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HomeMy WebLinkAbout2002-07-08 BOA MINUTESBOARD OF ADJUSTMENT AND APPEALS CITY COUNCIL CHAMBERS MEETING OF JULY 8,2002 The regular meeting of the Board of Adjustment and Appeals of the City of Apache Junction,Arizona was held on July 8,2002,at the Apache Junction City Council Chambers,pursuant to the notice required by law. SYNOPSIS Acceptance of Minutes dated March 11,2002. Approval of Case BA -2-02 - Appeal of Zoning Administrator's Decision Land Split CALL TO ORDER Board Member Spelman called the meeting to order at 7:00 p.m. ROLL CALL Board Members Present:Board Member Sandra Spelman Board Member Sherri McGahan Board Member Dan Austin Board Member James Schecter Board Members Absent:Chairwoman Mari Gardner (2 Vacancies) Staff Present:Interim Development Services Director Rudy Esquivias City Attorney R.Joel Stern Assistant Planner Steve Abraham Guests Present:Sophia Wiesenhofer,1660 E.20th Avenue,A.J. Brian Uren,1142 E.7' Place,Mesa Kaylan Easterbrooks,2101 S.Meridian #47,A.J. George McMartin,1422 E.30' Avenue,A.J. SELECTION OF VICE CHAIRPERSON Rudy Esquivias,Interim Development Services Director, called for nominations for the position of Vice Chairperson. BOARD OF ADJUSTMENT AND APPEALS JULY 8,2002 -1- Chairperson. Board Member Austin nominated Sherri McGahan for Vice Board Member Selman seconded the nomination. Rudy Esquivias,Interim Development Services Director,asked if there were any other nominations from the floor.With no further nominations,Mr.Esquivias announced that Board Member Sherri McGahan has been nominated for Vice Chairperson for the Board of Adjustment and Appeals.Mr. Esquivias initiated a roll call vote for the nomination. Rudy Esquivias,Interim Development Services Director, announced that with a unanimous decision vote of 4-0,Board Member McGahan has been appointed as the new Vice Chairperson.Mr.Esquivias informed the Board that due to the absence of Chairwoman Gardner,Vice Chairwoman McGahan will chair the meeting. PRESENTED." Vice Chair McGahan asked for a motion to accept the agenda. BOARD MEMBERS AUSTIN/SPELMAN M/S "I MOVE WE ACCEPT THE AGENDA DATED JULY 8,2002,AS MOTION CARRIED VOTE 4-0 ACCEPTANCE OF MINUTES BOARD MEMBERS SPELMAN/AUSTIN M/S "I MOVE WE ACCEPT THE MINUTES DATED MARCH 11,2002,WITH CORRECTIONS TO PAGE 4 AND 6."THE CORRECTIONS TO BE MADE ARE:BOARD MEMBER MCGAHAN WAS THE SPEAKER ON PAGE 4,PARAGRAPH -6,AND BOARD MEMBER MCGAHAN WAS THE SPEAKER ON PAGE 6,PARAGRAPH 7. MOTION CARRIED WITH CORRECTIONS TO BE MADE. VOTE 4-0 PUBLIC HEARINGS BOARD OF ADJUSTMENT AND APPEALS JULY 8,2002 - 2 - CASE BA -2-02 Vice Chair McGahan announced case BA -2-02.This is an appeal request by Brian Uren,on behalf of Sophia Wiesenhofer,of the Zoning Administrator's decision regarding the validity of a land split map approved in 1989 for the 1.25 gross acre property located at the northeast corner of S. Tomahawk Road and E.21st Avenue. Steve Abraham,Assistant Planner,presented case BA -2-02. This is an appeal request of the Zoning Administrator's decision that an administratively approved land split map by itself does not forever guarantee that a property owner will be able to create the lots as shown on said land split map.Zoning regulations are subject to change. In January of 1988,Ordinance 605 rezoned the original 1.25 gross acres from GR (General Rural)to CR-2/MH (Single Family Residence Zone/Manufactured Homes).The property was rezoned for the purpose of splitting the 1.25 -acre parcel into three (3)lots for either manufactured or conventional homes. In November of 1988,the Wiesenhofer's submitted an application for a three (3)lot minor land division of the original 1.25 gross acres.The approved land split map showed three (3)parcels (A,B,and C). In Marchof 1989,Mrs.Wiesenhofer sold. Parcel "A".In November of 1990,the City Council increased the minimum lot size in several residential zoning districts in an attempt to mitigate the rate at which vacant or partially developed parcels were being rezoned and split without the provision of public improvements.The CR-2/MH zone went from 11,000 net square feet to 20,000 net square feet lot size requirements. In October of 2001,a realtor representing Mrs.Wiesenhofer inquired about splitting the remaining parcel.The realtor was informed that Mrs.Wiesenhofer could not split her property because .the new lots would not meet the minimum size requirements. In January of 2002,I discussed with Mr.Uren the appeal options and an appeal was submitted by Mr.Uren. When a proposed land split is deemed by the Development Services Director to meet all required criteria,i t is approved.Staff then informs the applicant of approval in writing and is provided with a copy of the approved map.The applicant must then draw and record deeds with the Pinal County Recorder to make the land split effective.Once recorded,the BOARD OF ADJUSTMENT AND APPEALS JULY 8,2002 - 3 - Pinal County Assessor modifies the Pinal County Assessor Map and new parcel numbers are assigned to new lots. The analysis of this land split appeal is as follows: 1.Any zoning ordinance provision is subject to change.What is allowed today may not be allowed in the same way a year from now.It is incumbent upon a property owner to vest his/her property rights for development in a prudent and timely manner. 2.The only way to create new parcels once a land split has been approved is to draft conveyance deeds that are recorded by the County Recorder, and subsequently reflected by the County Assessor as new parcels. 3.Parcel "A"was grandfathered when the required minimum lot size was changed in 1990 because it was a recorded lot.Parcels B and C were not grandfathered because these splits were not recorded prior to the effective date of the Ordinance. 4.LSM-88-022 cannot be approved today because i t does not comply with the current lot size requirements of the CR-2 zone. 5.Mrs.Wiesenhofer's options are to subdivide the lots,which would go to the City Council for approval,or she could build her portion of the street to current City standards (curb,gutter and sidewalk). Staff would respectfully ask that you uphold the Zoning Administrator's decision to deny this request. Board Member Austin asked if this Board,as a matter of motion,could make a condition that the street be paved?As a matter of discretion,is there a policy or a way that any entity can put a condition whereby if this was approved the condition would state that the property owner have the street paved,or could an amount of monies be put into the Public Works office based upon the estimated cost of paving that street so that the City at a future date then would have the funds to go in and finish that project?The City requires developers to curb,gutter and pave streets as they put in development.Can that be done and what is the policy of the City? Rudy Esquivias,Interim Development Services Director,asked Mr.Austin when you say paved,do you mean just pavement or complete street improvements? Board Member Austin replied complete street improvements. BOARD OF ADJUSTMENT AND APPEALS JULY 8,2002 - 4 - I am not sure if there is curb and gutter on the remaining part of that street. Rudy Esquivias,Interim Development Services Director, answered the south part of the street,and actually Descanso,that stretch of Tomahawk,and that stretch of Southern are improved because that is a platted subdivision.Mrs.Wiesenhofer's property and the other properties to the north are not part of a platted subdivision.One of Mrs.Wiesenhofer's options is to put in her portion of street improvements.The CR-2 regulations say that the smallest lot size you can create is 20,000 net square feet, unless you are in a subdivision,or you are in an area for which street improvements have been ordered by the City,or unless you provide your portion of the street improvements.So that would be an option for Mrs.Wiesenhofer to assume that expense.The question was asked if Mrs.Wiesenhofer could grant monies to Public Works for future street improvements?People do pay road improvement development fees whenever they pull a permit.But,never has it been done in the fashion that you suggest,as far as putting up the money first and letting the City build i t later. Joel Stern,City Attorney,advised that is not how development fees work.In this particular case you are talking about a land split vs a subdivision.In a subdivision she would be required to put in that street without any question.Typically,if zoning wasn't a problem and a land split was to go through,I don't think Mrs.Wiesenhofer would be required to put in a street.Is that correct Mr.Esquivias,if the zoning was alright? Rudy Esquivias,Interim Development Services Director, answered yes,that is correct. Joel Stern,City Attorney,advised that he doesn't think you can require Mrs.Wiesenhofer to post a certain amount of money to put in street improvements. Board Member Austin commented that we could make i t as a condition that Mrs.Wiesenhofer would have to pave the street. Joel Stern,City Attorney,replied yes,as a condition,i f you approve the land split. Board Member Austin confirmed yes,as a condition. Joel Stern,City Attorney,advised Mrs.Wiesenhofer may not like it.You can ask her if she likes it.However,if that is a condition maybe she will be less likely to complain if she knew she was going BOARD OF ADJUSTMENT AND APPEALS JULY 8,2002 - 5 - to get a land split. Board Member Austin replied we will have to wait to hear from Mrs.Wiesenhofer. Board Member Austin noted that in observing the area you do see mobile homes on lots of that size.I realize why that happened and then there was a change.In that area there are lots of approximately 12,000 square feet or more. Board Member Schecter noted that in going along with what Mr.Austin said,I want to make sure I am comfortable with the fact that,per Ordinance 760,lots 61B,61C,and 62C just to the east of the property were done prior to the Ordinance.In the appeal it says that these three lots are only 8,000 square feet.I just want to make sure. Steve Abraham,Assistant Planner,remarked that is true. Rudy Esquivias,Interim Development Services Director,said the TH zone which is just east of Mrs.Wiesenhofer's lot,back in the mid 80's actually allowed lots as small as 8,000 square feet.That is the difference between two different zoning districts.Back then in CR-2 the smallest lot was 11,000 square feet:back then in the TH zone the smallest lot was 8,000 square feet.Now they are actually both 20,000.The TH zone also went up to 20,000.Her neighbor could not do that today. Vice Chair McGahan asked what are the sizes of the lots just north of her? Rudy Esquivias,Interim Development Services Director, answered they are '4 acre lots. Vice Chair McGahan announced that this is a public hearing and if anyone wishes to speak,please step forward and state your name and address. Brian Uren,1142 E.7th Place,Mesa,AZ,85203,addressed the Board.I have a question for Steve Abraham.Are you talking about the whole street from Vista Drive all the way to Tomahawk for street improvement or just the area in front of Lot 63. Steve Abraham,Assistant Planner,indicated on the map the area concerned (basically in front of lot 63). BOARD OF ADJUSTMENT AND APPEALS JULY 8,2002 - 6 - improve? Brian Uren asked if that is the only part we will have to Steve Abraham,Assistant Planner,remarked that is correct. Brian Uren asked how does that fall with the surrounding area of having to improve the street for 200 feet and no improvements on the corner and the remainder of the street? Steve Abraham,Assistant Planner,noted that your lot would be the only lot on the north side of 21' Avenue with street improvements. lots or lot 63? Brian Uren inquired if it was divided,it would be the 2 Steve Abraham,Assistant Planner,said that is correct. Brian Uren commented that we do have the largest lot on the street.Maintenance and cost is an issue.He has a hard time keeping the lot maintained.Mrs.Wiesenhofer cannot hire someone full time to do this so he is doing i t at this time.Due to his health he can't ,do the whole thing. During this process my grandfather was handling i t and he passed away on the 6' of January.Mrs.Wiesenhofer had issues she had to deal with,a death, and she fell behind in this matter. Sophia Wiesenhofer,1660 E.20th Avenue,Apache Junction, addressed the Board.At the time this was going on my husband was ill with cancer and he passed away on the 6' of January and I have just lost all interest.It was too hard to cope with anything like that.I wish there was something you could do to help me.I need to get rid of it.When you are talking about paving do you mean cement or blacktop? Rudy Esquivias,Interim Development Services Director, remarked blacktop with concrete sidewalks. Board Member Austin commented that he didn't observe that street being unpaved from Vista all the way through.It is paved on 21' Street to the property line right now. Brian Uren reported that there is no pavement on the north side of the center line from lot 61B to 62B. Rudy Esquivias,Interim Development Services Director, commented that the south half appears to be paved and not the north half from BOARD OF ADJUSTMENT AND APPEALS JULY 8,2002 - 7 - Tomahawk to Vista. Board Member Austin noted that at one time her family did own that lot all the way to Tomahawk. Vice Chair McGahan asked if Mrs.Wiesenhofer would still have to be responsible for that particular lot since it was already sold? Rudy Esquivias,Interim Development Services Director, stated no,just the 2 lots she is creating today. Board Member Spelman asked if Mrs.Wiesenhofer would have to go through all of this if she was going to split this and have 2 lots and she just did i t as one. Rudy Esquivias,Interim Development Services Director, answered that if she kept lot 63 the way i t is,we wouldn't be coming before the Board. Vice Chair McGahan closed the public hearing portion and opened i t for discussion among Board members. Board Member Austin asked Madam Chair if the public hearing could be reopened in order to ask Mrs.Wiesenhofer additional questions,. Vice Chair McGahan reopened the public hearing for additional questions: Board Member Austin asked Brian Uren what his feelings are about paving that street in front of the property in question.And what was his feeling about extending that clear out to Tomahawk.What is your grandmother's feeling on this? Brian Uren remarked that he couldn't speak on Mrs. Wiesenhofer's behalf,but on his personal opinion he didn't feel it was going to be beneficial.There are cable boxes,water boxes,and sewer out there. It is going to serve no access for ingress or egress throughout the subdivision.If anything,it will probably cause more problems. Board Member Austin noted that you are saying that there are electrical and water boxes along that street.Are they in the street and not on the outside of the street? Brian Uren stated that Mrs.Wiesenhofer's water box would BOARD OF ADJUSTMENT AND APPEALS JULY 8,2002 - 8 - fall within the easement probably 8 feet off the property line towards the paved road.The cable box is about 6 feet from the center line of the road. Board Member Austin noted that he saw on the map that i t does show water meter boxes there.The streets in this community are how wide? Rudy Esquivias,Interim Development Services Director, answered that typically,they are 66'wide federally patented easements.They would be responsible for their half of it.We are usually talking about 16 feet of pavement,2 feet of curb,4 feet of sidewalk,and then everything remaining is basically utility easement.So,the water meter may actually be where i t is supposed to be.I am not sure about the cable box. Brian Uren said the TV cable meter is on there. Rudy Esquivias,Interim Development Services Director, remarked that i t is way out in the right of way.It shouldn't be there. Brian Uren replied that he finds i t hard to justify a strip of road roughly 200-300 feet.He doesn't see how that would benefit the area for traffic or any type of improvement. Board Member Austin commented that this community is growing and Tomahawk is getting more traffic.We have to correct these problems that lie within the community.I realize we have small pieces and larger pieces. In an answer to my question,you feel it would be detrimental to Mrs. Wiesenhofer financially. Brian Uren said that financially it would hurt her.One reason she would like to sell the lot is for income reasons.It would make no sense for her to sell the lot,take the money and turn around and improve the street for her self and whoever purchased the land. Board Member Austin noted however,you did sell Parcel "A" years ago? Brian Uren replied yes,years ago from this current split. Obviously,not having i t recorded is the problem that we are running into today. Board Member Spelman asked if this split doesn't go through will Mrs.Wiesenhofer sell i t as just the one large parcel if this is denied? Brian Uren replied he didn't think Mrs.Wiesenhofer had any BOARD OF ADJUSTMENT AND APPEALS JULY 8,2002 - 9 - plans to sell her home in the future.She would have to sell i t as one if it doesn't go through.I don't know if anyone would buy that size of a lot for what the land is worth with only being able to put one home on i t or with the existing home.As to what she will do in the future,I can't answer that. Board Member Schecter asked Mr.Abraham did he not mention in his presentation that Mrs.Wiesenhofer could create a 2 lot subdivision. Could you just apprise me of what that means and what her direct responsibility would be on that. Steve Abraham,Assistant Planner,answered that is correct. Mrs.Wiesenhofer would have to enter into the City subdivision process and complete an application which would typically be required for a larger development (platting involves pre -plat and final plat,and engineering requirements).She would have to go through public hearings.As far as her responsibilities,it would be at the discretion of the City Council as to what she would have to do for improvements.City Council could waive some of the improvements. Board Member Schecter inquired that when you say that they need to go through the process of getting the platting and engineering would that be out of pocket expenses Mrs.Wiesenhofer would have to incur? Steve Abraham,Assistant Planner,replied yes,that would be. Mrs.Wiesenhofer commented that at one time when I called the County Assessor's Office in Florence they told me that I would have to sell that lot before I could record it.Later on they told me I would have to record i t before I could sell it.It was rather confusing.I couldn't figure it out. Vice Chair McGahan announced that the public hearing is closed and opened for discussion among Board Members. Board Member Austin commented that he was concerned that we have isolated spots in this community and need to correct them.I know this is a hardship for property owners.I also see that if the property owner wanted to go for a subdivision (which would take more time and expense)then it most likely would come back with the same thing I had thought and that is of paving the street.I would like my position to be clear that while these things happen I do understand the property owners situation and the sadness they have experienced.It is either that or we need to conform to the Zoning Ordinance.Obviously when this was changed there was time and opportunity for BOARD OF ADJUSTMENT AND APPEALS JULY 8,2002 -10- the property owners to express a view point at that time.Openly and freely. I don't know if you want me to make a motion.I would like to hear from the rest of you. Board Member Spelman commented that she agreed with Board Member Austin.I feel that in order for this to go through they need to be willing to see our side of it and do a little bit for the City too,or they are going to have to pave or sell i t as one.I don't think we should let i t go through without anything.This happens too freely. Board Member Austin noted that obviously there was an open hearing when the zoning was changed. Board Member Selman replied that i t has been a lot of years that i t could have been straightened out and i t hasn't been until now. Board Member Schecter said that he went about this to try and see if there was just any type of a back door,or saying okay this is in place can we perhaps do i t from this angle.However,everything I am seeing here is pretty water tight and I think i t needs to come down to that it cannot be approved unless the condition is met to improve the street to Apache Junction standards. Vice Chair McGahan commented that one of the items that I have read that the Board of Adjustment and Appeals "may not do is make any changes in the uses permitted in any zoning classification or zoning district, or make any changes in the terms of the Zoning Ordinance,provided the restriction in the paragraph shall not affect the authority to grant variances pursuant to this article;nor can we grant a variance if the special circumstances applicable to the property are self-imposed by the property owner".That is my feelings on it as well. Joel Stern,City Attorney,advised that there has to be a motion to deny from what I think I am hearing.The person who moves must list the reasons.Either way,you should list the reasons to approve or deny.I f there is a motion you must clearly identify the reasons why i t has been denied or approved. Board Member Austin said if we made a motion to approve i t with conditions then it would be up to the property owner to make a decision one way or another.In other words if Mrs.Wiesenhofer doesn't want to make street improvements she can. Joel Stern,City Attorney,advised that is correct. BOARD OF ADJUSTMENT AND APPEALS JULY 8,2002 -11- However,there is an enforcement issue and the City would be forced to enforce it and there could be legal issues on the enforcement.That could be a possibility.I think you can have that condition for pavement,but I am not 1002 positive. Board Member Austin noted that there would be court costs plus an additional cost to the City and the property owner. Joel Stern,City Attorney,advised possibly,the paving would be definitely. Board Member Austin said that he was talking about an appeal process or court costs if that would be the case to enforce it. Joel Stern,City Attorney,advised correct.If the property owner didn't like the condition they could go to Superior Court after this hearing.They have 30 days to do that.If the City did not like your passage of it with the condition,the City could actually take this Board to court. Board Member Spelman asked if we denied it? Joel Stern,City Attorney,asked if denied i t outright? Board Member SpeIman responded yes,denied i t outright. Then without a clause we are all set.They can appeal it? Joel Stern,City Attorney,advised yes,they can appeal it. Any person can appeal. Board Member Austin stated that they can also go to City Council and have them vote for a subdivision. Joel Stern,City Attorney,advised that is correct.A subdivision is definitely an option .There are fees involved with that. With a subdivision they can also ask the Council to waive the street improvement process (curb,gutter,sidewalk,and drainage).They could do that.There is no guarantee they would get it,however.I t depends on how each Council member feels about that particular area.Some Council members would waive that.I don't know.I don't know if the Zoning Administrator can comment on that. Rudy Esquivias,Interim Development Services Director, answered that we have had few cases.It is hard to call. BOARD OF ADJUSTMENT AND APPEALS JULY 8,2002 - 12 - Board Member Austin MOVED THAT CASE BA -2-02,AN APEAL OF THE ZONING ADMINISTRATOR'S DECISION BY BRIAN UREN,ON BEHALF OF SOPHIA WIESENHOFER,THAT A LAND SPLIT MAP APPROVED IN 1989 FOR THE SPLIT OF A 1.25 GROSS ACRE PROPERTY LOCATED AT THE NORTHEAST CORNER OF SOUTH TOMAHAWK AND EAST 21ST AVENUE (AKA PINAL COUNTY ASSESSOR PARCEL NUMBERS 103-29-063 AND 064)IS NO LONGER VALID,BE DENIED FOR THE FOLLOWING REASONS: 1)THE ZONING ADMINISTRATOR DID CONSIDER ALL RELEVANT FACTS RELATED TO THIS REQUEST. 2)THE ZONING ADMINISTRATOR'S DECISION IS CONSISTENT WITH THE INTENT OF THE ZONING ORDINANCE. Board Member Spelman SECONDED THE MOTION. VOTE 4-0 MOTION CARRIED FOR DENIAL Joel Stern,City Attorney,advised that there is an appeal process within 30 days.Any aggrieved individual can file with the Superior Court of Pinal County. OLD BUSINESS None NEW BUSINESS None REQUEST OF STAFF None INFORMATION AND REPORTS Mr.Esquivias announced that Board Member Kent Slocum had passed away.We will miss him.He served ornseveral Boards and Commissions for the City for a long time.He was very active in the community.We have a new member to welcome to the Board,Mr.James Schecter.We are still down 2 members for the Board of Adjustment. Received information from the Arizona Chamber of Commerce reference a training opportunity seminar to be held in Phoenix in November.Please advise Rudy or Jan Kronenburg by August 16 if interested in attending the seminar.As further information is received it will be passed on to members. BOARD OF ADJUSTMENT AND APPEALS JULY 8,2002 - 13 - SELECTION OF MEETINGS,TIMES,LOCATIONS AND PURPOSES BOARD MEMBERS SPELMAN/SCHECTER M/S "I MOVE THAT AN EXECUTIVE SESSION OF THE BOARD OF ADJUSTMENT & APPEALS BE HELD AT 6:30 P.M.,AND THE REGULAR MEETING AT 7:00 P.M.ON AUGUST 12,2002". MOTION CARRIED. ADJOURNMENT There being no further business to discuss,and with no objections,Vice Chair McGahan adjourned the meeting at 8:11 p.m. SHERRI McGAHAN,VICE CHAIRWOMAN RUDY ESQUIVIA INTERIM DEVELOPMENT SERVICES DIRECTOR BOARD OF ADJUSTMENT AND APPEALS JULY 8,2002 -14-