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HomeMy WebLinkAbout2005-08-08 BOA MINUTESBOARD OF ADJUSTMENT AND APPEALS CITY COUNCIL CHAMBERS MEETING OF AUGUST 8,2005 The regular meeting of the Board of Adjustment and Appeals of the City of Apache Junction,Arizona,was held on August 8,2005 at the Apache Junction City Council Chambers,pursuant to the notice required by law. SYNOPSIS BA -2-05 - Appeal of Zoning Administrator's Decision by Jonathan Wagner.. CALL TO ORDER Chairwoman Gardner called the meeting to order at 7:00 p.m. ROLL CALL Board Members Present:Chairwoman Gardner Vice Chairwoman Spelman Board Member Jones Board Member Urich Board Member Austin Board Member D'Amico Staff Present:Senior Planner/Zoning Administrator Rudy Esquivias Associate Planner Steve Abraham ACCEPTANCE OF AGENDA BOARD MEMBERS AUSTIN/SPELMAN M/S "I MOVE FOR THE APPROVAL OF THE AGENDA." MOTION CARRIED VOTE 6-0 BOARD OF ADJUSTMENT AND APPEALS AUGUST 8,2005 PAGE :1 OF 13 ACCEPTANCE OF MINUTES BOARD MEMBERS URICH/SPELMAN M/S "I MOVE TO ACCEPT THE MINUTES FROM THE MEETING OF FEBRUARY 14,2005 AND MAY 9,2005." MOTION CARRIED VOTE 5-0 (Board Member Jones Abstained) PUBLIC HEARINGS BA -2-05 Appeal of Zoning Administrator's Decision by Jonathan Wagner Chairwoman Gardner introduced -this:case.This is an appeal of the Zoning Administrator's Decision by-Jonathan.Wagner,pursuant to Section 11.0103 (c) of the Zoning Ordinance.The appeal is regarding aAeniai of aloning Compliance Certificate related to an application for a business license.The subject property .is located 330 feet South of the intersection of East lr.Ayenueand South Vista Road on theEast side (1353 South Vista Road). ASsociate ,Planner Steve Abrahuvreported that Mr.Wagner asserts that per Ordinance No.440 his C-'3.(General 'Commercial District) zoned 2.5 gross acre property•(1353 South Vista FOad,.Pinal County Assessor Parcel Number 103.-19A23A)is properly.zoned for an auto recycling/auto wrecking yard and that the TOning ,Administrator has incorrectly - administered Ordinance.No.440 and mistakenly denied:a Toning Compliance Certificate for a business license application: There is a large history:associated with this case starting in,January, 2005:Mr.Frank Busing,a business person.who is not the:owner of the property,applied-for a business license to operate Atlas'East Auto and Truck Recycling:I t is an automotive recyclingtusiness at that location (1353South Vista).During the processing of Mr:Busing's request,another individual,a Mr James Muller;who ,also-is not the owner of the property,applied toTconduct an identical automotive recycling business named AT Rust Free Auto Parts at the same location., BOARD OF ADJUSTMENT AND APPEALS AUGUST 8,2005 PAGE 2 OF 13 After review of available documents.business licensing records, applicable Zoning Codes and Ordinances,including Ordinance No.440, and the Nonconforming Use Regulations,which are technically known as Section 3.0103 through Section 3.0108 of the Zoning Ordinance,the two Zoning Compliance Certificates were denied for the following reasons: 1.The subject site is zoned C-3 (General Commercial District). Auto recycling/auto wrecking uses are not allowed in that district.Auto wrecking and auto recycling are only allowed in the CI -2 (Heavy Industrial)zoning district. 2.Although the site had been previously utilized as a junk yard/automotive recycling it was considered a lawful non- conforming use or commonly known as grandfathered.Records indicate that the lawful use of the property ceased in November of 2003.Under the non -conforming use regulations,when non- conforming uses are not utilized for a period exceeding 12 months the right of lawful non -conformity for that use is considered extinguished. Copies of these denial certificates along with a letter of explanation and options for a course of action were mailed to both business license applicants.They were copied to Mr.Wagner who is the owner of the property.The business license applicants were presented with three options regarding the issue: 1.Apply to rezone the subject site to a zoning district that allows the wrecking yard/auto recycling use. 2.Re -develop the site with a use allowed in the C-3 zoning district. 3.Appeal this decision to the Board of Adjustment and Appeals. While the business license applicant opted not to proceed with any of the options listed above,the property owner chose option three. On November 5,1985,City Council approved Ordinance No.440 under case PZ-61-85,which rezoned the subject site discussed today from GR (General Rural)which is normally a residential zone,to C-3.At the BOARD OF ADJUSTMENT AND APPEALS AUGUST 8,2005 PAGE 3 OF 13 time of the rezoning the existing auto wrecking yard on the subject site was also considered a lawful non -conforming use because the General Rural Zone does not allow auto wrecking and according to the staff report the use had been in existence for some time.The minutes from that meeting show that the applicants in that case requested a rezoning for future redevelopment of the site.Staff and the Planning and Zoning Commission at that time recommended a time frame for the removal of the junk yard use.City Council ultimately approved Ordinance No.440 with a stipulation that the West 33 feet of the subject property be dedicated to the City for roadway purposes.That was done in October of 1985,prior to the rezoning,under document number 1322-874. The site was never redeveloped as the applicants had hoped in 1985. According to city records the use did proceed and continue legally up until October of 2003 when the business license for an auto wrecking yard known as Nel's:Off Trail Wrecking was due for renewal.According to city records,after multiple attempts by the City Clerk's Office to notify the property owner,the applicant Mr.Wagner contacted and informed the Clerk's Office that he was no longer going to start a business at that site.After the matter was referred to the City Prosecutor's Office,Mr.Wagner submitted : a signed statement that he was not operating a business and the case was summarily closed.In addition,the Planning Division discovered that a cease and desist order (ADOT MVD Order Number 5290 was issued. by ADOT Motor Vehicle Division to the applicant,Mr.Wagner, .in October of 20.03,prior to the business license expiration,to cease any and all dismantling or destroying of motor vehicles.According to the business license files there has not been a licensed business at that location since October 31,2003. On September 26,2003,Ms.Rachel Encinas,an employee of the City of Apache Junction City Clerk's Office,received a call from Mr.Wagner. He advised her that he would be opening his business at 1353 SOuth Vista Road in or about 14 days.He advised her that he would complete the forms and mail them in.Ms.Encinas granted Jonathan Wagner an additional 5 business days to complete the forms and return them.The business license applications were never received. On October 17,2003,Ms.Encinas mailed the third and final notices BOARD OF ADJUSTMENT AND APPEALS AUGUST 8,2005 PAGE 4 OF 13 notifying Mr.Wagner,also known as United Recovery and Towing,that an Apache Junction business license was required...This notice was mailed by certified and regular mail.The certified letter was returned unclaimed on November 3,2003. On November 4,2003,Ms.Encinas contacted Mr.Wagner by telephone. Jonathan Wagner advised Ms.Encinas that he was no longer going to start the business and he had been having trouble with his lender.He further stated that he was going to continue cleaning up the property so he could sell it.Ms.Encinas requested that he put that statement in writing and Mr.Wagner stated that he would do so. On December 3,2003,Taleen Carpenter contacted Mr.Wagner by telephone.She advised him that we had not received a statement.Mr. Wagner stated that he would fax over a letter and he is not going to start 'a business. On December 15,2003,.Ms Carpenter forwarded copies Of the business license file to the City Prosecutor Ms Mary Anne Coyne for prosecution. On January 14,2004,Ms.Coyne mailed a notice to Jonathan Wagner requesting that he provide a letter stating that he was no longer conducting business within the limits of the City of:Apache Junction. On February 5,2004,Mr.Wagner contacted the City Prosecutor's office by telephOne and stated that he would provide a letter to theBusiness License Department. On February 13,2004,Ms.Coyne,the City Prosecutor;mailed a:second notice to Mr.Wagner requesting that he provide .a letter stating that - he is no longer conducting a business within the limits of the City of Apache Junction perhis phone -conversation withAhe Prosecutor's Office back on February 5,2004. On February 25,2004,Mr_ Wagner came in to the Business License Office and provided- a signed statement that he is indeed Cleaning up the property to resell it. On February 25;2004,the Business License file was closed and the City BOARD OF ADJUSTMENT AND APPEALS AUGUST 8,2005 PAGE 5 OF 13 Prosecutor's Office closed the prospective prosecution file upon notification of receipt of the letter by the .city Clerk's office: This is important because of the multiple attempts to ,contact Mr. Wagner to inform him :of business license requirements overthe period of 7 months and facing the prospect of prosecution by the;.City Prosecutor. There are'three crucial codes and ordinances affecting the -analysis of this case; .1)Ordinance No.440,2)the C-3 Zoning District (Section 16.0500 of the Zoning Ordinance),and 3)the Non -Conforming Use Regulations.In his application the applicant states that Ordinance No.440 has been misinterpreted.The Zoning' Administrator assumes that the applicant believes-that Ordinance No.440 affords him additional allowances beyond the Non -Conforming Use Regulations that were in effect at the time of rezoning and in effect today.The property was rezoned after 1985.The current date of our Zoning Ordinance and the Non -Conforming Use Regulations have not changed except for a provision that allows the replacement' of utilities on non -conforming uses for health and safety purposes.The core concepts of the Non -Conforming Use Regulations have been largely unchanged since 1985.While the property was rezoned to a district that normallydoes not allow the wrecking yard use,the rezoning was done with complete knowledge that the use was non -conforming done with the prospect of future re- development,. a practice engaged in to this dal)/ by City Council.In fact,recently .City Council rezoned (Case PZ-41-05)a lot to a zoning district that does not allow ,mobile/manufactured homes even though there is a mobile home-currently -and lawfully installed on the property,thus making the use lawfully ,non -conforming and subject to the lawful Non -Conforming Use Regulations at the time of redevelopment. These regulations afford non -conforming uses continued existence beyond a change of code as long as they stay in their "as -is"and "where -is" condition,are not discontinued for a period longer than 12 months,and are, not destroyed beyond 50% of: its reproduction value.Lastly,the C- 3 Zoning ,District does not and has never allowed an auto wrecking/auto recycling use.Thus,an auto wrecking use in a,C-3 Zoning District , meets the definition of non -conformity .(Section,3.0103 of the; Zoning Ordinance) and is subject to the Non -Conforming Use Regulations. Staff uses business licenses as a monitoring and tracking device to BOARD OF ADJUSTMENT AND APPEALS AUGUST 8,2005 PAGE 6 OF 13 observe and to monitor non -conforming uses.The process for acquiring a:business license involves receiving approval from various regulatory bodies and approval from the Zoning Administrator that the uses are appropriate .for:the site at which the business license applicant chooses to conduct business.All of these approvals must be secured before the City Clerk will approve the license.If one of the regulatory bodies either withholds approval for a use,or the approval for that use has expired,the uses from a zoning administration perspective .have ceased-.For example,if the Motor Vehicle Division. ordered a car dealer to stop selling cars due to non-payment of a license,the owner or licensee would summarily stop selling cars to comply with state law.The dealer ceased sales.The use of a car sales lot has stopped for purposes of the Non -Conforming Use Regulations. There are two primary questions here: I)Does Ordinance No.440 afford the appellant additional lawful non -conforming rights beyond the non -conforming use regulations? 2) Was the denial. ofAhe ,Zoning Compliance Certificate which precipitatedtheappeal,justified? Under-OrdinanceAo.440,the Zoning District classification on the Zoning District Map :city of Apache Junctjon,Arizona',for the parcels ofland described as the South half,West half,Northeast'quart& of the, Southwest quarter,' Northwest quarter of Section 27,legal descriptions: do „align with the applicants,be'and bereby is amended: from LGR to C-3:(General Commercial)subjectto the.following stipulation: The applicant to dedicatetheMest 33 feet for public roadway and associated purposes: ThenAhere is Section 2 which repeals any conflicting provisions and SectiOn 3 which providesHfor:severability.The ordinance appears to - have ,been ,adopted and.ln 'a correct and :proper form.I t is signed by,, the Mayor,attested to by the City ,Clerk and,the formbasibeen approved. by the City Attorney ,3t the time.I t appears that this ordinance is whatjt is and was adopted according to -standard-procedure back in 1985 In analyzing the text ofthe:C ,3.Zoning.District,'whiCh that ordinance: BOARD OF ADJUSTMENT AND APPEALS AUGUST 8,2005 PAGE 7 OF 13 lawfully rezoned the'property to,we cannot find the automotive wrecking yard use within the C-3 zoning district and we cannot determine where in Ordinance No.440 the purpose of perpetuating the junk yard indefinitely is spelled out.In fact the property was rezoned with the understanding that the property was going to be. redeveloped with a different use although i t ultimately was not redeveloped. The denial of the Zoning Compliance Certificate was justified simply because records indicate that the auto recycling use' ceased in November of 2003 and was not re -commenced within one year.No additional data has been presented to indicate otherwise.This appeal ihearing is the proper form for the appellant to present such infOrmation to the . Board's satisfaction:If the applicant does have information that would summarily change that fact he can present it this .evening to the Board.• As supported byrthe evidence and as presented here,staff believes that the basis of Mr.Wagner's -.appeal appears to be unsubstantiated to allow or renew the continued use of a non -conforming business unlicensed for moreAhan:a year.Therefore,staff would respectfully ask the Board to uphold the Zoning Administrator's decision and the recommended motions are in the staff report to that effect. The first recommended motion islouphold the_Zoning:Administrator's decision.We also recommend that YOu read all' of the suggested findings .(1-3)and any other findings'that the Board may have. The second motion covers a reversal.That would allow the applicant to continue the: junkyard use -ancLsummariTy -apply for a business license i f need be.The Board would be:ordering the Zoning Administrator to make that a compliant Use and count that" as a compliant: use; We do have the.applicanrs application.Under number 3 he is stating r at the City Council meeting of November 5,2003,this lot Hs properly zoned for its use for which the zoning board has misread the code:. Ordinance No.440 is the core of his argument. Jonathan Wagner,1336 West Nido Avenue,Mesa Arizona,: addressed the Board.I would like to:start with a protest because I have received BOARD OF ADJUSTMENT AND APPEALS AUGUST 8,2005 PAGE 8 OF 13 information that I have not been able to review and leave an option for me to review this pending a decision.I feel that the case presented is missing a lot of the facts.From the City Council Meeting in 1985 there is a whole discussion where i t is stipulated that the auto junkyard be removed within a 12 month period or be deleted from the ordinance.That would be considered an implied consent that the business could continue.Most of it speaks for itself that the City Council should not be involved in removing the auto wrecking yard or any of the cars.Obviously there are different kinds of consents: implied consent,expressed consent,and so forth. The reason why I didn't get a business license was to operate the towing business and I had tenants that were there and continuing to operate it as a wrecking yard.For the entire time from 1962 that i t was opened as a wrecking yard,i t has been continuously used as a wrecking yard to this date. Because of the cease and desist,no one was able to get a business license and therefore,this time should not be considered in the 1 year time frame and the use was continued.Whether my tenants had a license or not I have not heard anything to the contrary. There was a cease and desist ordered on October 3,2003.I obtained the property on July 24,2003.The cease and desist order was dismissed on October 5,2004 That means the 1 year time period would stop -because of the legal impedance. I had a tenant apply .on July 24,2004,which eats up 5 months and 19. days and astonishingly enough they say it only takes 3-7 business days to get a business license..Mysteriously,11 months and 29 days later we get a denial letter from the City of Apache Junction.I find that there is potential for legal problems because it took them four months and 1 day to not issue a business license.It would be my conclusion that because I gave them _a copy of the cease and desist order,I gave a copy of the dismissal of the ,case with Motor Vehicle and with the courts and letting them know -that there still was a 1 year timeperiod available,if that was the case,that they waited an extra 4 months and 1 day to issue a denial letter. If the outcome today is not such to allow us to continue this business there will be a Superior Court action for malice of delay of issuing a BOARD OF ADJUSTMENT AND APPEALS AUGUST 8,2005 PAGE 9 OF 13 business license which is not 3-7 days and not 30-70 days,but over 120 days later. It has cost me many tenants because of the City Business License and the Zoning Department dragging their feet which I have called many times and the answer is still the same 3-7 days that it takes to get a business license.I would ask that the zoning and the implied consent to run a wrecking yard be continued.Before I bought the property on the 20" of July,I sat down with Mr.Robert Mayes who is the proactive abatement program coordinator,commonly known as code compliance, Charles Beck,Associate Planner for Development Services,and Sam Jarjice,Civil Engineer.They assured me that it was zoned a wrecking yard and they are the ones who gave me all of the minutes and the information from the City Council in 1985.They said the only thing that I had to do was fix the electrical box on the panel which has been done and to fix the wooden fence so that you couldn't see through it. Given that there was a legal impedance,the 12 month time period could be disputed and I am saying_that is the case.I or anyone else could not legally -do anything with that property because of the pending court case. Associate Planner Steve Abraham said :that. staff is saying that the business license expired prior to the business license submittal. According to the business license records the non -conforming use had been expired in 2004.The application for a business license was submitted in January. Jonathan Wagner responded that the :issue at hand is that there was legal :impedance.A cease and desist order from -the State Motor Vehicle Department that no activity either by myself or anyone could be conducted on that property until that case.was settled.The case was settled and dismissed without prejudice on August 5,2004.Given the timeline,that would still give me from when the last tenant applied on January 24: 2005.I had only used up 2 months and 9 days of the 1 year time period and 5 months and 19 days which leaves 4 months and 1 day for which to comply.Legal impedance is a standard precedence..The reason this is relevant is I think strategically and with malice,they planned to use_up the 1 year time period after I explained to them the legal impedance situation.I or no one by law could do anything with that property.That would stop the 1 year time period. BOARD OF ADJUSTMENT AND APPEALS AUGUST 8,2005 PAGE 10 OF 13 Senior Planner/Zoning:Administrator Rudy.Esquivias said that in all fairness to the applicant if he would like additional time to review his staff report and put together his arguments,staff would be amenable to a continuance.of this case until the next regularly scheduled meeting for that purpose. Board:Member Jones asked who the owner of the property was in November 1985? Jonathan Wagner answered•Nelson -Williams: _Boar&Member•Jones asked;wheWMr.Wagner obtainedthe:property?- -Jonathan Wagner,ansWerecLaily:24,2003. BbardilemberJonesHasked if she ,.understOodcorrectly that•at this -time the -property•is.still being used as A business for auto wrecking yard? Jonathan WagnerAnsweredAhat'it is still being used as an:automotive. recycling and wrecking yard. Board .Member-Urich.asked if Mr. Wagner had a-copy -of the,bus -Mess license?. Jonathan Wagner said.that he is not the current tenant_ _I• am just the owner of the property.' Board Member Urich asked:if Mr Wagneriknewif the current tenant had a current business license? .Jdnathan Wagner-Answered:that:he. has, no idea Lam assuming that they- -dd not,. based on this hearing,• 1-A6 .not know for sure;Ldo not have arty information. 'BOardilember- AustinHasked-LifMr.Wagner was making an application for a.. business license now ordicl you? Jonathan Wagner answered that he has had two tenants ,apply -and:another one is tentatively applying,-but there -has.been a concern of the existing use definitioni So,on .that'behalf to.make:the-property -marketable either for a renter or for someone to buy .the-property for BOARD OF ADJUSTMENT AND APPEALS AUGUST 8,2005 PAGE 11 OF 13 that use,I am asking for a clarification or to have the existing non- conforming use be continued. Board Member Austin said that he does not fully understand the lawsuit that Mr.Wagner talks about caused from the cease.and desist from the Motor Vehicle Division.Itelieve you said that this is tied into a lawsuit and that is why part of this period of time has lapsed because you could not do anything because of the lawsuit. -Any discussion after this point was lost due to technical difficulties- BOARD MEMBERS URICH/SPELMAN M/S "I MOVE THAT CASE BA -2-05 BE CONTINUED UNTIL THE NEXT MEETING ON SEPTEMBER 12,2005". MOTION CARRIED ,VOTE 6-0 OLD BUSINESS Not recorded NEW BUSINESS Not Recorded ELECTION OF CHAIRPERSON AND VICE CHAIRPERSON BOARD MEMBERS AUSTIN/SPELMAN M/S "I NOMINATE MAR11 GARDNER FOR CHAIRPERSON." MOTION CARRIED VOTE 6-0 BOARD MEMBERS AUSTIN/URICH M/S "I NOMINATE SANDRA SPELMAN FOR VICE CHAIRPERSON." BOARD OF ADJUSTMENT AND APPEALS AUGUST 8,2005 PAGE 12 OF 13 MOTION CARRIED VOTE 6-0 REQUST OF STAFF Not recorded EXECUTIVE SECRETARY INFORMATION AND REPORTS We welcome the brand new appointments of Jane Jones and Lori D'Amico first time Board Members.Welcome aboard. SELECTION OF MEETING DATES,TIMES,LOCATION AND PURPOSES BOARD MEMBERS JONES/D'AMICO M/S "I MOVE THAT THE NEXT REGULAR MEETING BE HELD AT 7:00 P.M.ON SEPTEMBER 12,2005 IN THE CITY COUNCIL CHAMBERS" MOTION CARRIED VOTE 6-0 Chairwoman Gardner announced that the meeting is adjourned. MART GARDNER Chairwoman ROM VsolnhAS Execgi've Secretary BOARD OF ADJUSTMENT AND APPEALS AUGUST 8,2005 PAGE 13 OF 13