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HomeMy WebLinkAbout2006-04-10 BOA MINUTES BOARD OF ADJUSTMENT AND APPEALS CITY COUNCIL CHAMBERS MEETING OF APRIL 10, 2006 The regular meeting of the Board of Adjustment and Appeals of the City of Apache Junction, Arizona, was held on April 10, 2006 , at the Apache Junction City Council Chambers, 300 E . Superstition Boulevard, pursuant to the notice required by law. SYNOPSIS BA-1-06 - Denial of a business license to operate a beauty shop at 1070 S. Wickiup Road CALL TO ORDER Chairwoman Gardner called the meeting to order at 7 : 05 p.m. ROLL CALL Board Members Present : Chairwoman Mari Gardner Board Member Carol Urich Vice Chairwoman Sandra Spelman Board Member Lori D'Amico Board Member Daniel Austin Board Member Jane Jones Vacancy Staff Present : City Attorney Joel Stern Senior Planner/Zoning Administrator Rudy Esquivias Associate Planner Clare Fuchs ACCEPTANCE OF MINUTES OF JANUARY 9, 2006 & DECEMBER 12, 2005 BOARD MEMBERS SPELMAN/JONES M S "I MOVE THAT THE NAMES BE CHANGED ON THE MEMBERS THAT WERE PRESENT ON THE MINUTES OF JANUARY 9, 2006 AND DECEMBER 12, 2005 FROM PASQUALE D'AMICO TO LORI D'AMICO." MOTION CARRIED VOTE 6-0 ACCEPTANCE OF AGENDA BOARD OF ADJUSTMENT AND APPEALS APRIL 10, 2006 PAGE 1 OF 19 BOARD MEMBERS_ AUSTIN/L.D'AMICO M S "I MOVE TO ACCEPT THE AGENDA AND MINUTES OF JANUARY 9, 2006 AND DECEMBER 12, 2005 ." PUBLIC HEARINGS BA-1-06 This is an appeal of the Zoning Administrator ' s interpretation of the definition of "Home Based Occupation", by John and Mary Williams, stemming from the denial of a business license request to operate a beauty salon on a GR zoned property at 1070 South Wickiup Road. Associate Planner Clare Fuchs reported that there was a beauty salon constructed at the site and was operating at the residence in an accessory structure in the required rear yard. It is important to understand that the structure that the beauty salon was built in was put in an existing metal awning/garage . Through the site plan, the city process, and county process it was recorded as a metal awning, but it is used currently as a garage . This structure was put inside the metal awning/garage and currently is being used as a beauty salon. The current property owners bought the property on 2-10-98 . Up to that point Fred Schiffer owned the property and he put the metal awning or garage on the property. The current property owners put the separate structure that went inside the garage on the property. The appellant came in to apply for a business license and zoning certificate . The appellant was informed by the Zoning Administrator that a beauty salon was not an allowed use in a General Rural zone and did not meet the definition of a Home Based Occupation. They had not applied for permits to build the separate structure that was put under this metal garage. Another issue is that the garage and therefore the beauty salon was built on a federal patent easement . It is the responsibility of the property owner to list all easements and rights-of-way when submitting a site plan to us for a building permit . It appears that the metal awning is partially constructed in the federal patent easement . We cannot knowingly allow any structure to be built in a federal patent easement . Unless the easement is abandoned by application from the property owner or the City, it cannot be built upon. The zoning in this district is General Rural . The district does allow for some quasi-commercial uses (farming uses and allowing a BOARD OF ADJUSTMENT AND APPEALS APRIL 10 , 2006 PAGE 2 OF 19 small stand to sell items that are grown on the property) . General Rural zoning does not allow beauty salons . The interior structure that is inside the metal garage is 270 . 5 square feet and does exceed the limit that the definition of Home Based Occupation allows. The size of the business, the residential character, and the fact that a commercial service such as this is not specifically an allowed use in a General Rural zone are the reasons that staff did deny their zoning compliance certificate and therefore their business license . Board Member Austin commented that it appears that the current property owners had put in a bathroom in this enclosure and there was a building permit issued for that . Associate Planner Clare Fuchs said that was correct . When the code enforcement case was initiated on January 3 , 2006, the Code Enforcement officer contacted the appellant Mrs . Williams and at that time they said they would come in and apply for a building permit and it was approved. Board Member Austin asked if it indicated that there would be a business operating at that site? Associate Planner Clare Fuchs said the site plan did not show it would be a beauty salon, it showed the addition bathroom to an existing garage . Board Member Austin asked when the Code Enforcement officer wasn' t able to make contact with the Williams ' , would you explain what was meant by, "closed the case". Associate Planner Clare Fuchs answered this was a former employee and we can only go off the record that was left in our case log. An anonymous phone call was made that the structure was being built and starting to operate and Code Enforcement tried to make contact and was not able to make contact so the case was closed. Board Member Austin said you mean he/she gave up and never tried to call again. Associate Planner Clare Fuchs said it would appear that would be the case . Mary Williams, 1070 S . Wickiup Rd. , AJ, addressed the Board. I came to the city and received a BOARD OF ADJUSTMENT AND APPEALS APRIL 10 , 2006 PAGE 3 OF 19 definition of Home Occupation. We feel we have met every criterion that it offers . At the time I did not know I needed a Business License . The building structure already existed. We were told the road behind us was abandoned. We should have had a permit . We have applied for a permit . The beauty shop was already there when the permit was given. My main concern is that when I read this Home Based Occupation, nowhere does it state that you cannot have a beauty shop and nowhere does it state that you cannot perform a service. It states square footage, noises, fumes, etc. I canvassed the neighbors on having a shop and everyone agreed on the shop. I have not had a complaint from anyone in five years . I want to do what is right . It would ruin me to not be able to have my shop. I feel that this home based business occupation is misinterpreted. Vice Chairwoman Spelman asked when you were working for a shop in Apache Junction did they have a city license displayed on their walls? Ms . Williams said she never noticed and the Board of Cosmetology never came in to inspect the shop . Vice Chairwoman Spelman asked when you applied for your bathroom permit was it not already completed before you applied for the permit? You didn' t see a need to apply for the beauty shop permit as well . Mrs . Williams said yes, the bathroom was already completed. The permit was for the whole building not just the bathroom. The permit started out when I had to file for a business license. The beauty shop was there already. Vice Chairwoman Spelman said she understood it to be for the bathroom only. Mrs . Williams said no, it was for the whole building. Board Member Austin said he was confused. Was the beauty shop and the bathroom in this shed when you came in and got a building permit for the bathroom? Mrs . Williams said yes . Board Member Austin asked if it was in operation. Mrs . Williams answered yes . BOARD OF ADJUSTMENT AND APPEALS APRIL 10, 2006 PAGE 4 OF 19 Board Member Austin replied, and no one said anything to you at that time about a building permit . Mrs . Williams said she was confused with that question. We went down and applied for the building permit after the fact and when they came to inspect they said that was fine and shouldn' t have a problem here . Board Member Austin said so when you made the application for the bathroom the part that is the beauty shop was part of that application. Mrs . Williams said that is correct . Board Member Austin replied that he didn' t see any documentation on that . Maybe we can ask staff about that . City Attorney Joel Stern advised you may ask the staff after testimony and then open it up to the public . Chairwoman Gardner asked staff to come forward and clarify. Associate Planner Clare Fuchs said the code enforcement case was brought against the applicant . There were no building permits and business licenses on record. On the application (Exhibit J) it shows the residential permit application, both site plans, and resulting building permit . Chairwoman Gardner said there is a page under Exhibit J as the building permit and it says it has an addition of a bathroom inside of existing garage . That is all it states . Associate Planner Clare Fuchs said that is correct . When they applied for the building permit it was for the addition of the bathroom to the existing garage, but what was actually built was a beauty shop. The purpose of the site plan is for the zoning review. I have no way to know if the applicant gives a more specific or accurate description of what was constructed. When the zoning review took place for the site plan it was stamped approved. Planning does not do an inspection once construction has taken place . Sometimes building inspectors don ' t catch planning errors . Their job is to check for building safety. Mrs . Williams said they are not trying to do anything illegal . I am asking that we can continue BOARD OF ADJUSTMENT AND APPEALS APRIL 10, 2006 PAGE 5 OF 19 with the beauty shop. The whole issue was to get the permit done as a whole not just for one thing. Tom Williams addressed the Board. He said Mr. Klinger, Building Inspector, signed it off . Mr. Klinger said he didn' t see a problem with it . If we can' t do this then we will sell . Mr. Williams told Mr. Esquivias that he knew of other individuals that are doing basically the same thing. One is extracting freon out of old compressors in his garage and has a permit for an office there . There are several others . I asked Mr. Esquivias about that and Mr. Esquivias said, "rat them out". Is that what you are trying to promote in the city is that people should go and rat each other out . We tried to follow the rules . I didn' t think I would need a building permit for a building inside of a building. So, I made a mistake . It reads like we are criminals and we are not . There is a lot of information on this that is incorrect . On the southeast property on the map a man has his trailer right in a road easement and the city okayed that . Another man has 2 mobile homes . He is living in one, one he uses for leather work. A Code Compliance officer said, if a snow bird complains again then move the trailer out for a month and then bring it back, we are not going to step on your lively hood and take away your opportunity to earn a living. We are asking for leniency and a way to make this work. I have asked for help from everybody that I have talked to. I think this is a trumped up case . We are still asking for help from the city and how do we make this work . I didn' t apply for a building permit for a bathroom. It is an accessory building for storage or whatever. I do remember that it was not specifically for a bathroom. I built that whole building with the intention of putting a beauty salon in it . we didn' t see a problem with it . Fine me or whatever you have to do, but don' t take away her livelihood. It states that allowed uses do not include retail sales or business offering products or services . The category of Services is not clear and defined in the Home Based Occupation. It is very vague . We need to make the income . Chairwoman Gardner asked what is fixing hair if it isn ' t a service? Mr. Williams answered service is not on the sheet that I was given. City Attorney Joel Stern asked the Chairwoman if she could identify the document . Board Member Austin read the Home Based Occupation as stated in the Zoning Ordinance, Page 27 . BOARD OF ADJUSTMENT AND APPEALS APRIL 10, 2006 PAGE 6 OF 19 Chairwoman Gardner asked if their business pays taxes on the income? Mr. Williams replied yes, and also state taxes . Chairwoman Gardner asked Mr. Williams if he doesn' t feel the zoning is clear. Mr. Williams said no, it is absolutely not clear. We thought we were within compliance with all of the demands on it . My building and the neighbors mobile home is in the easement . Vice Chairwoman Spelman asked why would you think that you could open a business without a license? She is selling her services . Mr. Williams said we never had in the past . We realize we are not in Illinois . They didn' t require one in Illinois . Vice Chairwoman Spelman said when you open a business in a new community wouldn' t it make sense to find out if you need one . Mr. Williams said that is what we went down and got . We complied with all of that . Board Member Jones said you filled out the application for the building permit and you also signed the original building permit . Mr. Williams said yes . Board Member Jones said does it not state for a bathroom only. It doesn' t state anything in there about a beauty shop. Am I correct? City Attorney Joel Stern asked for identification of document . Board Member Jones said the document is the building permit that he signed that was issued by the City of Apache Junction under Exhibit J. Mr. Williams said when he applied, the woman at the desk helped him to fill out that and she was the one that typed that on there not me. BOARD OF ADJUSTMENT AND APPEALS APRIL 10, 2006 PAGE 7 OF 19 Board Member Jones asked Mr. Williams if he informed that woman that this was also a beauty shop not a building, it was a beauty shop? Mr. Williams answered no, I did not . Board Member Jones replied then that is your error for not telling her. Mr. Williams said you are correct . Board Member Austin wanted Mr. Williams to clarify two statements that Tom had made . #1) you moved in the mobile home in 1999 and it was a 1995 unit that you moved in in 1999 . Mr. Williams said we moved in in 1998 . Board Member Austin said you bought the property in February 1998 . The shell was built by Mr. Shiffer and then you built inside of that shell . Mr. Williams answered correct . Board Member L. D'Amico asked for clarification on the fact that Mr. Shiffer did put up the shell . It also states on Item #2 June 28, 1995 that records show that the mobile home and additions were picked up on the subject parcel during this split . We do not have any building permits for anything other than the metal awning/garage and its additions of a bathroom. So if the bathroom addition was already put on at that point, how could you have added the bathroom? Mr. Williams said that is another mis-clarification. The facts are disarranged. The building was there by Fred Shiffer. As far as I know he got a building permit . The realtor says there are no easements and he filed for everything for the building permit for that residence . As far as we were concerned when purchasing it there was no bathroom in that shed prior to our buying it . We put that in ourselves . There are a bunch of things on here that are not correct . Chairwoman Gardner asked Mr. Williams to state the corrections that needed to be made . Mr. Williams said the permit was issued for the building which is on the easement . The city BOARD OF ADJUSTMENT AND APPEALS APRIL 10 , 2006 PAGE 8 OF 19 signed off on that building apparently because we don' t know that, being that we purchased it from Mr. Schiffer, who is now since deceased. As far as our knowledge, it was signed off by the city, so therefore, it was legal . Item 8, that was Fred Schiffer, 1995, he put the mobile on there . He applied for the building permits, he applied for everything else . The city would not core the road out so Mr. Schiffer cored the road out to connect Wickiup to 12th Avenue . He had the heavy equipment to do SO. The Code Enforcement officer tried to contact us on Article 10 and the case was closed. That was not our fault . If they tried to contact us during the summer, we are not here . It is not our fault to tell us we were in violation or we would have corrected it back then. No attempt was made on Article 11 to our knowledge . Chairwoman Gardner asked if there was anyone that wishes to speak for or against this case . Bill Wilson, 1130 S . Wickiup, addressed the Board. I bought the property long before they moved in. Mr. Schiffer was there and the building was put up. There was a road abandonment applied for by all the neighbors and refused by the city around 10 years ago. They probably moved in with the idea that it had been abandoned and the building was there when they moved in. They take care of their property. You wouldn' t even know the beauty salon was there . There is no reason that it would infringe on anyone . There is no traffic . The Williams ' are not a danger. The people that come there are elderly. It is unfortunate that it is in the easement . It is a professional service and it does not infringe on the public or the community. It is extremely well kept . Ed Houston, 1069 S . Vista Road, addressed the Board. We have been residents of Apache Junction for the past 25 years . I am so thankful that we have a beauty shop next door. They don' t make noise combing someone ' s hair. Before the Williams ' bought the place there was a gentleman in there that ran a construction business . He would start a tractor at 5 in the morning or unload junk at 11 : 00 at night . We are thankful that they are in there now and keep it beautiful . About 12 years ago we put in a petition to abandon the land that you people are talking about . The city was to abandon the easement in back of our place and the Williams ' place . The City Council would not abandon 10`h Avenue, but they did abandon Raindance . Now we have to find out if it was ever abandoned. We are wrong or the city is wrong saying there is an easement on my property and the Williams property. Are we right or the city? This doesn ' t cause traffic, noise and they keep it immaculate . I hope that you will look favorable on them and give them this permit . BOARD OF ADJUSTMENT AND APPEALS APRIL 10, 2006 PAGE 9 OF 19 Sharon Mauldin, 1030 N. Wickiup Road, addressed the Board. My home is north of the Williams ' home . Mary asked if it would bother me if she had a beauty shop. The people are quiet . They are wonderful neighbors . They keep it immaculate . I don' t see a problem at all with the beauty shop. Alan Roby, 1051 S . Wickiup, addressed the Board. I live across the street from the Williams ' . It has never been a secret that Mary did beauty work in the shop. Some neighbor decided they wanted to straighten out everything and have everyone to start jumping through hoops . Our whole neighborhood is nothing but washes . These people did the same thing that everyone else does in Apache Junction. Four months out of the year they do hair work. It is just for a circle of friends . There is no indication that there is a salon being operated. He built her a nice little shop and if you cut it back to 200 square feet your working in a closet . The inside of her shop is immaculate . This whole thing is caused by somebody that wanted to make trouble . They are good standup people . They have never tried to start anything undercover. Kenneth James, 973 S . Vista Road, addressed the Board. I am outside all the time and I never knew there was a business there. That is how quiet it is . Raindance Road runs through my property. I think the city needs to let buyers know this . I also found out that 10`h Street runs through my place . I didn' t know any of these easements were there and I have been there for 2 years . We have no problem with it at all . Mrs . Williams said she keeps reading over and over this Home Based Occupation definition and I don' t see anywhere where it states that I cannot have a beauty shop. I think it is misinterpreted. When I talked with Rudy he brought out a copy from another person that tried to have a beauty shop. And he showed me this is why you can' t . The gal said it was in her house . You can' t have a beauty shop in the house without a separate entrance or a bathroom. I said mine is not in the house . You can' t have a sign. We don' t allow signs . The State Board of Cosmetology requires only a sign by my door, not at the street . Rudy said, but we want this to be invisible . I said this is invisible . No one even knows it is there . For the little bit of time I work when I am here I think that I am complying with all of the issues there on the paper from the city. That is my main concern, if it said you cannot, I would not have . I did not say you cannot . And as far as you Board Member Jones or Spelman, which ever one of you said didn' t I know I needed to have a business license, I do have a license . Not knowing that I didn ' t have a business license wasn ' t something BOARD OF ADJUSTMENT AND APPEALS APRIL 10, 2006 PAGE 10 OF 19 that I did deliberately. I am more than willing to get a business license . I did not do anything knowing that I was not allowed to do that . Chairwoman Gardner said that is our predicament . If we could issue a business license we would have . The reason we can' t is why we are here . We are trying to resolve these issues . Mrs . Williams said she didn ' t even know what an appeal was until Rudy told me . I didn' t know what I was up against . Mr. Williams said when Fred Klinger came to our home and he stood in the beauty salon area he said I see no problem with this . He didn' t even look or go into the bathroom. Even though the permit said that I was applying for a bathroom. The woman at the desk (has long grayish hair) I told her that I was applying for a permit for a building inside of a building and there is going to be a bathroom. And that is what she wrote on the permit . Mr. Klinger said it is done very well and you should see some of the rat holes that he inspects . There is a 50 amp service panel for the building and he didn' t even open up the panel to look at it . Chairwoman Gardner said she thinks he was looking at the safety standpoint of it . Mr. Stern would you clarify on Mr. Klinger' s capacity when they come out and look at a building. City Attorney Joel Stern advised he believes Mr. Klinger is a building/safety inspector. He basically approves or disapproves final building permits . They come out to final the permit . I don' t know what he said. Mr. Klinger is not here tonight . I can' t give you any factual basis on that . You may want to have the staff answer any final questions . Associate Planner Clare Fuchs said she did receive an email from Theryn Hanson/Public Works Dept . She did tell me the federal patent easement on Raindance is still in existence . It is 66 feet in total width (33 feet on each side) , which is typical for the entire city. She didn' t know if this is in the federal patent easement . The only way we could tell for sure would be by survey. Once the city completes the process and if the resolution is adopted by Council it is then recorded by the County. According to the Public Works Dept . there is still an existing federal patent easement on the property. I wanted to reply to Board Member L. D'Amico ' s BOARD OF ADJUSTMENT AND APPEALS APRIL 10 , 2006 PAGE 11 OF 19 statement about the June 28, 1995 issue . The statement reads that the property is split into its current dimensions to create the subject parcel . Pinal County records say that the mobile home and additions were picked up on this subject parcel during the split . I had a poor choice of wording and said we do not have building permits for anything other than the metal awning or garage and its addition of a bathroom at this location. I meant in totality for this entire period from 1995 to now, not for that point in time . I just wanted to make that clear. In addition, it is also important to note that the issue of the definition of Home Based Occupation is only one part of many parts of staff ' s argument . Every property in the city has a zoning and it has a zoning district . With that zoning district comes allowed uses, un-allowed uses, sometimes uses allowed with a Conditional Use Permit, and then sizes for main structure, accessory structure, how far they need to be away from property line, etc. . Not only do we feel that the applicant doesn' t meet the definition of Home Based Occupation, but also according to the zoning district that they are in, which is a General Rural zone, a beauty salon or any kind of retail products or services commercial in nature is not an allowed use . That is another important component to add. Exhibit J under Article 15 Residential Districts talks about what uses are allowed and not allowed. I want to reiterate that a beauty salon or commercial nature, retail services or products are not one of the allowed uses . An allowed use in this district is a home based occupation. However, in addition to not meeting the allowed uses in a General Rural zone we also believe that they do not meet the definition of a Home Based Occupation. Chairwoman Gardner said the question is was the applicant given that information when they came in for a home business to know what was allowed. Associate Planner Clare Fuchs said she wasn' t there at the time . When an applicant comes in to me and asks questions I will ask them what they want to do or ask them to give me a narrative . Then I decide what can go in that zone, what will work and not work, and the options for the applicant . If it is something allowed I copy the zoning district section for them. I can' t say if the Home Based Occupation definition was the only piece of information given to them. Zoning Administrator Rudy Esquivias said even if the easement is abandoned for roadway purposes the utility companies would still retain all of their rights to the utility lines in that 66 feet . We have a long standing policy (a liability issue) we cannot issue a permit to any structure in a utility easement . When Mr. Schiffer built the awning under which the beauty shop was located, he did it after he had been caught BOARD OF ADJUSTMENT AND APPEALS APRIL 10, 2006 PAGE 12 OF 19 for doing construction without permits . He came in after the fact and applied for a permit and gave us a site plan where he shows that his building, I believe, was 43 feet from the center of that easement . We approved the permit . Came to find out it was not 43 feet from the center of easement it was only 21 feet away from the center of easement . He built it in the easement and then gave us a permit with incorrect information so he would not be required to tear it down and move it . The easement is not abandoned. Even if it was you cannot build on it . Uses that are not allowed in zoning districts should be listed specifically. That is very difficult to do. The Zoning Ordinance tells you what uses are allowed. It can' t begin to address what uses are not allowed in the zoning district because those lists would be never-ending. The Zoning Ordinance tells you what you can do in the zoning district . In the General Provisions it tells you what might be allowed under a special permit or conditional use permit . It is incumbent upon the property owner to find out about these things . When talking to a customer I will ask them point blank, what is their intent or long range goal for the property? When I talked with Mrs . Williams at the counter about the beauty shop I told her we don' t normally approve these things in residential zones . She mentioned we did talk about previous cases . There were a couple of cases that I referred to as precedent . I told her she had several options . You can look for a commercial property or subcontract out of someone else ' s shop. She said she didn' t want to do that because you have to give a lot of money to whoever owns the business . One of the reasons for staying on the residential property was financial . The other options did not appear to appeal to her. I mentioned the option of appealing the Zoning Administrator' s Decision. Regarding the definition of Home Occupation, it was mentioned that you can' t cut her back to 200 square feet . That is a clue as to why this type of business is not typically allowed as a home occupation, because you need more room. Residential properties don ' t lend themselves to this type of commercial use . The issue about Mr. Klinger okaying the beauty shop, that bothers me a little bit . I will talk with Mr. Klinger. A CB-1 allows the mixture of residential and commercial uses that is where this type of use could go. Chairwoman Gardner asked if they could ask to rezone their property as CB-1 . Zoning Administrator Rudy Esquivias said the General Plan does not show that area as an area designated for commercial or industrial uses . They could apply for a rezoning and it would not fall under the definition of a Major Amendment to the General Plan. It would probably be very BOARD OF ADJUSTMENT AND APPEALS APRIL 10, 2006 PAGE 13 OF 19 difficult to approve . There may be some grandfathered uses out there . There may be some grandfathered beauty shops in residential zones . This is not a grandfathered use . This was a recently established use . There was a complaint filed with the Code Compliance Office and this is a result of following up on the complaint . Board Member Urich said if we were to overturn this appeal of the Zoning Administrator we would still be forcing the city to grant permits for structures on the utility easements thereby creating liability to the city? City Attorney Joel Stern advised if you were to grant the appeal and give them their zoning to get a business license, the structure would be on an easement that still exists. There are ways to get rid of that easement . They can ask the city to extinguish the easement . This is an easement for roadway and utility purpose . They would come to the city and pay a fee and fill out a form and have neighbors sign off and have the City Engineer look at it . It would then go to City Council for review. They could go separately to the utility companies and ask if they would extinguish their rights to use that area for utilities forever as a city would extinguish its rights to use Raindance Road alignment forever. That is how extinguishments work. If the city issued a business license saying to the owner you can operate there and the utility company wanted to use their 66 feet in the future they could tell the homeowner to move that building in order to put a pipe under it . The owner could have a suit against the city. Yes, there could be a liability. Chairwoman Gardner reopened the hearing to the public. Mr. Williams said could we not sign an affidavit that we would never sue the city. City Attorney Joel Stern advised the correct procedure would be to go through the extinguishment process . The city may have done that in the past . The city may have allowed that in a different subdivision. The owners had to move the structure and the city had to pay even though there was some type of writing. I don ' t think it would hold up. It would be best to get it extinguished legally. It could take 3-4 months with the city portion. Utilities may be more difficult . Some utilities have charged for the signature which would have to be recorded. The Board could look into this and with the applicant ' s permission continue this matter until an extinguishment of both easements takes place . The Board could (assuming documents are filed and recorded) decide the zoning BOARD OF ADJUSTMENT AND APPEALS APRIL 10 , 2006 PAGE 14 OF 19 issue and the Home Based Occupancy issue and decide as to whether you think the Zoning Administrator overstepped on those issues . Board Member Urich asked if Mr. Stern would clarify who would go in to get the abandonment or extinguishment? City Attorney Joel Stern said it would be up to the applicant . The city would not do it . The applicant would also do it for the utilities . We do have a form for the utilities that we can share with the applicant . Board Member Urich said she would like to have Mr. Williams respond to Mr. Stern' s comments. Mr. Williams replied that he would be glad to pursue these avenues to make this work. Board Member Urich asked both the road and utility easements? Mr. Williams answered yes, and everybody. We don' t want to be in trouble . we will be happy to pursue any avenue to make it work. Board Member Austin said we keep talking about the easements . These lots are served by septic tanks . In the future, these septic tanks are going to fail and when they fail it will be mandated by law that the sewer line be run into the area . Not knowing the engineering aspect at this time that easement would be most needed at that time to serve these properties . That easement is up to at least 25 feet . Chairwoman Gardner asked if they would come from the front of the blocks as in other neighborhoods . Board Member Austin replied you need to look at the economics . It is very expensive to run sewer. If it runs up Raindance Road you could be serving on each side without interruption to the main street such as Wickiup Road. That would be the main reason for maintaining that easement . That would be subject to telephone companies, cable companies, etc . City Attorney Joel Stern advised if the applicant goes to each utility they would discuss with the applicant the viability of that particular easement . That is when that issue would come up. It would be an engineering issue . BOARD OF ADJUSTMENT AND APPEALS APRIL 10 , 2006 PAGE 15 OF 19 It should be made clear to the applicant even if that roadway and utility easement is dealt with. There are still other issues such as the zoning issue and home based occupancy issue . Even if he goes through hurdles and it is taken care of in 4 or 5 months and they come back with everything recorded correctly and there are no more easements, you still have to deal with the other issues . Mr. Williams said he understands that part . He doesn' t understand how he could be held liable for someone else ' s actions after he had purchased the property in good faith. I didn' t know the building was on a road easement . The house to the south and west of me is in the easement as well . How can I be held liable for Mr. Schiffer' s big mistake and the city for signing off on it . Chairwoman Gardner asked Mr. Williams if he had his property surveyed when he bought it . Mr. Williams answered yes, I did. Chairwoman Gardner asked if it showed up on the survey? Mr. Williams said I don ' t know I will have to look. City Attorney Joel Stern advised it would show up on the title . There would be exceptions on the title with easements . If they are not on there maybe there is an action from Mr. Williams against the Title Company. Chairwoman Gardner noted at this point we have given you information on the abandonment of an easement and it doesn' t resolve all of the issues tonight . Did you want to pursue and want us to continue this case until later or do you want us to make a decision tonight? Mr. Williams answered I would like to share the win with you . I would gladly pursue the other. In turn, I would like to know what the punishments will be delved out to me for buying a home with a building on the easement and building a building inside a building. Zoning Administrator Rudy Esquivias said if you uphold the Zoning Administrator' s Decision tonight, the license will not be granted. The business should go away. That doesn' t mean the building goes away. That is a separate enforcement action the city would have to initiate to have BOARD OF ADJUSTMENT AND APPEALS APRIL 10 , 2006 PAGE 16 OF 19 buildings relocated on the property. We would need to coordinate with the utilities company, get their input, and talk to the City Engineer' s office . The fundamental issue tonight would be that the business license would be denied and the beauty shop could not operate anymore out of that property. What we would do with the building would have to be discussed. Associate Planner Clare Fuchs reiterated something that she wanted to make sure that the Board is clear on the denial of the business license. The way the process works in planning is we deny a zoning certificate and therefore the business license is denied. A beauty salon is not an allowed use . The applicant did ask me the question if our business license is denied can we still operate the beauty salon if not for profit? I said no, because the use of a beauty salon is not an allowed use even if not for profit . Chairwoman Gardner asked if they could still function until this is settled if they were to have postponement? City Attorney Joel Stern advised legally no, they don' t have a business license . They are in violation now because they do not have a business license . They are not paying taxes of 2 . 2% to the city on each transaction. Chairwoman Gardner closed the public hearing and called for a motion. BOARD MEMBER JONES/SPELMAN MIS "I MOVE THAT IN CASE BA-1-06, THE ZONING ADMINISTRATOR' S DECISION THAT SECTIONS 5 . 0101 AND 15 . 0101 OF THE ZONING ORDINANCE DOES NOT ALLOW A BEAUTY SALON USE AT 1070 S. WICKIUP ROAD, APACHE JUNCTION, ARIZONA, 85219, AND THE DENIAL OF THE ZONING COMPLIANCE CERTIFICATE FOR A BEAUTY SALON BUSINESS AT 1070 S . WICKIUP ROAD (APN 103-19-011A7) WAS JUSTIFIED BE UPHELD. SUGGESTED FINDINGS ARE: 1 . THAT A BEAUTY SALON USE IN THE GR (GENERAL RURAL) ZONING DISTRICT DOES NOT MEET THE INTENT OF THE ZONING ORDINANCE ' S DEFINITION OF A "HOME BASED OCCUPATION". 2 . THE EVIDENCE PRESENTED DOES NOT SUBSTANTIATE THE APPELLANT' S CLAIM THAT THE ZONING ADMINISTRATOR MISINTERPRETED SECTIONS 5 . 0101 AND 15 . 0101 OF THE ZONING ORDINANCE. 3 . THE APPELLANT HAS UNTIL RECENTLY FAILED TO FOLLOW DUE PROCESS IN OBTAINING PROPER PERMIT AND LICENSES FOR THE SALON STRUCTURE AND USE." BOARD OF ADJUSTMENT AND APPEALS APRIL 10, 2006 PAGE 17 OF 19 MOTION CARRIED VOTE 6-0 Zoning Administrator Rudy Esquivias announced the Zoning Administrator' s Decision continues to be upheld. 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 §9-462 . 06 . OLD BUSINESS None NEW BUSINESS None REQUEST OF STAFF Board Member L. D 'Amico asked if any information regarding the Shell Sign could be shared at the next meeting. Zoning Administrator Rudy Esquivias said that information will be presented at next meeting. Chairwoman Gardner asked if there was information on the 2006 Board and Commissions Conference on November 3 . Zoning Administrator Rudy Esquivias said an email was received. If you would like to attend we will make the arrangements for you. There was good participation last year. EXECUTIVE SECRETARY INFORMATION AND REPORTS None SELECTION OF MEETING DATE, TIMES, LOCATIONS, AND PURPOSES BOARD MEMBERS URICH/SPELMAN M S "I MOVE THAT THE REGULAR MEETING OF THE BOARD OF ADJUSTMENT AND APPEALS BE HELD AT 7 : 00 P.M. ON MAY 8, 2006, AT THE CITY HALL COMPLEX LOCATED AT 300 EAST SUPERSTITION BOULEVARD." MOTION CARRIED VOTE 6-0 BOARD OF ADJUSTMENT AND APPEALS APRIL 10 , 2006 PAGE 18 OF 19 Chairwoman Gardner announced there being no further business to discuss, and with no objections, this meeting is adjourned at 7 :44 p.m. r MARI GARDNER Chairwoman RUD S¢ AS - — Exe u S cretary BOARD OF ADJUSTMENT AND APPEALS APRIL 10, 2006 PAGE 19 OF 19