a request from the buyers,for a written statement from the City that 2 horses could be kept on the property. Mr.Esquivias stated that he had examined the zoning book and assessor's book and noticed that the parcel was a bit smaller than the typical R1-43 lot. The typical size is 1-1/4 gross -acre.When we say gross i t includes any surrounding streets whether they have been dedicated or not.In this case, BOARD OF ADJUSTMENT AND APPEALS JULY 13,1998' PAGE 4 the subject property has a street easement on the east 33'and on the south which is also 33'wide.The gross dimension of the property is 297 feet from the west property line to the center of the street easement.I t is 165 feet from the north property line to the center of the street easement on the south.297 X 165 comes out to 1.125 gross acres.According to the Equine Regulations,you either need 1-1/4 gross acres or 1 acre net to be allowed to have horses and that is an unlimited number of horses.This parcel does not comply with 1-1/4 gross acre size.The net calculations did not meet 1 acre net.The R1-43 zone is a little different than most residential zoning districts that allow horses in that the R1-43 and the CR-1 zones allow the keeping of 2 horses on what is called a commercial acre.A commercial acre is 36,000 square feet net. The parcel does not comply with any of the above criteria.I t is not 1- 1/4 gross acres,i t is not an acre net and the net area does not equal 36,000 square feet. Based on those reasons,it was the Zoning Administrator's determination while speaking with Mr.Mihailov over the counter,that the parcel does not qualify for horse privileges. Mr.Esquivias stated that this is not a horse issue.I t is simply a lot size issue.This is a grandfathered parcel.This zoning also allows 2 horses on 36,000 net square feet.The parcel is approximately 1,152 square feet shy of being a commercial acre. Mr.Mihailov,in his application,brought up a couple of points.He is asking the Board for an appeal on a matter of interpretation.Although the property does not meet the minimum lot size requirement,i t existed prior to the City's adoption of the Zoning Ordinance in 1985.In 1991 the City changed the zoning classification.Perhaps the lot size requirements,as they relate to horse privileges,should not apply to this parcel,since its creation predates the Zoning Ordinance adoption and later zone change. BOARD OF ADJUSTMENT AND APPEALS JULY 13,1998 PAGE 5 Mr.Esquivias stated that this parcel has never been developed.It has always been vacant,according to the aerial map evidence and i t does not appear that horses have ever been on the property.Thus,horse privileges are not vested. Those reasons counter the argument that this lot is somehow grandfathered for horses.Once again,the uses have not been established. Also,i t appears from research that this parcel,since 1984 when it was created,has not contained sufficient lot area for horses.Prior to 1984, this parcel did contain sufficient lot area for horses.For some reason the property owners at that time conveyed the west 33 feet of that parcel.There is a wash there and it was determined unusable lot area so that west 33 feet was basically deeded over to the property to the west.That is what caused this parcel to fall below the minimum lot size for horse privileges.Prior to 1984,it would have qualified but after 1984 i t no longer qualified for horse uses even when it was zoned CR-1 and certainly not after it was zoned R1-43 by the City Council in October of 1991. Staff would ask the Board to uphold the Zoning Administrator's decision as written in the motion on page 5. Chairman Pfeifer asked the Board members if they had any questions of Mr.Esquivias. Mr.Hartwig asked if Mr.Esquivias does concur with Mr.Mihailov that someone from Development Services did in fact say i t was okay to have horses. Mr.Esquivias responded by saying he has no reason to doubt Mr. Mihailov.He is a very resourceful person and always does his homework.He frequently calls our office and asks questions. Mr.Hartwig asked that subsequent to the alleged confirmation that i t was a horse lot,then the real estate transaction took place? Mr.Esquivias said correct,that was his understanding. BOARD OF ADJUSTMENT AND APPEALS JULY 13,1998 PAGE 6 Mr.Littell asked Mr.Esquivias if the property would have been okay if they had not deeded over 30 feet to the west. Mr.Esquivias answered yes Sir.The Assessor's office informed me that around November,1984 is when the west 33 feet was conveyed off the property. Mr.Esquivias showed a map to the Board members.He said this dotted line indicates a previous property line in 1984.The area between the dotted line and the west property line of the subject site became part of Lot #37. The property is presently owned by Timothy and Christina Vanda. Mr.Slocum asked what is established around this area.Is it all horse property and is it used as horse property? Mr.Esquivias replied most of the parcels in the surrounding area are either 1-1/4 acres or larger.It does qualify them as horse property. Exceptions are Lot #36 directly north of the subject site and Lots 33H and 33G which are a little to the west of the subject site.According to the Assessor's map everything else in that area does qualify for horse privileges. He continued to state that just for the record,his office received two phone calls from surrounding property owners.One lady just called to get general information.She did not express any preference either for or against this case.The second call was from Mr.Barton Everman who owns Lots # 26 and 34 which would be the 10 acres to the east.His preference was that horses not be allowed on the property.In the past he has had some trespassing problems and fears that it will continue if horses were allowed on the property. Mrs.Gardner asked if that 30 feet on the west were added back into Lot #35,would that leave Lot #37 with 1-1/4 acres? Mr.Esquivias responded yes. Chairman Pfeifer thanked Mr.Esquivias for his presentation and asked if the applicant or representative wished to address the Board regarding this matter.Mr.Mihailov was sworn in by Chairman Pfeifer before his presentation. BOARD OF ADJUSTMENT AND APPEALS JULY 13,1998 PAGE 7 Mr.Mihailov explained that the reason he is here is not because there is a client that wished to purchase the property and wants to change i t to horse property but because,as Mr.Esquivias quoted,in January when he met Mr.Goodrich his main concern was if horses could be allowed on the property if there was a house on the property. He continued to say that he called the Zoning Department but did not keep any notes as to who he talked to.He gave the parcel number to the person on the phone to be sure they were talking about the same parcel.He was told yes,you could put horses on that particular piece of property.He relayed that information to his clients.At that point,they wanted to purchase the property.He wrote up a contract and in February of 1998 received a copy of the completed survey.He met with Gordon Grandy,City Engineer and went to the property to ensure the terrain was such that an acceptable building site existed and to look at the survey stakes.The conversation included the size of the parcel,the fact that it was created long before the ordinance was adopted and the buyers intended use,including the keeping of horses.Mr.Grandy indicated that the intended use was acceptable under Section 15.1.0105.C.In May he received a call from the buyers,stating the City told them horses were not allowed on the property. Mr.Mihailov read Section 15.1.0105 aloud to the Board members. (Intensity of Use)where i t states "(lots of record)shall be deemed to comply with the minimum lot size and width requirements of these zones,subject to all other requirements of this ordinance."He said this is what was interpreted when he spoke to someone at the Zoning Office and they said you can have horses.In June of 1998 an application for appeal of the Zoning Administrator's decision was filed. Mr.Mihailov demonstrated with drawings that a 1-1/4 gross acre lot zoned R1-43 with road easements on three sides would have the same net lot area as the subject site. Chairman Pfeifer asked Mr.Mihailov if he knew that the west 33 feet was deeded and that the acreage was less than 1-1/4. Mr.Mihailov replied yes. BOARD OF ADJUSTMENT AND APPEALS JULY 13,1998 PAGE 8 There was further discussion amongst the Board members concerning exactly what was told to Mr.Mihailov during his phone call to the Zoning Department regarding horses being allowed on the property. Mr.Esquivias stated that in phone conversations with Mr.Mihailov a month ago,there was confusion about what happened to the west 33 feet.He thought that a road abandonment had occurred there,which meant that there would be no problem with lot size.But,it was not a road abandonment,it was actually a dedication to the other parcel and that is what made i t substandard. Mr.Esquivias explained that when Mr.Mihailov came to his office,they discussed exactly what parcel it was.After looking up the parcel,Mr. Esquivias discovered the parcel was not 1-1/4 acres. Mr.Slocum questioned whether the Board should be concerned with setting a precedent if they voted either way or does each case stand on its own merit. Chairman Pfeifer reminded Mr.Slocum that the Board has some guidelines they must follow. City Attorney added that any decision made by the Board this evening would not set a precedence for future cases. Chairman Pfeifer inquired as to any ordinance that would indicate that certain properties can keep no more than two horses. Mr.Esquivias replied yes.R1-43 and CR-1 properties which fall somewhere between 36,000 square feet net and the 1 acre net category are allowed to keep only 2 horses. Mr.Hartwig stated that the diagram Mr.Mihailov presented showed other lots in the City that are zoned with the exact amount of square footage or very close to i t as the new owners have and they are allowed to have horses. Why? Mr.Esquivias replied that it was a matter of definition between a gross lot and a net lot. BOARD OF ADJUSTMENT AND APPEALS JULY 13, ,1998 PAGE 9 Chairman Pfeifer asked if there was anyone in the audience who is in favor of the case who wished to address the Board regarding this matter. Mr.Bill Wilson (following the oath)explained that he lives on Lot # 33 and has been there since 1991.Former owners built a house on Lot #37 but built it too close to the east line of the property,so in order to meet the setbacks they purchased 33 feet from the east side which is the property in question.He does not have any objection to Mr.Mihailov's request.He mentioned several of the property owners in the area and has not heard any objections from any of them. Chairman Pfeifer asked Mr.Wilson if because there have not been any objections from neighbors should the Board members approve this request. Mr.Wilson stated that he was present when the survey was done and it was assumed it was a certain size property.It is strictly horse property. Chairman Pfeifer thanked Mr.Wilson and asked the Board if they had any more questions. Mr.Littell asked if the road was abandoned would that qualify the owners of the lot in question. Mr.Esquivias answered that if Hilton was abandoned that would qualify them to have two horses. He added that the owners could ask for an abandonment but at this time the City has an unofficial moratorium on abandonments.The only problem with abandonments is that the Engineering Department would ask for all or nothing. They do not abandon half a roadway.So,the applicants would need to talk to their neighbors to the east about abandoning their half roadway as well. Chairman Pfeifer asked if there was anyone else in the audience who wished to speak in favor of the applicant.There was none. He then asked if there was anyone in the audience who wished to speak in opposition of the applicant.There was none.He asked if any Board members had any questions or comments.No one responded;therefore,he would entertain a motion. BOARD OF ADJUSTMENT AND APPEALS JULY 13, 1998 PAGE 10 MOTION ON CASE BA -1-98) )BOARD MEMBERS HARTWIG/SLOCUM M/S "I MOVE THAT MR.MIHAILOV'S MOTION,THAT THE PREMISE OF SECTION 15.1.0103.5 BE ACCEPTED AND HIS APPEAL BE GRANTED." FINDINGS FOR OVERTURNING ZONING ADMINISTRATOR'S DECISION 1.Subject property is a lot of record. 2.Its deficient size shall not in itself preclude horse privilege on the property. VOTE:3-2-1 with Mr.Litell and Mr.Pfeifer voting no and Mrs.Otero abstaining. City Attorney Stern stated that a person aggrieved by a decision of the legislative body or board or a taxpayer,office or department of the municipality affected by a decision of the legislative body or board may,at any time within thirty days after the board,or the legislative body,if the board decision was appealed pursuant to subsection J of this section,has rendered its decision,file a complaint for a special action in superior court to review the legislative body or board decision.Filing the complaint does not stay proceedings on the decision sought to be reviewed,but the court may, on application,grant a stay and on final hearing may affirm or reverse in whole or in part,or modify the decision reviewed. Mr.Esquivias asked Mr.Stern if Mr.Hartwig's motion was for 2 horses or horses in general. City Attorney Stern answered that the motion was to grant the applicant's request,which was specifically for 2 horses. OLD BUSINESS None BOARD OF ADJUSTMENT AND APPEALS JULY 13,1998 PAGE 11 NEW BUSINESS Mr.Hartwig complimented Jackie LeCount for her exceptional work.She is an asset to the Board. Mr.Littell said that some type of recommendation should be given through Rudy Esquivias,because there has been a lot of these heresay cases, through the offices or what -not,that opened up a can of worms.I think there has to be a little schooling that we don't give out information that we are not positive of. REQUEST OF STAFF INFORMATION AND REPORTS EXECUTIVE SECRETARY'S REPORT Mr.Esquivias stated that we are experiencing a lot of growth and i t does not look like i t is going to be slowing down anytime soon. SELECTION OF MEETING DATES.TIMES.LOCATIONS AND PURPOSES EXECUTIVE SESSION ON AUGUST 10,1998 WORK SESSION ON AUGUST 10,1998) )BOARD MEMBERS GARDNER/OTERO M/S "I MOVE THAT THE NEXT EXECUTIVE SESSION BE HELD AT 6:30 P.M. ON AUGUST 10,1998 IN THE DEPARTMENT OF DEVELOPMENT SERVICES CONFERENCE ROOM: AND THAT THE NEXT WORK SESSION BE HELD AT 6:45 P.M.ON AUGUST 10,1998 AND A REGULAR MEETING BE HELD AT 7:00 P.M. IN THE CITY COUNCIL CHAMBERS". VOTE:6-0 The motion carried. BOARD OF ADJUSTMENT AND APPEALS JULY 13,1998 PAGE 12 ADJOURNMENT) )There being no further business to discuss,and with no objections,Chairman Pfeifer adjourned the meeting at 8:30 P.M. 'James Pfeife BOARD OF ADJUSTMENT AND APPEALS JULY 13,1998 PAGE 13