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HomeMy WebLinkAbout2003-04-14 BOA MINUTESBOARD OF ADJUSTMENT AND APPEALS CITY COUNCIL CHAMBERS MEETING OF APRIL 14,2003 The regular meeting of the Board of Adjustment and Appeals of the City of Apache Junction,Arizona was held on April 14,2003,at the Apache Junction City Conference Center,pursuant to the notice required by law. SYNOPSIS Acceptance of Minutes dated July 8,2002. Case BA -1-03 -Variance for side yard setback for swimming pool. CALL TO ORDER Chairwoman Gardner called the meeting to order at 7:00 p.m. ROLL CALL Board Members Present:Chairwoman Mari Gardner Board Member Sandra Spelman Vice Chair Sherri McGahan Board Member Dan Austin Board Members Absent:Board Member James Schecter (2 Vacancies) Staff Present:Interim Development Services Director Rudy Esquivias Associate Planner Steve Abraham Guests Present:George McMartin,1422 E.30' Ave.,A.J. Bob Hensler,Platinum Pools,2128 W.Mulberry Dr.,Phx. Maxine Brown -Benson,3668 S.Warner Dr.,A.J. 011ie Benson,3668 S.Warner Dr.,A.J. Melissa Mehler-Dusek,3687 S.Warner Dr.,A.J. ACCEPTANCE OF AGENDA Chairwoman Gardner asked for a motion to accept the agenda. BOARD OF ADJUSTMENT AND APPEALS APRIL 14,2003 PAGE 1 OF 11 PRESENTED." BOARD MEMBERS MCGAHAN/SPELMAN M/S "I MOVE WE ACCEPT THE AGENDA DATED APRIL 14,2003,AS MOTION CARRIED VOTE 4-0 ACCEPTANCE OF MINUTES BOARD MEMBERS SPELMAN/AUSTIN M/S "I MOVE WE ACCEPT THE MINUTES DATED JULY 8,2002." MOTION CARRIED VOTE 3-0 (Chairwoman Gardner abstained) PUBLIC HEARINGS CASE BA -1-03 Chairwoman Gardner announced case BA -1-03.This is a request for a variance of the side yard setback requirement for a swimming pool by Alan Hensler,on behalf of 011ie Benson and Maxine Brown -Benson, requesting to locate a swimming pool five (5)feet from a property line, instead of seven (7)feet as normally required.The property is located at 3668 S.Warner Drive. Steve Abraham,Assistant Planner,presented case BA -1-03. The request is a variance of Section 6.0128 Swimming Pools,Pools,and Ponds from the side yard setback requirement for a in -ground swimming pool.The applicants are requesting a variance to allow the current placement of an excavated,but not completed swimming pool,encroaching two (2)feet into the required seven (7)foot side yard setback.The applicants stated that the strict application of the zoning regulations would impose unnecessary hardship because the pool has been dug,the support structure has been set,and the utilities and conduit have been installed. Their primary reason for the variance is because the Pinal County Building and Safety Department issued a permit for the construction of the pool.The applicants contacted Pinal County to get zoning for setbacks on the property for the pool.The setbacks were given.They were not told at BOARD OF ADJUSTMENT AND APPEALS APRIL 14,2003 PAGE 2 OF 11 the time that their property was inside the City of Apache Junction city limits.They proceeded to complete a building permit.The pool permit was issued and the construction proceeded.At the time they called in for a pre- gunite inspection the inspector informed them that this pool is not in Pinal County and they would have to get a permit from the City of Apache Junction. The pool had already been excavated,rebar set,and utilities set.Mr. Hensler came into the Apache Junction Building Department and was informed at that time that the pool did not meet the required setbacks.He was provided with several options as follows:1)move the pool in its entirety two feet northerly to comply with the required setback,2)shore up the two feet along the southern edge of the pool so that water's edge complies with the required setback,or 3)request a variance. In the CR-1,CR-2,and CR-3 zone,pools shall be permitted provided such pool is located in the rear yard or buildable area behind the main building no closer than seven (7)feet to any property line.Pools adjacent to an alley shall be located no closer than four (4)feet from said alley line. The property was annexed and rezoned in 1996.I t is currently designated medium density residential on the general plan. In reviewing variance requests,I would respectfully remind the Board that under the Arizona Revised Statutes and Section 12 of our Zoning Ordinance,the variance can be granted if certain criteria are met: 1)There are special circumstances or conditions attached to the property which circumstances do not apply generally to other land or buildings subsequent to the adoption of this Ordinance. 2)That the strict application of the regulations would work an unnecessary hardship and that the granting of the application is necessary for the preservation and enjoyment of substantial existing property rights. 3)That the granting of such application will not materially affect the health and safety of persons residing or working in the neighborhood and will not be materially detrimental to the public welfare or injurious to property or improvements in the neighborhood. BOARD OF ADJUSTMENT AND APPEALS APRIL 14,2003 PAGE 3 OF 11 Our pool setbacks have been in place and effect since 1985. The long term effect of this nonconforming construction on the neighborhood could have the neighbors possibly wanting to do what the Benson's did to get their pool where i t is. Staff does recommend denial of this case.It does not appear to meet the criteria of variance required by state law and the Zoning Ordinance.There are underlying issues that need to be presented for the Board's consideration.What is the property owner's,or individual's doing business in Apache Junction,responsibility in knowing what jurisdiction they are under?Is this going to be a threat to public health and safety?It doesn't impose any increased risks.I would ask the Board to consider three things when evaluating this request: 1)Evaluate the data in this case as required by State Law. 2)Does this request meet the intent of the Zoning Ordinance? 3)Does this pool present a hazard in any form to the homeowner or adjacent property owners? We have a recommended motion if you choose to approve or deny this request.If for approval,the recommended conditions of approval are as follows: 1)The pool shall be allowed to remain at the five (5)foot side yard setback. 2)The pool shall not be enlarged or reconstructed,unless in compliance with all applicable City of Apache Junction Codes. 3)The pool shall comply with all barrier requirements. Mr.Abraham was handed a memo by the City Attorney where he discusses other past requests for variances on pools.It doesn't apply to our situation,but .I was requested to show this to you by the City Attorney.Two of those cases had to do with functional vs.designated front yards. Chairwoman Gardner asked if that was the case where the side yard was the front yard?It came back to haunt us.The next owner did not BOARD OF ADJUSTMENT AND APPEALS APRIL 14,2003 PAGE 4 OF 11 know the past history and had to come to the Board of Adjustment for a variance. Rudy Esquivias,Interim Development Services Director,said that this case is different.The main difference in this request is there is no topographical challenge.It all comes down to human error.The Board does have the opportunity to evaluate this request against the criteria and determine if there is enough for this request to be granted or denied based on possible health and safety issues and what might happen in the neighborhood in the future. Chairwoman Gardner asked if it indicated on the deed of the property that they are in the city limits? Rudy Esquivias,Interim Development Services Director, answered that the legal description refers to a lot in a subdivision in Pinal County.This is very typical.The legal description typically refers to the county.It does not necessarily refer to a specific city. Chairwoman Gardner asked how does a contractor know where the property is located?The property owner.should know that,right?Would they pass that on to the contractor? Rudy Esquivias,Interim Development Services Director,said they should know.The owner or the contractor would normally be the one to investigate where to get a permit.It appears in this case they did.Based on the evidence,i t appears that someone at the county gave them the incorrect information.The county should not have issued a permit. Board Member Spelman asked why it took so long for it to come back.Had they .not called for the inspection,it would have gone on and on. Chairwoman Gardner said they have to get an inspection. Steve Abraham,Associate Planner,explained that they called in for an inspection,Mr.Hensler called them back and was advised they were not in the county. Chairwoman.Gardner announced if there are no further questions,she will close the discussion and open this item to the public. BOARD OF ADJUSTMENT AND APPEALS APRIL 14,2003 PAGE 5 OF 11 Would the applicant care to address the Board?Please state your name and address for the record. Bob Hensler,2128 W.Mulberry Drive,Phoenix,addressed the Board.I haven't been back in this area for three years to do a job.When I went to the county initially it was to pick up a permit application.I asked them for the setback information in writing.The county said the setback was three feet.I took that information and laid the pool out.The back wall was at four feet.I turned in my drawing along with the application.At the counter I asked them if someone could review this so I wouldn't have to drive back here from Surprise.The lady at the local county office looked at i t and said it was fine.They processed the whole permit application.It went the entire system and no one caught that it was in the wrong place.I have a reasonable expectation as a contractor to believe when I ask direct questions of city and county personnel that I am getting correct information.We did not try to fudge anything. We waited for 3 days for an inspection and when i t didn't happerrI called them and that is when ,the county told me they made a -mistake. They tOld me to go the City of Apache Junction and 'apply and let them know I was at the county and theCity of Apache Junction would issue me -a permit and inspect the pool.I thought this was pretty easy to get straightened out until I went into the City of Apache Junction and found out the setbacks were different,and we were in one of those setbacks.I t is going to cost thousands of dollars to move this pool two feet.It is not a simple thing. We will have to demolition everything we have done already.We estimate around $4,000.00 to do this.This is a hardshipL for us as we are a small company.If we have to move it,the design will not be the same as the original design.There will have tote considerable changes.We thought we did everything we were supposed to do.The county has accepted responsibility.I am hoping for the best result here -tonight. Maxine Brown -Benson,3668 S.Warner Drive,Apache Junction, addressed the Board.The Pinal County Building andSafety mistakenly issued the original pool permit.Although i t is in compliance with the county,i t is not so within the City of Apache Junction.Please understand that the original permit was not filed with the intent to deceive It was filed legitimately as a customer who trusted the local county to know the current jurisdictions.The average consumer/customer will not know this information off hand,including the pool company we employed.Mr.Hensler did everything correct in his power.Each and every time he was lead to believe by the county that he was following the correct procedure.So how can the property BOARD OF ADJUSTMENT AND APPEALS APRIL 14,2003 PAGE 6 OF 11 owner or contractor correctly know what jurisdiction they live or do business in if they are misinformed.It states in the conclusion that the pool currently does not appear to have any increased risk in public health and safety.This started in January and we have lived with a huge hole and trenches in the yard.We would like for this to be over.I t has become a nightmare.Please carefully review the facts before you and do not penalize the pool company and especially myself and my husband for the mistake made by the county.Please help us make this nightmare go away,understand our position,and allow the pool to remain as i t is.We never anticipated what would take 4 to 6 weeks end up turning into 4 to 6 months. The property? Board Member Austin asked Mrs.Benson how long has she owned Mrs.Benson answered two years. Board Member Austin said so you have known for two years that you lived in Apache Junction.He asked Mr.Hensler how many walls he was going to have to change? Mr.Hensler said that there is actually no part of the pool that won't be affected. Chairwoman Gardner asked if he was aware that if you do live within the city limits,why would you not have pursued that first? Mr.Hensler commented that from his point of view,he was not even aware that permits for the City of Apache Junction were not issued by the county.He has never dealt with the town.That was confirmed to him when he went to the county. Mrs.Brown -Benson said that she knows she resides in Apache Junction.All of our paperwork with the house says City of Apache Junction, County of Pinal.I have never built a pool here before or any building to know who you would contact to get a permit. Board Member Spelman asked if the paper said the City of Apache Junction?Why didn't anyone question that?If you say your paperwork says that,she would think you would have at least checked that. Mr.Hensler answered that this was something that he handled.He doesn't look at deeds or paperwork.If in an attempt to find the proper venue he is told that he is in the right place by a government agency, BOARD OF ADJUSTMENT AND APPEALS APRIL 14,2003 PAGE 7 OF 11 then his assumption has to be that he is in the right place.He asked for a review when he turned i t in.He asked appropriate questions.He was never given any indication by anyone in the county that he was in the wrong spot. Board Member Spelman remarked that they assumed that you were in the right spot.They assumed you knew what you were talking about. The paperwork says Apache Junction.I would have thought that someone would have picked up on that. Chairwoman Gardner asked Mr.Hensler how he deals with other cities? Mr.Hensler answered there are two places where there is an issue.One is between Glendale and Phoenix where they share police and sewer. They go back and forth along the city lines.That can be an issue.Another situation would be in Maricopa County.Maricopa County has islands all over. Especially on the far west side of Phoenix and Avondale.We do have to check those out and no one has ever told me wrongly where my permit was supposed to go.This application has the address and the name and lot number of the development,and no one ever said anything. Vice Chair McGahan said she did notice on the building permit the assessor's parcel number was missing and the legal description was missing.Do you think that would have made a difference? Mr.Hensler said one of the things he didn't have was the plat number.When I asked them to review it I pointed out that I didn't know the plat number.I was expecting to get that from them.That was supposed to have been put on the application.After this all went down and found out this permit was not legitimate and after they admitted their mistake,one person looked at me and said you didn't have the plat number on the application.I told them I knew that when I turned i t in and I pointed that out.I am going to take responsibility for whatever result is handed here tonight. Rudy Esquivias,Interim Development Services Director, responded to Board Member Spelman's question on the paperwork that says Apache Junction.There are a lot of properties near our city limits that are addressed as Apache Junction,but the properties are not in our city limits. That in itself would not have been a telltale factor. Chairwoman Gardner commented that some properties west of Meridian also consider themselves Apache Junction. BOARD OF ADJUSTMENT AND APPEALS APRIL 14,2003 PAGE 8 OF 11 Rudy Esquivias,Interim Development Services Director,said that is correct.We received mail saying that the City of Mesa had requested to the regional post office that everything west of Meridian be called Mesa for mailing purposes. Board Member Selman said that Mr.Hensler was offered three (3)different options.What if we denied this.What would it take to do option #2?Option #2 is showing two (2)additional feet along the southern edge of the pool.What would that entail you to do? Mr.Hensler said that we would have to re -excavate the site and use that excavation material to sandbag the other side of the pool and any other area that the line indicated that we had to fill in.The first step would be to take everything out that has been done.You cannot reuse the steel.The plumbing would be removed,we would move the electrical,and then start over. Chairwoman Gardner asked Mr.Hensler if there is a fence around this pool? Mr.Hensler answered right now the outer barrier is there with the gate and the proper closures still have to be done.The fencing requirement is not that the whole pool is encircled,i t is that the pool is isolated from other entrances to the property. Chairwoman Gardner asked if the pool could be shortened two feet? Mr.Hensler said if it was 17 or 18 feet wide that might not be such a loss.This isn't a large pool so i t really wouldn't be feasible. Chairwoman Gardner asked if there was anyone that wished to speak for or against this item?Please state your name and address for the record. Melissa Mehler-Dusek,3687 S.Warner Drive,Apache Junction, addressed the Board.We are their neighbors.There are several neighbors that have discussed this situation.None of the neighbors have a problem with what they are doing.We are here to support them. Chairwoman Gardner asked if there was anyone else that wished to address the Board on this item.Hearing none,the public hearing is closed and opened to Board Members for discussion.Hearing none,Chairwoman BOARD OF ADJUSTMENT AND APPEALS APRIL 14,2003 PAGE 9 OF 11 Gardner called for a motion. Board Member Austin commented that he realizes that this is a very difficult situation in view of the circumstances.We do have building codes and city ordinances that we need to abide by.So in view of this: Board Member Austin MOVED THAT CASE BA -1-03,A REQUEST BY ALLAN HENSLER OF PLATINUM POOLS INC.,ON BEHALF OF OLLIE BENSON AND MAXINE BROWN -BENSON,FOR A VARIANCE TO THE ZONING ORDINANCE,SECTION 6.0128(C)1, LOCATION OF SWIMMING POOLS,POOLS AND PONDS,ALLOWING A SWIMMING POOL TO ENCROACH INTO A REQUIRED SETBACK BE DENIED.THE SUGGESTED FINDING FOR DENIAL: 1)THE LOCATION OF THE POOL DOES NOT MEET THE INTENT OF THE ZONING ORDINANCE. Vice Chair McGahan SECONDED THE MOTION. MOTION CARRIED FOR DENIAL VOTE 4-0 Chairwoman Gardner told Mr.& Mrs.Benson that she is personally sorry,but we do have rules to abide by.At this time we have voted and you will receive a copy of this information. Rudy Esquivias,Interim Development Services Director, advised that any person aggrieved by any decision of the Board of Adjustment may at any time within thirty (30)days of said decision,file a complaint for special ,action in Superior Court to -review any board decision pursuant to Arizona Revised Statutes ("ARS")§9-462.06. OLD BUSINESS None NEW BUSINESS None REQUEST OF STAFF None INFORMATION AND REPORTS None BOARD OF ADJUSTMENT AND APPEALS APRIL 14,2003 PAGE 10 OF 11 SELECTION OF MEETINGS,TIMES,LOCATIONS AND PURPOSES BOARD MEMBERS AUSTIN/SPELMAN 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 MAY 12,2003." MOTION CARRIED. ADJOURNMENT There being no further business to discuss,and with no objections,Chairwoman Gardner adjourned the meeting at 7:50 p.m. MARI GARDNER,CHAIRWOMAN RUDY E INTERI NT SORVICES DIRECTOR BOARD OF ADJUSTMENT AND APPEALS APRIL 14,2003 PAGE 11 OF 11