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HomeMy WebLinkAbout2006-11-13 BOA MINUTES BOARD OF ADJUSTMENT AND APPEALS CITY COUNCIL CHAMBERS MEETING OF NOVEMBER 13 , 2006 The regular meeting of the Board of Adjustment and Appeals of the City of Apache Junction, Arizona, was held on November 13 , 2006, at the Apache Junction City Council Chambers, 300 E. Superstition Boulevard, pursuant to the notice required by law. SYNOPSIS BA-2-06 - Continued from September 11, 2006 meeting Variance request for existing structure at 2293 W. Windsong Street was denied. BA--3-06 -- Appeal of Zoning Administrator' s Decision by the Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints for church property at SW corner area of W. 16`� Street and S . Ironwood Drive was denied. BA-4-06 - A request for a Variance by the Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints for church property at SW corner area of W. 16`h Street and S. Ironwood Drive was granted with conditions . CALL TO ORDER Chairwoman Gardner called the meeting to order at 7 : 02 p.m. ROLL CALL Board Members Present : Chairwoman Mari Gardner Board Member Carol Urich Board Member Daniel Austin Board Member Samuel Condon Board Members Absent : Board Member Jones Board Member Lori D'Amico Vice Chairwoman Sandra Spelman Staff Present : City Attorney Joel Stern Senior Planner/Zoning Administrator Rudy Esquivias ACCEPTANCE OF AGENDA BOARD OF ADJUSTMENT AND APPEALS NOVEMBER 13 , 2006 PAGE 1 OF 22 BOARD MEMBERS AUSTIN/URICH M S "I MOVE TO ACCEPT THE AGENDA." MOTION CARRIED VOTE 4-0 BOARD MEMBERS AUSTIN/URICH M S "I MOVE TO ACCEPT THE MINUTES OF 4/10/06, 2/13/06, AND 9/11/06 WITH CORRECTION TO 9/11/06 MINUTES ON PAGE 4 OF 5 BY CHANGING THE WORD "SHELL" to "TEXACO". VOTE 4-0 MOTION CARRIED PUBLIC HEARINGS BA-2-06 (continued from meeting of 9-11-06) Chairwoman Gardner announced Case BA-2-06 . It is an appeal by Rita Ulsheimer of the Zoning Administrator' s determination that a structure built on her property, without permits, and in violation of setback requirements, must be removed irregardless of the fact that it may have been built by a previous owner. The applicant is appealing Sections 6 . 0116 and 15 . 0803 of the City of Apache Junction Zoning Ordinance and the property is located at 2293 W. Windsong Street, in Apache Junction, Arizona. Parcel number 100- 32-046 . Zoning Administrator Rudy Esquivias reported that Ms . Ulsheimer purchased the property in 2005 . A 2001 aerial map reveals the home on the property, but no free standing carport . Ms . Ulsheimer states in her narrative that the carport was not of her doing and to the best of her knowledge the carport was built by a previous owner. The property is zoned TH and designated for low density residential uses . The zoning map reveals a mix of zoning districts in the area. For the most part it is a rural area. There is nothing unusual about the area in regards to flood zones or tributaries . Ms . Ulsheimer came in to apply for an awning permit . A search of permits discovered that there was not a permit issued for a carport . We reviewed old aerial maps to determine if it was a pre-existing nonconforming structure . The 1985 map reveals that BOARD OF ADJUSTMENT AND APPEALS NOVEMBER 13, 2006 PAGE 2 OF 22 the property was not developed at all . The 1985 aerial map is the one that is used to determine nonconforming uses (grandfathered uses) . If something was there in 1985 it is probably grandfathered. Sometime between 2001 and when Ms . Ulsheimer applied for her permit back in April, the structure was built . A detached structure falls under the accessory building regulations . A detached accessory structure must be located in the rear yard or in a buildable area where the main building is permitted and shall not cover more than 300 of the rear yard. Accessory buildings shall not be located closer than 4 feet to any property line except that an accessory building exceeding 8 feet in height shall also observe the minimum side yard setback of the district in which located. What that means is, if the structure is less than 7 feet in height it can be 4 feet from the rear property line and 4 feet from the side property line. If the building is more than 8 feet in height it can be 4 feet from the rear property line, but must meet the minimum side yard setback of the district in which located, which means it would have to be 10 feet on a side yard. We have not measured the height of the awning. Irregardless, it does not meet either a 4 foot setback or 10 foot setback. It is in violation with the zoning regulations because it is only 16" from the property line . Since there was not a permit applied for that structure, we have no idea if it is a safe structure or built to any codes . It looks sturdy. However, the appearance of sturdiness does not guarantee it meets building safety codes . That is a health and safety concern. we told Ms . Ulsheimer to seek relief from her realtor. They sold her something that was not a legal structure . Ms . Ulsheimer said she spoke to her realtor and the realtor took no responsibility. Apparently there is a clause in the contract that says she had a certain amount of time to do her own due diligence on the property to see if there were any problems . Ms . Ulsheimer said she did not do her due diligence . Ms . Ulsheimer is stuck with the problem. However, we still have the setback problem and safety problem. If you grant the variance we recommend the conditions and you must state Findings of Fact . Staff believes the request fails to satisfy criteria. Staff believes that there are two places on the property where an awning can be safely and correctly constructed in compliance with setback regulations and in compliance with the building codes . She has a 50 foot setback in the front . The awning could be relocated or it could be placed in the rear yard and still comply with setback requirements . We are not denying Ms . Ulsheimer the opportunity to have a carport, it is just that there is a problem with the BOARD OF ADJUSTMENT AND APPEALS NOVEMBER 13 , 2006 PAGE 3 OF 22 carport that she has . Staff does recommend denial and the Board is reminded that you have to site Findings of Fact on approval or denial . Board Member Urich asked if there had been any public input . Zoning Administrator Rudy Esquivias said one individual called to seek general information about the case . Board Member Condon asked if the property corners are actual corners . was it surveyed? Zoning Administrator Rudy Esquivias answered no, we did not request a survey. We do not typically request a survey for a permit of this type. The measurements are from what the applicant tells us . Chairwoman Gardner asked if it can be located in the front or if the back could be used. Zoning Administrator Rudy Esquivias said yes, sideways, or in the back as it is wide enough to have a driveway on the side. Chairwoman Gardner asked if the applicant would care to address the Board? Rita Ulsheimer, 2293 W. Windsong, Apache Junction, addressed the Board. She thanked the Board for the opportunity to speak. At 7 : 59 a.m. on Saturday morning is when I was hand delivered his findings . I was given only one day. I work 12 hour days, 5 days a week. I was given only one day, a Sunday to prepare for this, to rebut what he had. Could I have a little more than 5 minutes? I think that is only fair. He had a if hour to speak. Chairwoman Gardner asked Ms . Ulsheimer how much time she needed. Ms . Ulsheimer said she has some things to read. I am extremely nervous because I have never done anything like this before. I may fumble and bumble and I really need your indulgence on this, if I could beg your indulgence, please . Chairwoman Gardner said she has no BOARD OF ADJUSTMENT AND APPEALS NOVEMBER 13 , 2006 PAGE 4 OF 22 problem with that if it is within reason. Ms . Ulsheimer said that she purchased this home from a professional real estate investment person who should have known better, but he didn' t . The description of the carport has already been given. My initial examination and measurements suggests that my neighbor may have his fence approximately placed on his property line and I believe that when the inspectors looked at it they looked at it using that as their barrier, where the defining place, where the property line is . I question whether that is correct or not and I don' t have the finances to have a survey done, but I did measure and do some measurements and it appeared that there may be some discrepancy. Arizona Revised Statute 9-462 . 06, others in the district are allowed the privilege of using the structures and if you refer to the pictures of structures in the area, in fact when the inspector came and cited mine, directly across the street is a questionable structure of aluminum poles and tarps . That thing became airborne at the last storm we had. So there is a person being allowed to use their carport of a questionable structure with no permit . There is another structure also across the street made of 1 x 2 wood. No permit was gotten for that . That certainly is not quality construction. I provided you with a picture of mine which is 4 x 4 steel posts imbedded in 4 feet of concrete . I know because I dug a hole to find out how far the concrete went . It is not aluminum, it is all steel . It has a corrugated roof that has been welded and riveted to the support beams . The zoning code lists 3 areas of evidence to be presented during the hearing. The first area is that special circumstances need to apply. The location of the house and related sanitary appurtenances on this property does limit the possible citing of the carport . The septic system of this property is located on the western side yard of the property. Driving or parking atop a septic tank or associated leech field can damage underground pipes and tanks creating a hazard. Rear yard setbacks preclude citing a parking area in the rear yard. There is a shed existing there already. Front yard setbacks would require the carport to be aligned parallel to the street . This would not only be out of character for the neighborhood, but would be aesthetically unpleasing, as most houses in the area are setback from the road about 25-30 feet and have no structures in their back yard. The second area of evidence requested is of unnecessary hardship, preservation, and enjoyment of substantial property rights . I would argue that it is quite common for properties in the area to have covered carports as most do not have enclosed garages to protect cars from destructive influence of the strong Arizona BOARD OF ADJUSTMENT AND APPEALS NOVEMBER 13 , 2006 PAGE 5 OF 22 sun. Erecting a carport on a property in this zone is legal and could be argued that it would be an existing property right . A requirement to remove the structure, as relocation may not be feasible, would be deprivation of property rights by decreasing the value of the property. Due to property conditions including the location of the house and septic system, the location for the carport is limited to the eastern side yard where the carport is currently installed. As mentioned, locating a carport in front of the house would be out of character for the neighborhood. It may be considered an eyesore by neighbors and generate complaints to the city. To my knowledge no neighbors have filed complaints regarding this existing structure . Personal financial constraints would make moving or removing the structure financially hard. In order to remove the structure the concrete footings would have to be demolished, excavated, and re-poured if the structure be moved. Removing the structure entirely would require expenditure for dismantling, transporting and disposal of structure. I am single and currently working for the Maricopa County Sheriff' s Department in an administrative capacity and making less than $20, 000 . 00 a year. Median household income of Apache Junction is at $33, 170 . 00 . I have consulted several firms regarding removal or resituating and have been advised it would require backhoes, bulldozers and arc welders to accomplish the task. This certainly speaks for the integrity of the structure. The cost is beyond the scope of my meager hourly salary. I live paycheck to paycheck. It is only with financial help from my son that I am able to do anything to my home . The third area is health and public safety. Existing structures adjacent as well as across from my home are pictured in the accompanying documents. Many are of substandard construction that is visible even to the untrained eye. Note that they had not been cited, even though they were clearly visible when the inspector visited my home and issued me a citation. One in particular presents the real possibility of causing damage to nearby homes . Chairwoman Gardner said the subject property around there is not the issue tonight . Please stay on the subject of the one today. Ms . Ulsheimer said yes ma' am, I understand that . Thank you. The Equal Protection Clause of the 14'�] Amendment of the United States Constitution prohibits denying any person equal protection under the law. According to Cornell Law School public learning resource, the laws of the state must treat an individual in the same manner as others in similar conditions and circumstances . The equal protection clause is intended to provide equal application of the laws . The question is whether the equal protection clause has been violated when an BOARD OF ADJUSTMENT AND APPEALS NOVEMBER 13, 2006 PAGE 6 OF 22 entity, in this case the City of Apache Junction, grants some individuals the rights to engage in a particular activity and denies the same to others . The Constitution states, "nor shall any state deprive any person of life, liberty, or property nor deny any person within its jurisdiction equal protection of the law." Selective enforcement as I believe has occurred in this case does not constitute equal application of the law. Rather it creates a particular class of individuals to which the law is enforced. The only reason you were even aware of my carport is because I applied for a permit for an awning across the back of my house . This brought you to my doorstep. I was not attempting to circumvent any laws nor was I attempting to lie, hide, or deceive the city in any way. Under the 14*° Amendment I have the right to secure my vehicles just as others do in the area under the very same circumstances . I have the right to equality before the law, equal protection to life, liberty, and property. These rights are inherent and indestructible whereby they may be possessed and enjoyed equally. The equal protection clause provides for equal protection of rights not equal deprivation of rights. I mentioned this because I was informed that those offending, the structures in my photos, would be taken to task as well . These have structures that have existed for years as mine before being brought to your attention today. I was also informed that these structures are allowed to remain there because there isn' t sufficient enforcement for such offenses . That may be, but that does not justify selective application of the law. The city stumbled on a zoning violation and has now chosen to apply the zoning laws selectively in my situation. The Equal Protection Clause is intended to provide equal application of the laws . The result, therefore, of a law is not relevant so long as there is no discrimination in its application. Efforts on my part to locate the previous owner haven' t provided much. My home sat vacant for almost a year before I purchased it and proceeded to make improvements . Now I know why, wiser people wouldn' t buy because of this carport . That was my mistake from which I take a learning experience . It is the lack of honesty on the part of the seller that has caused me to suffer the indignity of the situation as well as laps into insomnia since April of this year. It has taken a toll on my physical and mental well being, but it has left me wiser and unfortunately distrustful of people . Some may consider my situation self imposed. I argue that there is a difference between intentionally self-imposing using deception with hopes of the outcome being positive and the unintended through blind trusting and finding themselves in the predicament that I am now finding myself . With all due respect to the letter of the law as a 60 year old displaced homemaker who BOARD OF ADJUSTMENT AND APPEALS NOVEMBER 13 , 2006 PAGE 7 OF 22 works 12 hour days, survived cancer, domestic abuse, and 911, I would request that the spirit of the law be used and that in this case that I be granted a variance, and be allowed to live in the peace that I traveled across country to find here in my little desert home with whatever remaining years I have ahead of me . I intend to give back to the community by starting a neighborhood watch and am in the process of joining the auxiliary police. Again, I would ask that the spirit of the law be applied. Board Member Austin commented that apparently none of the neighbors have complained about this . Ms . Ulshiemer said nobody has said a thing. The next door neighbor has an aluminum carport and that thing could become airborne and damage me . Chairwoman Gardner said the thing that I see is that most people in the area are not aware of the laws, so if they don't know the law they would not know if something was wrong or right . It is kind of buyer beware . I hate to say that, but that is true . The thing is, just because the neighbors don' t complain is not really what we are here for. We are talking about that one particular carport . Ms. Ulsheimer said she is talking about equal application and not discriminating against anyone . Chairwoman Gardner replied we don' t want to do that either . Ms . Ulsheimer commented because it smacks of that . Board Member Condon asked if Ms . Ulsheimer' s home owners insurance policy would cover the damage to his property if this would collapse on this fellows fence. Ms . Usheimer said she didn' t know. I know his tree collapsed on that already. In the pictures there are lines hoisting up his big tree . It didn' t leave a scratch or didn' t do anything to it . Chairwoman Gardner asked if there was anyone present that would care to speak in opposition or in favor of this case . Hearing none, the public hearing is closed and opened for discussion among Board members . Hearing none, she called for a motion. BOARD OF ADJUSTMENT AND APPEALS NOVEMBER 13 , 2006 PAGE 8 OF 22 BOARD MEMBERS AUSTIN/CONDON M S "I MOVE THAT CASE BA-2-06, A REQUEST BY RITA ULSHEIMER FOR THE BOARD OF ADJUSTMENT AND APPEALS TO GRANT A VARIANCE PURSUANT TO THE CITY OF APACHE JUNCTION ZONING ORDINANCE, SECTION 11 . 0103 (L) AND SECTION 12 . 0102 , REQUESTING TO BE ALLOWED TO KEEP A METAL CARPORT ON THE EAST SIDE OF HER PROPERTY AT 2293 W. WINDSONG STREET (PARCEL #100-32-046) , LOCATED 16 INCHES FROM THE EAST PROPERTY LINE, WHICH WAS BUILT WITHOUT PERMITS AND INSPECTIONS AND IN VIOLATION OF "TH" ZONE (SECTION 15 . 0803) AND ACCESSORY BUILDINGS (SECTION 6 . 0116) SETBACK REQUIREMENTS, BE APPROVED WITH THE FOLLOWING FINDINGS OF FACT: 1) THERE ARE SPECIAL CIRCUMSTANCES OR CONDITIONS APPLICABLE TO THE PROPERTY REFERRED TO IN THE APPLICATION WHICH DO NOT PREVAIL ON OTHER PROPERTY IN THAT ZONE. THOSE SPECIAL CIRCUMSTANCES OR CONDITIONS INCLUDE : a) THE ERROR WAS CAUSED BY A PREVIOUS OWNER. 2) THE STRICT APPLICATION OF THE REGULATIONS WOULD WORK AN UNNECESSARY HARDSHIP AND THE GRANTING OF THE APPLICATION IS NECESSARY FOR THE PRESERVATION AND ENJOYMENT OF SUBSTANTIAL EXISTING PROPERTY RIGHTS, BECAUSE: a) THERE IS NO COMPLAINT FROM SURROUNDING NEIGHBORS. 3) THE GRANTING OF SUCH APPLICATION WILL NOT MATERIALLY AFFECT THE HEALTH OR SAFETY OR 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, BECAUSE : b) THERE WAS NO EVIDENCE INDICATED THAT THIS SITUATION WOULD AFFECT HEALTH AND SAFETY OF THE PERSONS RESIDING OR WORKING IN THE NEIGHBORHOOD." VOTE 2-2 Zoning Administrator Rudy Esquivias stated that it is a tie vote and when a motion is made in the affirmative and then fails for lack of a majority vote then basically, it is the same as a denial . City Attorney Joel Stern said that is correct . BOARD OF ADJUSTMENT AND APPEALS NOVEMBER 13 , 2006 PAGE 9 OF 22 Chairwoman Gardner said the motion fails . Do we have another motion? Board Member Urich asked the City Attorney since the motion failed do we still have to have another motion? City Attorney Joel Stern advised you don' t have to have one, but if there is one the Chair has entertained the option. Right now it has failed and the decision of the Zoning Administrator would stand. At this point something happened in the Council Chambers as the City Attorney Joel Stern said to call 911 . Chairwoman Gardner announced a recess due to a situation in the Chambers. At this time Joel Stern made a telephone call . Board Member Urich asked if it would be better to have a motion on the case? City Attorney Joel Stern replied are you talking about a specific case? Comment was made by City Attorney that she did collapse. Something happened at the Board meeting. BA-3-06 Chairwoman Gardner announced Case BA-3-06, a request by Wayne Facer, representing the Church of Jesus Christ of Latter-day Saints, located at the southwest corner area of West 16`h Avenue and South Ironwood Drive, is requesting an appeal of the Zoning Administrator' s interpretation of the Zoning Ordinance regarding fence heights . Zoning Administrator Rudy Esquivias reported that for Cases BA-3-06 and BA-4-06 the applicants provided the same narrative . They are making two requests : That the Board interpret the Zoning Administrator' s decision in the church' s favor with regard to an issue of an 8 foot chain link fence on the boundary, and They are also asking for clarification on several items related to fence height and setback BOARD OF ADJUSTMENT AND APPEALS NOVEMBER 13, 2006 PAGE 10 OF 22 requirements; if the Board should fail to interpret these items in the church' s favor, then they ask that you grant them a variance. Basically, what they are asking for is if the first one fails please give them the second one . Case BA-3--06 is the appeal and if it fails then it will go to Case BA-4-06 for a variance . The issue is that there is a clause in our Zoning Ordinance which addresses fence heights in the City. Unfortunately there is an omission in it . As written, the code says, "The yard requirements of the ordinance shall not apply to walls or fences less than 4 feet 6 inches in height when located in side or rear yards in residential zoning districts or less than 8 feet in height when required for multi family, commercial and industrial parcels as outlined in Section 16 ." The omission in the previous version of the code contained an additional phrase . what the code should say is, "the yard requirements of this ordinance shall not apply to walls and fences less than 4 feet 6 inches in height when located in front yards or less than 6 feet in height when located in side or rear yards in residential zoning districts ." That is an important omission. Basically, it says on a residential zoned property all fencing in your front yard should not be higher than 4 % feet, but on the side and rear you can go up to 6 feet . The church' s request brought to my attention this omission. Since Ordinance 951 was adopted we have been uniformly applying the fence rule on residential properties as 4 M feet in the front yard and 6 feet on the side and rear. Does it say that? No. The Planning and Zoning Commission is taking up a case to insert this language back into the code . The church says okay there is an omission, the code is vague and non specific, therefore, we should be allowed to have an 8 foot high fence. Maybe the Board is amenable to saying okay the language isn' t there so what do we have, we don' t know. If we were very conservative in how we apply our code, basically what that means is that nobody in the city in a residential zoned property would be allowed to have a fence higher than 4 % feet . In fact that is what it says . If we read the letter of the law that is what it says, you are limited to a 4 % foot fence and never mind that we have been telling everybody for years now, that you could have a 6 foot fence . That is an error. That is a problem and we are working to fix it . From the City' s point of view, that would be my argument that if we are going to look at exactly what it says then we have to acknowledge that there is nothing that says you can have a 6 foot fence, there is nothing in there that says you can have an 8 foot fence unless you are zoned commercial, industrial or multi- family. There are 2 parts of the request . They are asking you to overturn my interpretation of what that clause says . In my BOARD OF ADJUSTMENT AND APPEALS NOVEMBER 13, 2006 PAGE 11 OF 22 response to Mr. Whitehead, this is what the code says, this is what the code should say, as Zoning Administrator and a City common practice, we will allow you to have a 6 foot fence . They want an 8 foot fence . When the City allows fences that are taller than would normally be allowed we ask people to meet the setback requirements . Normally our landscape code in residential subdivisions calls for a 20 foot landscape easement around the perimeter of the subdivision, in other words along the streetscape . Does the land outside the fence become a no-mans land? No. It is still the responsibility and under the ownership of the adjacent property owners . We gave the church several options. They do meet setback requirements except for the west side which is only 5 feet . Another suggestion was to combine the oddly shaped parcels . Some of the options were not acceptable to the church. What the church wants is an 8 foot fence on the property line . The main issue is where can you put an 8 foot fence . My suggestion is that the Board take a conservative interpretation of this section of the code . It says 4 % feet, it does not say 6 feet or 8 feet . I would ask you to support the Zoning Administrator' s decision. That said, we recognize that the church is not a typical single family use . There are special circumstances that are applicable to the property which make it different than other property in the same zoning district . Staff is recognizing that there are special circumstances applicable to the property and recommending that the Board grant the church a variance for an 8 foot fence. Our code does allow for the Board of Adjustment to impose conditions of approval for a variance. One of the things we are asking for is in the interest of improving the neighborhood and in the interest of coming up with a design that is complimentary and a positive addition to the neighborhood. We would like to see something better than an 8 foot chain link fence . The condition of approval that we are recommending is that the church be allowed to build an 8 foot fence, but that the fence be a decorative wrought iron fence with intermittent masonry columns that matches the architectural character of the meeting house. We are asking that the fence be required for the west, north, and east sides of the property, but the 8 foot fence on the south side that will not be viewed from the right-of-way can be a chain link fence . Staff is recommending in favor of the variance and read the Findings of Fact and the Conditions of Approval to the Board. Mr. Esquivias also read the motion for denial of the variance to the Board. Board Member Austin asked Mr. BOARD OF ADJUSTMENT AND APPEALS NOVEMBER 13 , 2006 PAGE 12 OF 22 Esquivias to indicate on the map exactly where again the fence would be located. Chairwoman Gardner asked if the applicant or representative would care to address the Board? President Stanley C. Lawlor, 9915 E. Butte Street, Mesa, AZ, addressed the Board. I want to thank the Board for their time and acknowledge the help from Mr. Esquivias. In this case we feel compelled to ask for a variance . When it came time to renew the lease in December of 2005 to the City, we opted not to renew the lease but to use it further for our families . We asked the City to remove all the improvements that they put in the park property. People continued to feel like it was park property even though signs were removed and we put up private property signs . Vandalism continued, lewd acts, alcohol consumption and drug buys and the final blow was the confrontation to some of our women. Our concerns are that a child could be apprehended or taken away in a moment' s neglect and the continuation of the vandalism. Our big concern is to keep the trespassers out . We feel strongly about an 8 foot fence . We feel a wrought iron fence would not be conducive to a ball park. My biggest concern has been for the security and safety of our families, our women and children, and to prevent the acts that are offensive to us and to our beliefs . On our Sabbath people come and use the park and it is offensive to our members when they are in worship service . It was built with great love and sacrifice, and feel it is a contribution to the area. We would ask that we be allowed to have the chain link fence recognizing 8 feet over 6 feet because the 8 foot is harder to scale . The addition of the wrought iron around the sides that are recommended would have the effect of blocking off additional view and separating us from the park that we so dearly want to use . There is also a cost consideration. The public doesn' t drive through the parking lot, along the fence next to Desert Bible Chapel, nor do they drive through the parking lot to the east, but they do on 16"' Avenue. Chairwoman Gardner asked Mr. Lawlor if they would consider putting the fence on IC Avenue with wrought iron, and the other areas with chain link. Gentleman from audience spoke up and said there would be significant cost -unintelligible word - . Mr. Lawlor said we feel strongly and we would request that we be permitted to have a chain link fence on the west, south, and east, so that we can enjoy the BOARD OF ADJUSTMENT AND APPEALS NOVEMBER 13 , 2006 PAGE 13 OF 22 facility and we can see who is there and see what is happening. Little kids hands won' t go through and get stuck and if a Rotweiller dog got loose little kids hands can' t go through. We ask that you consider that . Chairwoman Gardner asked if there was anyone that wished to speak for or against this case. Robert C. Pierson, 269 N. Winchester, #94, Apache Junction, addressed the Board. I am a member of the church. One of my assignments is to check that the church building doors and facility at night are secure . What I saw were undesirable people in the park, at the time the park was leased to the City. I am very much in favor of having that park closed off to protect the church and the lot . Chairwoman Gardner announced with no other speakers the public hearing is closed and opened for discussion among Board members . Board Member Austin asked the City Attorney if it would be possible if we could vote on the motion of BA-4-06 first . If the motion were approved then BA-3-06 is redundant. Is it not? City Attorney Joel Stern advised you would entertain a motion and if a motion is made on either one, I will turn to Mr. Esquivias for why he put it in this order. The fact that the Planning and Zoning Commission may see some aspect of a similar case I don' t think has any relevance here. Do you want to respond? Zoning Administrator Rudy Esquivias said the reason that I put the motions in the order I did was basically following the applicant' s letter. They were first asking the Board to overturn my interpretations of `no, you can' t have an 8 foot fence on the property line' and `yes, setbacks are the same as yard requirements' . They were challenging that first and foremost . I think what they were trying to say is if you disagree with me then you would let them have the 8 foot fence by default . However, if you did agree with me then they would request that you grant them a variance anyway. If you read through the September 11 letter submitted by Mr. Whitehead where he lists for the Board to consider 3 things; 1) the interpretation, 2) the appeal, and 3) the variance, that is why I put them in the order that I did. We loosely talked about the matters of interpretation, but as far as the 2 applications, the appeal , and then the variance in that order, that is why the BOARD OF ADJUSTMENT AND APPEALS NOVEMBER 13 , 2006 PAGE 14 OF 22 motion is in that order. Board Member Austin asked if it would make any difference if we made a motion on BA-4-06 first . Zoning Administrator Rudy Esquivias said no, that is the Board' s preference . I think you may still have to take action on both items . There were two separate applications . Chairwoman Gardner said Case BA-3- 06 is the one we are entertaining now. City Attorney Joel Stern said it is a separate hearing. That is correct . They have the due process right of being heard on both items. Some of the material is a cross over. They are 2 separate hearings . Chairwoman Gardner said let us go ahead and do BA-3-06 and then go on to next one . With no further discussions, I will call for a motion. BOARD MEMBER AUSTIN/URICH M S "I MOVE THAT IN CASE BA-3-06, A REQUEST FOR AN APPEAL OF THE ZONING ADMINISTRATOR'S DECISION PURSUANT TO THE APACHE JUNCTION ZONING ORDINANCE SECTION 11 . 0103 (C) , BY THE CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, REPRESENTED BY WAYNE FACER, THAT AN 8-FOOT HIGH FENCE CANNOT BE PERMITTED ON THE CHURCH'S CR-3 OR CR-3/PD PROPERTY BOUNDARY, BE DENIED." VOTE 3 1 MOTION APPROVED - FOR DENIAL OF THE APPEAL OF THE ZONING ADMINISTRATOR'S DECISION. City Attorney Joel Stern advised we did need to state Findings of Fact . BOARD MEMBERS URICH/AUSTIN M S "IMAKE A MOTION FOR THE FINDINGS OF FACT: 1) ZONING ORDINANCE SECTION 6 . 0112 AS CURRENTLY WRITTEN DOES NOT SPECIFICALLY ALLOW FENCES TALLER THAN 4 FEET 6 INCHES ON A PROPERTY BOUNDARY, AND QUESTIONS REGARDING TALLER FENCES SHOULD BE REFERRED TO THE BOARD OF ADJUSTMENT UNTIL CLARIFIED. BOARD OF ADJUSTMENT AND APPEALS NOVEMBER 13 , 2006 PAGE 15 OF 22 2) THE "YARD REQUIREMENTS" REFERENCE IN SECTION 6 . 0112 MAY BE INTERPRETED TO BE ONE AND THE SAME AS "SETBACK REQUIREMENTS". 3) INSTITUTIONAL USES SUCH AS CHURCHES AND RECREATIONAL PROPERTIES SHOULD NOT BE TREATED AS COMMERCIAL PROPERTIES FOR THE PURPOSE OF FENCE REQUIREMENTS ." VOTE 3-1 MOTION CARRIED - THE REQUEST TO APPEAL THE ZONING ADMINISTRATOR' S DECISION STANDS DENIED. BA-4-06 Chairwoman Gardner announced that this case is similar to BA-3-06 except a variance is different . Zoning Administrator Rudy Esquivias said it is a different request . Case BA-4-06 is a variance requesting that the Board allow the church to have an 8 foot fence . I have given you 2 motions. One is for approval and one for denial of the variance request . In the first motion basically you are stating the Findings of Fact in the positive for the church. The motion of approval also contains recommended conditions regarding the wrought iron fence . We are asking for a wrought iron fence on the north, west, and east . You can change it to require north only. The second condition of approval was asking the applicant to make sure they get a permit for an 8 foot fence . The first motion is for approval . The second motion is if you want to deny the 8 foot fence altogether and then also giving you some possible Findings of Fact for a motion of denial . It is your choice whether to make a motion for approval or denial each with its own findings of fact, and the motion for approval with possible conditions you may want to consider. City Attorney Joel Stern advised being that this is a separate item, I think Mr. Esquivias should put on evidence similar to the other case that establishes the factual basis. That would have to be done as if this was a new item. Zoning Administrator Rudy Esquivias replied with respect to the City Attorney, the motion for an appeal I think carries a lesser burden of proof than the motion for a variance . The motion for a variance has 3 specific criteria, whereas the appeal is more of a matter of interpretation. BOARD OF ADJUSTMENT AND APPEALS NOVEMBER 13 , 2006 PAGE 16 OF 22 City Attorney Joel Stern said, but I do think some evidence needs to be put on as a factual basis . The applicant will be given the opportunity to be heard and the public will also have a chance for input . Zoning Administrator Rudy Esquivias said we have covered the issues in the staff report . There are two possible motions on the variance; one is for approval and one for denial . If you decide to approve the variance for an 8 foot fence, you need to include the Findings of Fact reflected on page 5 and 6 of the staff report . You can condition a motion for approval as reported on page 6 of the staff report . You can also recommend a motion for denial of the variance along with Findings of Fact as reported on page 6 of the staff report . Mr. Esquivias explained to Chairwoman Gardner what was meant by, "the other administrative options available to the church", in #2 of Findings of Fact in the denial motion. Chairwoman Gardner asked if the applicant would care to address the Board. Stanley C. Lawlor, 9915 E. Butte Street, addressed the Board. Approximately 4700 people use the facility. I want to be clear that we feel like the view would not be obstructed because of the chain link fence . We are not different or special than anybody else . we feel the property is different than residential, the use is different . we feel compelled in this case . In regard to the trade offs, recognizing the cost also of the wrought iron completely around would be prohibited as it would be for any church. Chairwoman Gardner asked if there was anyone that wished to speak for or against this case . John Nelson, 2267 E. 357' Avenue, Apache Junction, addressed the Board. I do believe an 8 foot fence is a deterrent to people versus a 6 foot fence . There is a current fence along the south side. The chain link fence has been vandalized. If the fence is put together correctly with all of the poles that are supposed to be there it would be structurally sound and better looking than the type of fence that is there now. I would think an 8 foot fence is a deterrent as long as it is put together properly. Mr. Lawlor replied that the fence was put there 20 years ago. BOARD OF ADJUSTMENT AND APPEALS NOVEMBER 13 , 2006 PAGE 17 OF 22 Chairwoman Gardner announced with no further comments, the public hearing is closed and opened for discussion among the Board members . Chairwoman Gardner asked if there is anything in the code if they could put up razor wire. Does it need to be specified? Zoning Administrator Rudy Esquivias said that razor wire, barbed wire, or electric fences are not allowed to be used in single family residential districts other than General Rural . Chairwoman Gardner announced at this time she would entertain a motion. BOARD MEMBERS URICH/CONDON MIS "I MOVE THAT CASE BA-4-06 , A REQUEST BY THE CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, REPRESENTED BY WAYNE FACER, FOR THE BOARD OF ADJUSTMENT AND APPEALS TO GRANT A VARIANCE PURSUANT TO THE CITY OF APACHE JUNCTION ZONING ORDINANCE, SECTION 11 . 0103 (L) AND SECTION 12 . 0102, REQUESTING TO BE ALLOWED TO CONSTRUCT AN 8-FOOT FENCE ON THE WEST PROPERTY BOUNDARY OF THE CR-3 AND CR-3/PD-ZONED LDS CHURCH AND RECREATIONAL PROPERTY LOCATED AT THE SOUTHWEST CORNER AREA OF W. 16" AVENUE AND S. IRONWOOD DRIVE (PARCEL NUMBERS 102-11-013A & 013C) , BE APPROVED. THE FINDINGS OF FACT ARE AS FOLLOWS : 1 . THERE ARE SPECIAL CIRCUMSTANCES OR CONDITIONS APPLICABLE TO THE PROPERTY REFERRED TO IN THE APPLICATION WHICH DO NOT PREVAIL ON OTHER PROPERTY IN THAT ZONE. THOSE SPECIAL CIRCUMSTANCES OR CONDITIONS INCLUDE: a. EVEN THOUGH THE CHURCH AND PRIVATE RECREATIONAL FACILITY IS ZONED SINGLE-FAMILY RESIDENTIAL, IT IS NOT A RESIDENTIAL USE, NOR A PUBLIC PROPERTY. b. THE PRESENT OPENNESS OF THE PRIVATE RECREATION AREA ATTRACTS PEOPLE AND PROBLEMS WHICH ARE NOT TYPICAL TO RESIDENTIAL USES IN THAT ZONE . C. NEIGHBORING PROPERTIES WOULD BENEFIT FROM A TALLER BOUNDARY FENCE GIVEN THE RECREATIONAL USES, SUCH AS SOFTBALL, CONDUCTED ON THE PROPERTY. BOARD OF ADJUSTMENT AND APPEALS NOVEMBER 13 , 2006 PAGE 18 OF 22 2 . THE STRICT APPLICATION OF THE REGULATIONS WOULD WORK AN UNNECESSARY HARDSHIP AND THE GRANTING OF THE APPLICATION IS NECESSARY FOR THE PRESERVATION AND ENJOYMENT OF SUBSTANTIAL EXISTING PROPERTY RIGHTS, BECAUSE: a. WITHOUT AN EFFECTIVE FENCE THE RECREATIONAL PROPERTY WILL CONTINUE TO SUFFER DAMAGE, VANDALISM AND TRESPASS . 3 . THE GRANTING OF SUCH APPLICATION WILL NOT MATERIALLY AFFECT THE HEALTH OR 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, BECAUSE: a. IT MAY ACTUALLY HELP TO PREVENT ACCIDENTAL INJURY TO PERSONS ON ADJOINING PROPERTIES, OR TO PERSONS WHO WOULD OTHERWISE TRY TO ACCESS THE PROPERTY WITHOUT AUTHORIZATION. CONDITIONS OF APPROVAL: 1 . THE PROPERTY OWNERS SHALL BE ALLOWED TO CONSTRUCT AN 8-FOOT-HIGH FENCE IN THE LOCATIONS SHOWN ON THE DRAWING LABELED "EXHIBIT E", EXCEPT THAT THE FENCE ON THE WEST, NORTH, AND EAST SIDES OF THE RECREATION PROPERTY SHALL BE A DECORATIVE WROUGHT IRON FENCE WITH INTERMITTENT MASONRY COLUMNS TO MATCH THE COLORS AND CHARACTER OF THE MEETING HOUSE BUILDING. 2 . THE PROPERTY OWNERS SHALL SUBMIT THE PROPER PLANS AND MAKE APPLICATION TO THE CITY' S DEVELOPMENT SERVICES DEPARTMENT, WHO MUST REVIEW AND APPROVE SAID PLANS, PRIOR TO CONSTRUCTING THE FENCE. Chairwoman Gardner asked for a second on the motion. Board Member Austin asked if he could amend the motion. City Attorney Joel Stern advised you can ask the motion maker if she would accept the amendment and then have a vote on it . Board Member Austin said his proposed amendment would be that the wrought iron fence be on the BOARD OF ADJUSTMENT AND APPEALS NOVEMBER 13 , 2006 PAGE 19 OF 22 north side of the property only and that the west and east side be a chain link fence, therefore, the wrought iron fence would be on the 16`h Avenue side only. Board Member Urich asked Board Member Austin to make his amendment . Board Member Austin stated his amendment to the motion. THE PROPERTY OWNER SHALL BE ALLOWED TO INSTRUCT AN 8 FOOT HIGH FENCE IN THE LOCATION SHOWN ON DRAWING LABELED "E" EXCEPT THAT THE FENCE ON THE NORTH ONLY SHALL BE DECORATIVE WROUGHT IRON FENCE WITH INTERMITTENT MASONRY COLUMNS TO MATCH THE COLORS AND CHARACTER OF THE MEETING HOUSE BUILDING AND THAT THE WEST AND EAST SIDES OF THE PROPERTY BE A CHAIN LINK FENCE. Board Member Urich said she would accept that amendment . City Attorney Joel Stern advised the motion essentially includes all of the findings and the only condition that is being changed is that the wrought iron fence be on the north side of the property only and the west, east and south can be an 8 foot-high chain link fence . Board Member Urich accepted the amendment . Chairwoman Gardner announced we have a motion and we have the amendment added to the original motion and now a second on the motion is needed. Board Member Condon SECONDED THE MOTION. VOTE 4-0 MOTION CARRIED Zoning Administrator Rudy Esquivias announced that the variance is approved with all the Findings of Fact and with condition #1 to require wrought iron on the north side only. The other 3 sides can be an 8 foot chain link. City Attorney Joel Stern advised there is an appeal procedure with Superior Court within 30 days of today' s date . Mr. Lawlor asked about receiving BOARD OF ADJUSTMENT AND APPEALS NOVEMBER 13 , 2006 PAGE 20 OF 22 paper work that they would take to the City when they apply for permits on this variance. Zoning Administrator Rudy Esquivias said the action of the Board tonight is followed up by what is called a "Board Order" or basically we will document the action that the Board has taken tonight and provide you with a copy and signed by the Chairwoman. City Attorney Joel Stern advised 30 days starts to run once the Board Order is received, rather than tonight' s date, if you are going to appeal it . OLD BUSINESS None NEW BUSINESS None REQUEST OF STAFF Chairwoman Gardner requested to receive at the next meeting updated information on the Shell Station and the beauty shop. What has transpired? EXECUTIVE SECRETARY INFORMATION AND REPORTS None SELECTION OF MEETING DATE, TIMES, LOCATIONS, AND PURPOSES BOARD MEMBERS AUSTIN/CONDON M S "I MOVE THAT THE REGULAR MEETING OF THE BOARD OF ADJUSTMENT AND APPEALS BE HELD AT 7 : 00 P.M. ON DECEMBER 11, 2006, AT THE CITY HALL COMPLEX LOCATED AT 300 EAST SUPERSTITION BOULEVARD." VOTE 4-0 MOTION CARRIED Chairwoman Gardner announced there being no further business to discuss, and with no objections, this meeting is adjourned. , MARA GARDNE Cha woman BOARD OF ADJUSTMENT AND APPEALS NOVEMBER 13 , 2006 PAGE 21 OF 22 t RUD TEP Q IA Exec T e Sec etary BOARD OF ADJUSTMENT AND APPEALS NOVEMBER 13 , 2006 PAGE 22 OF 22 ORDER BOARD OF ADJUSTMENT AND APPEALS CITY OF APACHE JUNCTION, ARIZONA CASE NO. BA-2 -06 DATE OF PUBLIC HEARING: November 13th, 2006 APPLICANT: Rita Ulsheimer PROPERTY LOCATION: 2293 W. Windsong Street TAX ASSESSOR' S PARCEL # : 100-32-046 SIZE OF SUBJECT PARCEL: 9768 net sq. ft . ( .22 net acres) ZONING DISTRICT: TH (Trailer Homesite) , Zonin Ordinance, Section 15 . 0800 REQUEST: The applicant is requesting a side yard setback variance, requesting to be allowed to keep a free- standing metal carport which does not meet setbacks and which was constructed without a building permit . Normally a free-standing carport 8 feet or less in height would be required to meet a 4--foot side setback pursuant to the Apache Junction City Code, Volume II, Land Development Code, Chapter 1, Zoning Ordinance, Section 6 . 0116, and a free--standing carport greater than 8 feet in height would be required to meet a 10-foot side setback pursuant Section 6 . 0116 and Section 15 . 0803 of said Code . The carport in question is only 16 inches from the side property line . BOARD OF ADJUSTMENT ORDER - BA-2-06 PAGE 1 OF 3 BOARD AUTHORIZATION: Pursuant to the Apache Junction City Code, Volume II, Land Development Code, Chapter 1, Zoning Ordinance, Article 11, Section 11 . 0103 Powers, Subsection (L) , which empowers the Board to: L: "Authorize variances from the strict application of the provisions of this Ordinance in cases in which strict application of such provisions would result in the serious impairment of substantial property right" ; and Section 12 . 0102 Evidence Required for Variance . Board of Adjustment Action: Motion and Second by Board Members Austin/Condon "I move that case BA-2--06, a request by Rita Ulsheimer for the Board of Adjustment and Appeals to grant a variance pursuant to the City of Apache Junction Zoning Ordinance, Section 11 . 0103 (1) and Section 12 . 0102, requesting to be allowed to keep a metal carport on the east side of her property at 2293 W. Windsong Street (Parcel 4100-32-046) , located 16 inches from the east property line, which was built without permits and inspections and in violation of TH Zone (Section 15 . 0803) and Accessory Buildings (Section 6 . 0116) setback requirements, be APPROVED with the following findings of fact : 1 . There are special circumstances or conditions applicable to the property referred to in the application which do not prevail on other property in that zone. Those special circumstances or conditions include : a) The error was caused by a previous owner. BOARD OF ADJUSTMENT ORDER - BA-2--0 6 PAGE 2 OF 3 2 . The strict application of the regulations would work an unnecessary hardship and the granting of the application is necessary for the preservation and enjoyment of substantial existing property rights, because : a) There is no complaint from surrounding neighbors . 3 . The granting of such application will not materially affect the health or 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, because : a) There was no evidence indicated that this situation would affect the health and safety of the persons residing or working in the neighborhood. " VOTE 2-2 : MOTION FAILED FOR LACK OF A MAJORITY VOTE IN THE AFFIRMATIVE, WHICH RESULTS IN A PROCEDURAL DENIAL OF THE VARIANCE REQUEST. SIGNED: /2-,20-0�, MART tj4RDNER, CHAIRWOMAN DATE ATTEST: 111A 1-43 0 RUDY E I X CUTIVE SECRETA Y DA E BOARDI;, JU ME AND APPEALS CC: Rita Ulsheimer, 2293 W. windsong St. , Apache Junction, AZ 85220 Joel Stern, City Attorney George Hoffman, City Manager Kathy Connelly, City Clerk Dennis Dixon, interim Development Services Director City Council Members Planning and Zoning Commission Members Case File SA-2-06 BOARD OF ADJUSTMENT ORDER - BA-2-06 PAGE 3 OF 3 ORDER BOARD OF ADJUSTMENT AND APPEALS CITY OF APACHE JUNCTION, ARIZONA CASE NO. BA-3-06 DATE OF PUBLIC HEARING: November 13th, 2006 APPLICANT: The Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, represented by Wayne Facer, Stanley Lawlor and Allen Woodruff PROPERTY LOCATION: 1720 S . Ironwood Drive (meeting house property) 1747 W. 16th Avenue (park property) TAX ASSESSOR PARCEL #s : 102-11-013A (park) & 102-11-013C (meeting house) SIZE OF SUBJECT PARCELS: 359, 000 net sq. ft . (8 . 24 net acres) for both parcels combined ZONING DISTRICT: CR-3 (Single-family Residence Zone) , Zoning Ordinance, Section 15 . 0400, for most of the park property; and CR-3/PD (Single- family Residence Zone by Planned Development) , pursuant to Ordinance No. 1156, for most of the meeting house property. REQUEST: The applicants are requesting an appeal of the Zoning Administra- tor' s decision relative to City codes regarding fence heights and where boundary fences may be placed, particularly with regard to their request to erect an 8- foot high fence on their west property line, which was denied by the Zoning Administrator. BOARD OF ADJUSTMENT ORDER - BA-3-06 PAGE 1 OF 3 BOARD AUTHORIZATION: Pursuant to the Apache Junction City Code, Volume II, Land Development Code, Chapter 1, Zoning Ordinance, Article 11, Section 11 . 0103 Powers, Subsection (c) , which empowers the Board to: c: "Hear and decide appeals where it is alleged by the appellant that there is an error in any order, requirement, decision, grant, or refusal made by the Zoning Administrator in the enforcement of the provisions of this Ordinance . " Board of Adjustment Action: Main Motion and Second by Board Members Austin/Urich "I move that in case BA-3-06, a request for an appeal of the Zoning Administrator' s Decision pursuant to the Apache Junction Zoning Ordinance Section 11 . 0103 (c) , by the Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, represented by Wayne Facer, that an 8-foot high fence cannot be permitted on the church' s CR-3 or CR-3/PD property boundary, be DENIED." VOTE 3-1 : MOTION IS APPROVED, DENYING THE APPLICANT' S APPEAL REQUEST AND UPHOLDING THE ZONING ADMINISTRATOR' S DECISION. Motion and Second by Board Members Urich/Austin to add the following Findings of Fact to the Main Motion. "Findings of Fact : 1 . Zoning Ordinance Section 6 . 0112 as currently written does not specifically allow fences taller than 4 ' -6" on a property boundary, and questions regarding taller fences should be referred to the Board of Adjustment until clarified. 2 . The "yard requirements" reference in Section 6 . 0112 may be interpreted to be one and the same as "setback requirements" . BOARD OF ADJUSTMENT ORDER - BA-3-06 PAGE 2 OF 3 3 . Institutional uses such as churches and recreational properties should not be treated as commercial properties for the purpose of fence requirements _ " VOTE 3-1 : MOTION TO ACCEPT THE ABOVE FINDINGS OF FACT WAS APPROVED AND THE REQUEST TO APPEAL THE ZONING ADMINISTRATOR' S DECISION STANDS DENIED. SIGNED: ,`:��,GL� MAR L GARDNER, CHAIRWOMAN DATE ATTEST: RUDY ESQfJAjfA AENT TIVE SECRETARY D TE BOARD OF JUND APPEALS CC: - Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints c/o Wayne Facer, Authorized Agent 50 East North Temple Salt Lake City, Utah 84150 Allen Woodruff 830 E. 2nd Avenue Mesa, AZ 85204 Joel Stern, City Attorney George Hoffman, City Manager Kathy Connelly, City Clerk - Dennis Dixon, Interim Development Services Director - City Council Members Planning and Zoning Commission Members Case File BA-3-06 BOARD OF ADJUSTMENT ORDER - BA-3-06 PAGE 3 OF 3 ORDER BOARD OF ADJUSTMENT AND APPEALS CITY OF APACHE JUNCTION, ARIZONA CASE NO. BA-4-06 DATE OF PUBLIC HEARING: November 13th, 2006 APPLICANT: The Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, represented by Wayne Facer, Stanley Lawlor and Allen Woodruff PROPERTY LOCATION: 1720 S . Ironwood Drive (meeting house property) 1747 W. 16th Avenue (park property) TAX ASSESSOR PARCEL #s : 102-11-013A (park) & 102-11-013C (meeting house) SIZE OF SUBJECT PARCELS : 359, 000 net sq. ft . (8 .24 net acres) for both parcels combined ZONING DISTRICT: CR-3 (Single-family Residence Zone) , Zoning Ordinance, Section 15 . 0400, for most of the park property; and CR-3/PD (Single- family Residence Zone by Planned Development) , pursuant to Ordinance No. 1156, for most of the meeting house property. REQUEST: The applicants are requesting a variance to be allowed to construct an 8-foot high fence on the western property line of their CR-3 and CR-3/PD zoned property pursuant to the Apache Junction City Code, Volume II, Land Development Code, Chapter 1, Zoning Ordinance, Section 11 . 0103 (1) , and Section 12 . 0102 of said Code . BOARD OF ADJUSTMENT ORDER - BA-4-06 PAGE 1 OF 4 BOARD AUTHORIZATION: Pursuant to the Apache Junction City Code, Volume II, Land Development Code, Chapter 1 , Zoning Ordinance, Article 11, Section 11 . 0103 Powers, Subsection (1) , which empowers the Board to: 1 : "Authorize variances from the strict application of the provisions of this Ordinance in cases in which strict application of such provisions would result in the serious impairment of substantial property right" ; and Section 12 . 0102 Evidence Required for Variance . Board of Adjustment Action: Motion and Second by Board Members Urich/Condon "I move that Case BA-4-06, a request by the Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, represented by Wayne Facer, for the Board of Adjustment and Appeals to grant a variance pursuant to the City of Apache Junction Zoning Ordinance, Section 11 . 0103 (1) and Section 12 . 0102, requesting to be allowed to construct an 8-foot fence on the west property boundary of the CR-3 and CR-3/PD-zoned LDS church and recreational property located at the southwest corner area of W. 16th Avenue and S . Ironwood Drive (parcel numbers 102- 11--013A & 013C) , be APPROVED. The Findings of Fact are as follows : 1 . There are special circumstances or conditions applicable to the property referred to in the application which do not prevail on other property in that zone . Those special circumstances or conditions include : a) Even though the church and private recreational facility is zoned single-family residential, it is not a residential use, nor a public property. BOARD OF ADJUSTMENT ORDER - BA-4-06 PAGE 2 OF 4 b) The present openness of the private recreation area attracts people and problems which are not typical to residential uses in that zone . c) Neighboring properties would benefit from a taller boundary fence given the recreational uses, such as softball, conducted on the property. 2 . The strict application of the regulations would work an unnecessary hardship and the granting of the application is necessary for the preservation and enjoyment of substantial existing property rights, because : a) Without an effective fence the recreational property will continue to suffer damage, vandalism and trespass. 3 . The granting of such application will not materially affect the health or 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, because : a) It may actually help to prevent accidental injury to persons on adjoining properties, or to persons who would otherwise try to access the property without authorization. Conditions of Approval : 1 . The property owners shall be allowed to construct an 8-foot-high fence in the locations shown on the drawing labeled "Exhibit E" , except that the fence on the west, north and east sides of the recreation property shall be a decorative wrought iron fence with intermittent masonry columns to match the colors and character of the meeting house building. 2 . The property owners shall submit the proper plans and make application to the city` s Development Services Department, who must review and approve said plans, prior to constructing the fence . " The above motion was amended, Motion and Second by Board Members Austin and Condon, to change Condition #1 to read BOARD OF ADJUSTMENT ORDER - BA-4-06 PAGE 3 OF 4 as follows : "The property owners shall be allowed to construct an 8-foot-high fence in the locations shown on the drawing labeled "Exhibit E" , except that the fence on the north only shall be a decorative wrought iron fence with intermittent masonry columns to match the colors and character of the meeting house building and that the west and east sides of the property be a chain link fence . " The amended motion was accepted as a friendly amendment . VOTE 4-0 : MOTION WAS APPROVED TO ALLOW A VARIANCE FOR AN 8-FOOT FENCE AROUND THE RECREATION PROPERTY, INCLUDING ON THE WEST PROPERTY LINE, WITH THE CONDITION THAT THE FENCE BE CONSTRUCTED OF WROUGHT IRON WITH MASONRY COLUMNS ON THE NORTH SIDE ONLY, AS STATED. SIGNED: MAR ARDNER, CHAIRWOMAN DATE ATTEST: t 1jj I-Z A'x 166 RUDY ES AS TIVE SECRETARY A BOARD JUST NT D APPEALS CC: - Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints c/o Wayne Facer, Authorized Agent 50 East North Temple Salt Lake City, Utah 84150 - Allen Woodruff 830 E. 2"d Avenue Mesa, AZ 85204 - Joel Stern, City Attorney - George Hoffman, City Manager - Kathy Connelly, City Clerk - Dennis Dixon, Interim Development Services Director - City Council Members - Planning and Zoning Commission Members - Case File BA-4-06 BOARD OF ADJUSTMENT ORDER - BA-4-06 PAGE 4 OF 4