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HomeMy WebLinkAbout2008-08-11 BOA MINUTES BOARD OF ADJUSTMENT AND APPEALS REGULAR MEETING 300 E. SUPERSTITION BOULEVARD MEETING OF AUGUST 11 , 2008 A Regular Meeting of the Board of Adjustment and Appeals of the City of Apache Junction, Arizona, was held on August 11, 2008, in the City Council Chambers located at 300 E . Superstition Boulevard, pursuant to the notice required by law. CALL TO ORDER Chairwoman Jones-Denney called the meeting to order at 7 : 00 p.m. ROLL CALL Board Members Present : Chairwoman Jane Jones-Denney Vice Chairwoman Sandra Spelman Board Member Carol Urich Board Member Samuel Condon Board Member John Gordon Board Member Jason Russell Board Member Mike Weller Staff Present : City Attorney Joel Stern Planning Manager Fred Baker Senior Planner Rudy Esquivias Chairwoman Jones-Denney called for a motion on the Consent Agenda and the approval of minutes of May 12 , 2008 and June 9, 2008 meetings . CONSENT AGENDA A MOTION WAS MADE TO ACCEPT THE AGENDA AND THE MINUTES OF MAY 12, 2008 AND JUNE 9, 2008 . MOTION: Condon SECONDED: Weller AYES: Jones Denney, Weller, Spelman, Urich, Gordon, Condon, Russell NOES: None ABSTAIN: None ABSENT: None BOARD OF ADJUSTMENT AND APPEALS AUGUST 11, 2008 PAGE 1 OF 9 PUBLIC HEARINGS Title: BA-3-08 Appeal of Zoning Administrator' s Decision Applicant: Gregory & Connie Tarazon Location: 380 S . Ocotillo Drive Request: An appeal of denial of a request for a nonconforming status of a residential structure Staff : Ian Crittenden, Planner Planning Intern Ian Crittenden presented the staff report dated August 11 , 2008 to the Board members . Board Member Weller wanted clarification on a shaded area appearing on the aerial maps presented. The central west area shows a shadow and the southwestern portion shows a white area that could be a roof . what percentage of clarity do you use? Planning Manager Fred Baker said the older aerial map in dispute is the southwest corner. The trees have been removed on the newer aerial map. Board Member Weller asked the Planning Manager what was the determinant percentage of clarity. Was there a white spot underneath that tree in the 1985 picture? Could it have been a roof top? Planning Manager Fred Baker answered yes, it could have been. It is our best judgment . This is the information we have and this is why we are here to explore what we presented what we know as facts . Board Member Urich asked about #3 where they put the structure as existed since 1988 . What is that about? Chairwoman Jones-Denney said to have the applicant answer this inquiry. She asked the applicant to address the Board. Connie Tarazon addressed the Board. She and her husband Gregory purchased the house in February of 2008, site unseen. She doesn' t have a copy of what the Board is looking at . She can' t answer the question on the date of 1988 . She got the information verbally from Ian Crittenden and Fred Baker that the aerial shot was on the wall . When Mr. Tarazon tore down a storage room he discovered a stump on the southwest corner. That is the tree shadow that we are seeing at the end of the house . The previous owner (Francis L. Rogers) said he witnessed that the septic BOARD OF ADJUSTMENT AND APPEALS AUGUST 11, 2008 PAGE 2 OF 9 system was crushed and abandoned and provided a copy of a appraisal that was done in 2006 . The only thing the previous owner added on was a carport and put in a storage shed. Planning Manager Fred Baker distributed to the Board Members affidavits from neighbors of this property. He apologized for it not being in the packets prior to this meeting. It is information that you should consider when you make your decision . Board Member Urich asked the applicant why they put the year 1988 on #3 of the application. Connie Tarazon replied that the information was provided by Ian Crittenden. Mr. Crittenden had completed research and advised her that it was built about 1988 or 89 . Gregory Tarazon said the patio area was added on in 1991 . Board Member Condon asked Mr. Tarazon if the white parts of the house were there previous to maybe 1973 . Mr. Tarazon said yes . Vice Chairwoman Spelman feels that if there were no permits for the patio then it should come down. Board Member Weller said he also has a problem with the patio. Planning Manager Fred Baker said the unit was built prior to adopting the 1985 Zoning Code . Part of your determination tonight will be to grandfather in the setbacks . If you choose to grandfather in the other 2 roof structures then everything in white would be grandfathered in as of the determination of this Board. They would have a new setback on the southwest corner something less than 12 feet, but certainly the Zoning Ordinance from 1985 for a 20 foot setback does not apply. Board Member Russell asked if the legal way that we would expect it to be done is to obtain a building permit and go to the Planning Commission to get that approved . The Board wouldn ' t want to be used for someone that just built something without getting a permit first . City Attorney Joel Stern advised members that your role for tonight is to decide if the setback should be waived and you will have to have findings as to why they should be waived based on what you have found. There are suggested facts and findings, but BOARD OF ADJUSTMENT AND APPEALS AUGUST 11, 2008 PAGE 3 OF 9 if you have other facts and findings you can list those . If someone would build something and they know that it is in violation they would get a letter from the building department and would be told they couldn ' t build without a variance . If it is a setback zoning issue, that is what you are deciding tonight . Appeals of building code issues go to the Board of Construction and Appeals . That is a different issue than what is before you tonight . A setback is part of zoning. Building code is not part of zoning. The Board of Adjustment handles variance issues . Board Member Spelman wanted to know if this issue went through does it set a precedent . City Attorney Joel Stern advised that it would be case by case . This doesn' t set a precedent because it does not change a general rule . It would be case specific to only this property. Chairwoman Jones-Denney asked if there was anyone wishing to address the Board. John Mahoney, 455 S . Delaware Drive, AJ, AZ, addressed the Board. Maybe you could tell how tall the tree was by how large the stump is . Chairwoman Jones-Denney having heard no further comments from the public, she closed the public hearing and opened it for discussion among Board members . Board Member Weller disagrees about the patio and thinks the other 2 structures were in existence prior to 1985 . Board Member Russell said from the best that we can tell the white portions of the buildings were there previous to 1985 and the portion of the carport was not . A remedy here would be to grandfather the white portions and ask that the remainder of the patio area be removed. Chairwoman Jones-Denney called for a motion. Board Member Condon made a motion on Case BA-3-08 that a request by Gregory and Connie Tarazon for an appeal of the Zoning Administrator's Decision, pursuant to the Apache Junction Zoning Ordinance, Article 3, be modified to approve the additions to the rear of the residence with the Findings of Fact as follows : BOARD OF ADJUSTMENT AND APPEALS AUGUST 11, 2008 PAGE 4 OF 9 • There is no evidence that the additions to the west portion of the house (laundry room and storage) existed in their current configuration in March 1985, which is in conflict as of right now, when the City of Apache Junction Zoning Ordinance was adopted. ■ The home is located in the CR-3 Zone (Section 15 . 0400, Single Family Residence Zone) . The typical rear setback for a home in this zoning district is twenty feet (201 ) per Section 15 . 0407 . Because the home predates the adoption of the Zoning Ordinance a legal nonconforming setback can be established for this property. The majority of the home has a setback of eighteen feet eight inches (18, 811 ) while the north eleven feet five inches (11' 511 ) has a setback of twelve feet (12' ) , which has an attachment of 14 . ■ From the 1985 aerial photo it has been determined that the additions (bedroom and carport) to the north of the home have existed prior to the adoption of the Zoning Ordinance. These additions to the west side of the home were present in March, 1985 and do not violate the Zoning Ordinance Section 15. 0407, CR-3 setback requirements in Section 3. 0104 prohibition on change in nonconforming use. These additions are conforming to the City Code. Planning Manager Fred Baker said on the first finding you stated that there is no evidence, I believe that you wanted to say that there is evidence of the additions to the west of the house . Board Member Condon replied that is correct . Please make the correction. Board Member Weller said you also mentioned a carport as a patio and that is not included. Planning Intern Ian Crittenden replied that the carport mentioned in the staff findings is referring to the carport on the north side of the property. Board Member Weller asked if the northeast side of the property was correct . BOARD OF ADJUSTMENT AND APPEALS AUGUST 11 , 2008 PAGE 5 OF 9 Planning Intern Ian Crittenden answered that is correct . Planning Manager Fred Baker said it has a gray tone on the aerial . The members are suggesting that it not be included in the grandfathering finding. Board Member Condon asked if there was a way he could make a setback recommendation in the motion or is that something that has to be looked at later. Planning Manager Fred Baker asked for clarification on the question. Board Member Condon thinks that a 10 foot setback is sufficient in this situation in the rear yard. Is that something he could put in the motion? City Attorney Joel Stern advised the Board that we are out of order. He is confused on the motion. He is not sure everyone knows what is about to be voted on . Repeat just the motion itself . Planning Manager Fred Baker repeated the motion. Move that Case BA-3-08, a request by Gregory and Connie Tarazon for an appeal of the Zoning Administrator' s Decision, pursuant to the Apache Junction Zoning Ordinance, Article 3, be modified to approve/deny the additions to the rear of the residence. Those additions you can approve or not approve (the two white areas outlined within the red in the aerial) . If you want to overrule the Zoning Administrator' s decision then you would deny the recommendation to not allow the additions to the rear of the building. You have to deny the staff recommendation or the Zoning Administrator' s recommendation because we are saying in this motion that the additions should be upheld in terms of that they do not meet a grandfathering notion based on the evidence . A couple Board members are saying that the area in white, in what we are referring to as the laundry room and storage area did exist prior to the 1985 Zoning Ordinance . That is the motion on the floor. You would be overruling or denying the Zoning Administrator' s decision. Therefore, the applicant position is upheld. Board Member Condon said what he intended was to draw a straight line off of the addition. It is an 8 foot 7 inch setback. Carry that across from the property line so he would not have to remove BOARD OF ADJUSTMENT AND APPEALS AUGUST 11, 2008 PAGE 6 OF 9 that whole portion, or he could keep it to the extent of the portion that is the furthest west . Planning Manager Fred Baker said staff would take the position that you can' t increase a non-conformity by grandfathering the entire building area. If you would take the 8 foot setback on the southwest corner area and draw a straight line you would allow additional building area where there is none, just the existing portions of the building with the exception of the patio that was built in the 90 ' s and never permitted. Board Member Russell said when we read this motion we are saying we would approve the addition to the rear of the residence . Planning Manager Fred Baker said they are appealing our letter that said that these are illegal structures . You have to deny our position. City Attorney Joel Stern advised your term should be overruling the Zoning Administrator' s decision and modifying it and state whatever you believe are the Finding of Facts . Chairwoman Jones-Denney said the outline in red has no permits . Planning Manager Fred Baker commented there were no permits . We believe that the two white areas outlined in red, excluding the patio, were added on after 1985 . The Board seems to be coming to the conclusion that they did exist prior to 1985 . In that case, the whole structure was built prior to the City' s incorporation, therefore, any building permits issued were not issued by the City. City Attorney Joel Stern said it sounds like you want everything in green. You want only the area outlined in red (the white area roofs) , but you don' t want the gray area. Board Member Condon said that is correct . That is what he would like to include in the motion. City Attorney Joel Stern suggested that Board Member Condon withdraw the motion and start clean with a new motion. Board Member Condon withdrew the first motion and presented a new motion. Motion on Case BA-3-08 A motion was made that a request by Gregory and Connie Tarazon for an appeal of the Zoning Administrator' s Decision, pursuant to BOARD OF ADJUSTMENT AND APPEALS AUGUST 11, 2008 PAGE 7 OF 9 the Apache Junction Zoning Ordinance, Article 3 , be modified to approve the additions to the rear of the residence with the Findings of Fact as follows : ■ There is evidence that the additions to the west portion of the house existed in their current configuration in March 1985, when the City of Apache Junction Zoning Ordinance was adopted. ■ The home is located in the CR-3 Zone (Section 15 . 0400 , Single Family Residence Zone) . The typical rear setback for a home in this zoning district is twenty feet (20' ) per Section 15 . 0407 . Because the home predates the adoption of the Zoning Ordinance a legal nonconforming setback can be established for this property. The majority of the home has a setback of eighteen feet-eight inches (18 , 811 ) while the north eleven feet-five inches (11, 511 ) has a setback of twelve feet (121 ) . ■ From the 1985 aerial photo it has been determined that the additions (bedroom and carport) to the north of the home have existed prior to the adoption of the Zoning Ordinance . • The patio area that was constructed in the 91 era, with no permits, be removed. MOTION: Condon SECONDED : Weller AYES : Weller, Russell , Gordon, Condon NOES : Jones--Denney, Urich, Spelman ABSTAIN: None ABSENT: None Motion is approved by a vote of 4 to 3 . City Attorney Joel Stern advised the Board and the public that if any aggrieved party feels that they do not like this decision they may appeal to Superior Court within 30 days from the date the decision is signed. BOARD OF ADJUSTMENT AND APPEALS AUGUST 11, 2008 PAGE 8 OF 9 OLD BUSINESS Nothing to report NEW BUSINESS Nothing to report REQUEST OF STAFF No requests INFORMATION AND REPORTS Planning Manager Fred Baker presented information on the annual Boards and Commissions Conference that will be held on December 5, 2008 . SELECTION OF MEETING DATE, TIMES, LOCATIONS, AND PURPOSES A MOTION WAS MADE THAT THE REGULAR MEETING OF THE BOARD OF ADJUSTMENT AND APPEALS BE HELD AT 7 : 00 P.M. ON SEPTEMBER 8, 2008 , IN THE CITY COUNCIL CHAMBERS LOCATED AT 300 E . SUPERSTITION BOULEVARD. MOTION: Spelman SECONDED: Russell AYES : Jones•-Denney, Spelman, Urich, Gordon, Weller, Russell, Condon NOES: None ABSTAIN: None ABSENT: None Chairwoman Jones-Denney adjourned the meeting at 8 : 22 p.m. E S-DENNEY hair man - -3�A&o rRM AKER, A_CP Executive Secretary/Planning Manager BOARD OF ADJUSTMENT AND APPEALS AUGUST 11, 2008 PAGE 9 OF 9 ORDER BOARD OF ADJUSTMENT AND APPEALS CITY OF APACHE JUNCTION, ARIZONA CASE NO. BA-3-08 DATE OF PUBLIC HEARING: August 11, 2008 APPLICANTS : Gregory and Connie Tarazon, Property Owners PROPERT LOCATION: 380 S. Ocotillo LEGAL DESCRIPTION: APN: 101-10-097 SIZE OF SUBJECT PARCEL: 6, 000 square feet (±. 14 acres) ZONING DISTRICT : CR-3 Single Family Residence Zone REQUEST : This is an appeal of the Zoning Administrator' s decision to deny a request for a Letter of Lawful Non-Conformity for the rear room additions to the home located at 380 S . Ocotillo Drive in Apache Junction, by Gregory and Connie Tarazon, the property owners. BOARD AUTHORIZATION: Pursuant to the Apache Junction City Code, Volume II, Land Development Code, Ch. 1, Zoning Ordinance, Article 11, Board of Adjustment and Appeals Section 11 .0103 Powers, Subsection (c) , this empowers the Board to: "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 ORDER BA-3-08 Page 1 of 3 BOARD OF ADJUSTMENT ACTION: Motion and Second by Board Members Condon/Weller I move that in case BA-3-08, a request by Gregory and Connie Tarazon for an appeal of the Zoning Administrator' s Decision, pursuant to the Apache Junction Zoning Ordinance Article 3, be modified to approve the additions to the rear of the residence. FINDINGS OF FACT: Findings of fact in this case are: • There is evidence that the additions to the west portion of the house existed in their current configuration in March 1985 when the City of Apache Junction Zoning Ordinance was adopted. • The home is located in CR-3 zone (Section 15 . 040C, Single Family Residence Zone) . The typical rear setback for a home in this zoning district is twenty feet (20' ) per Section 15 . 0407 . Because the home predates the adoption of the Zoning Ordinance a legal nonconforming setback can be established for this property. The majority of the home has a setback of eighteen feet eight inches (18' 8") while the north eleven feet five inches (11' 5") has a setback of twelve feet (12' ) . • From the 1985 aerial photo it has been determined that these additions (bedroom and carport) to the north of the home have existed prior to the adoption of the Zoning Ordinance. • We also find that the patio area that was constructed in the `91 era, with no permits, we would like to have removed. BOARD ORDER BA-3-08 Page 2 of 3 MOTION PASSED, VOTE 4-3 (Chairwoman Jones-Denney, Vice Chairwoman Spellman and Board Member Urich dissenting) SIGNED: ?OAR NES-DENNEY, AIRWOMAN DATE OF ADJUSTMEN & APPEALS ATTEST: FRED BAKER, AICP DATE BOARD CLERK APPROVED AS TO FORM: _ 9.5 .0B RICHARD JOEL STERN DATE CITY ATTORNEY cc: - Gregory and Connie Tarazon, 2019 W. Vineyard Plains Dr, Queen Creek Arizona 85242 Permit #BLD2008-00101 - Case File BA-3-08 BOARD ORDER BA-3--08 Page 3 of 3