The URL can be used to link to this page

Home My WebLink About2009-02-09 BOA MINUTES BOARD OF ADJUSTMENT AND APPEALS REGULAR MEETING 300 E. SUPERSTITION BOULEVARD MEETING OF FEBRUARY 9, 2009 A Regular Meeting of the Board of Adjustment and Appeals of the City of Apache Junction, Arizona, was held on February 9, 2009 , 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 Andrew Whiteneck Board Member Jason Russell Board Member Mike Weller Staff Present : City Attorney Joel Stern Planning Manager Fred Baker Planner Ian Crittenden Chairwoman Jones-Denney called for a motion on the Consent Agenda and the approval of minutes of the August 11, 2008 meeting. CONSENT AGENDA A MOTION WAS MADE TO ACCEPT THE AGENDA AND THE MINUTES OF AUGUST 11, 2008 . MOTION: Spelman SECONDED: Weller AYES : Jones Denney, Urich, Whiteneck, Weller, Spelman, Russell , Condon NOES: None ABSTAIN: None ABSENT: None BOARD OF ADJUSTMENT AND APPEALS FEBRUARY 9, 2009 PAGE 1 OF 9 PUBLIC HEARINGS Title: BA-4-08 Appeal of Zoning Administrator' s Decision Applicant: Wendell Pace, represented by Pew & Lake, P. L. C. Location: 831 S . Meridian Drive Request: This is an Appeal of the Zoning Administrator' s decision to deny the request for non-conforming status of a residentially zoned property for use as a vehicle and equipment repair and maintenance shop. Pinal County Assessor' s Parcel Number 102-33-010E. Staff: Ian Crittenden, Planner Planner Ian Crittenden presented the staff report dated February 9, 2009 to the Board members . Board Member Condon wanted to know if it is necessary to keep a business license on a property if they cease to do business, but still have their storage facility kept on the property. Planner Ian Crittenden said the storage of materials on a property is technically considered a business use . If staff reviewed a property that wanted to store commercial equipment staff would require them to be a business and meet commercial standards . Board Member Condon said what you are asking is for a person that went out of business because it slowed down and to update and keep his business active to be able to keep his equipment on the property. Is that what the City requires? Planner Ian Crittenden said you have to maintain a business license to maintain a storage yard. Planning Manager Fred Baker said the code says that the business activity cannot cease for 12 months . The only evidence that staff has to present to the Board is the fact of a business license or not having a business license . Any proof of operating a business, in order to maintain the non-conforming status, would have to come from the applicant . Board Member Condon asked in order to meet the nonconformity the applicant is applying for he has to have a business in order to maintain the status of nonconformity? Planning Manager Fred Baker said that is correct . BOARD OF ADJUSTMENT AND APPEALS FEBRUARY 9, 2009 PAGE 2 OF 9 Board Member Russell asked for the section that lists the code in dealing with nonconformity and 12 months . Planner Ian Crittenden answered it is in Section 3 . 0107B . it says it cannot cease for a period of 12 months . Board Member Condon asked if this applicant owned the property before March 7, 1985 . Planner Ian Crittenden said yes . The applicant did own the property. According to the Business License Office the applicant had established a business prior to 1985 . The issue in researching was that there was no proof given to City staff as to whether or not it was there . Our decision is based on the proof given to us by the applicant . Board Member Russell said if you had something grandfathered in prior to March 7 , 1985 and you didn' t keep up your business license you could lose that, or is it whatever happened prior to March 7, 1985, just happened. There is a missing link between the two. Planner Ian Crittenden said the way the city' s Zoning Ordinance addresses nonconformity issues is that essentially March 7, 1985 is the date in which the use or the building has to be present on the property. If that use at any time goes away for a year or more, it can' t come back. Vice Chair Spelman asked if it is grandfathered and they cease operating the business for 1 year, do they lose their grandfathered rights . Planner Ian Crittenden answered that is correct . Chair Jones-Denney noted in 1987 they had a license . There is no proof that they had a business after 1987 . Planner Ian Crittenden said after 1989, correct . 1989 was the last date we have for a business license or proof that staff does have that a business was happening. Chair Jones-Denney reiterated that from 1989 to the present there is no proof of a business license issued to this organization. Board Member Weller voiced a concern regarding a business license dated 4/30/84 for 3116 W. 9`" Place . This is not 831 South BOARD OF ADJUSTMENT AND APPEALS FEBRUARY 9, 2009 PAGE 3 OF 9 Meridian. How can it be grandfathered if it doesn' t have a business license for that property? Planner Ian Crittenden explained that research was completed and it was determined that the same parcel number occupied two addresses at different times. An address change was requested. Staff determined that both addresses had existed on the same parcel . Board Member Weller commented that the change of addresses went into effect in the 70 ' s, according to Kathleen Connelly. Is this the change of address you are talking about? Planner Ian Crittenden said no. There is an address change later than that and it changed the address for that property. Board Member Russell asked if a business license is the only way to establish in the City that you are using your property for a business . Planner Ian Crittenden said it isn ' t written in the code that a business license is a requirement for establishing a use on a property. In this circumstance it was the only evidence we were given that actually addressed the use being applied for. Planning Manager Fred Baker said the business license is required to conduct business in the City. The lack of proof of a business license for the continuous period through the grandfathering period and the late 90 ' s into 2000 , we have no record. The applicant ' s burden of proof is that he maintained a business . The show of proof would be to have obtained a business license from the City and that would give him proof that he maintained his business without a lapse of 12 months through the entire period. The code does not mention business license . It is just our obvious piece of evidence that the City has used to identify grandfathering of commercial businesses . Chair Jones-Denney asked if the applicant or representative would address the Board. Ralph Pew, 1744 S. Val Vista Drive, #217, Mesa, AZ, addressed the Board. He is here on behalf of Wendell Pace . We are here to appeal to the Board of Adjustment the denial by the Zoning Administrator of our request for legal nonconforming status . The business licenses and containers and what the property may look like or what may be on it are not the issues for consideration. Did Mr. Pace use his property for heavy equipment, maintenance, BOARD OF ADJUSTMENT AND APPEALS FEBRUARY 9, 2009 PAGE 4 OF 9 restoration, and repair prior to March 7, 1985? If the answer is yes, then he has what is known as a legal nonconforming use that existed on the day the City of Apache Junction adopted its Zoning Ordinance. The next question to ask yourself, and to deliberate is, did Mr . Pace do that by March 7, 1985, did he then continue to use his property for that purpose without a 12 month period of interruption until now? That is the issue . That is what we want to talk about tonight . when we filed the application for legal nonconforming status it was in May, 2003 . Mr. Pew presented the application packet to the Board. Mr. Crittenden is correct that a large majority of these exhibits have to do with property taxes, utility bills, etc . There are 4 critical items of evidence that the staff would have you ignore tonight as it relates to the use of the property. There are 3 affidavits in this packet from property owners in the area who testify to the fact that Mr. Pace has indeed used the property for these purposes and continued to do so. In addition, the application itself signed by Mr. Pace is very simple . It says, "I purchased this property and started this use in 1967 and I have continuously used it for those purposes since then without interruption. ' ' He then signs the application and in our minds that is evidence of his use of the property. Mr. Pew asked the Board members to take a minute to look at definitions in the code . Mr. Pew will summarize this and then turn it over to Mr. Pace and what he has done with the property. Mr. Pew responded to Board Member Russell ' s question on definitions . One of the definitions for non-conforming use is very simple it is any structure utilized or any use established prior to March 7, 1985 . That is a legal nonconforming use . Mr. Pace has indeed since 1987 maintained, repaired, collected, and restored equipment and apparatus on that site . Then there is the question of how do you determine use . The City staff relies significantly on business licenses being issued. From a property owners point of view that is not a very good way to determine use because you can ' t get a business license if you don' t have a legal nonconforming use, and this argument that you never can get out of . Let me take you to a definition in the Zoning Code of what use means . It does not mean a license . This comes from Section 5 . 0105 of your Zoning Code . Use shall mean the purpose for which land or building is arranged or designed or intended, or for which either land or building is or maybe occupied or maintained. A business license we ask you to consider is not the standard to determine if a property has been used for a particular purpose . The question is what has been going on, on that property. From 1967 to 1985 Mr . Pace operated various different types of business enterprises there . All of which involved maintenance, repair, and restoration of heavy equipment . He always did that sometimes for BOARD OF ADJUSTMENT AND APPEALS FEBRUARY 9, 2009 PAGE 5 OF 9 a fee and sometimes for himself . He consistently did that . Then in the late 80 ' s Mr. Pace took a job as a professor at Central Arizona Collect teaching heavy equipment repair and diesel work, etc . When that happened, the nature of the business on the property changed, but the use never did. He always consistently used the site . He is a fix it man. He can build and restore and fix anything and make it valuable . While he was teaching at the college he would also use this site continuously never ceasing for more than a year ever to have equipment and implements he repaired and restored . Then unfortunately, Mr . Pace ' s son had a concrete business and his son stored equipment and things used in the concrete business on this property. It was that act and storage of equipment that precipitated the notices from the City to Mr. Pace in 2002 to get rid of this storage and equipment on the property. It was not meant that he remove the entire use that he had since 1967 . It should have said remove the concrete business stuff that you now have there that shouldn ' t be there . Mr. Pew displayed a letter on the monitor . This letter dated Nov. 18, 2002 will clarify. The letter came to Mr. Pace at the time when his son has his business storage and equipment there and shouldn' t be . We know that and agree to that . The letter indicates on November 18 the property was inspected for compliance . The letter says the equipment related to your business had been removed however your commercial vehicles remain; meaning the trucks that his son had used in the concrete business . According to Steve Abraham, Assistant Planner, storage of commercial vehicles related to your business constitutes {now this is the important part} a violation of your legal nonconforming use . At the time, in this letter the City acknowledged to Mr. Pace that he had a legal nonconforming use and that this business equipment of his son' s needed to get out of there . In fairness to the City staff they didn' t know whose it was and what business it was it just shouldn' t have been there . A final inspection will be conducted etc . , etc . This is what caused all of the misunderstanding and confusion. At this time, I met Mr. Pace and we talked about this and in 2003 we thought it a good idea to file with the City a request to clarify that we really do have this legal nonconforming use . The letter clearly says we do. They are claiming we are violating it . In 2003 we filed this material and the material sets at the City for 4 years . We finally hear when Ian Crittenden takes a look at it based on the facts that he mentioned the container and other issues . We get a call asking if we have a copy of what was filed in 2003 and we sent it to the City. Then in November of 2008, we get a determination letter on Mr. Pace ' s behalf that the staff determined that our use was not a legal nonconforming use and BOARD OF ADJUSTMENT AND APPEALS FEBRUARY 9, 2009 PAGE 6 OF 9 that is really how all of this happened. Mr . Pace thought at the time we submitted this that since he had the legal nonconforming use indicated in this letter, we sent this in, he is assuming everyone is okay with it and he went about operating like he always had using the property for equipment, repair and restoration. We have 2 suggested stipulations to respectfully consider if you are inclined to approve our appeal; 1) No storage of equipment or material owned by Pace Concrete shall be permitted on the property. That is what caused the problem in the first place, and 2) The continued use of the property for vehicle and equipment restoration and repair shall be permitted for personal use only. This is not a business enterprise for Mr. Pace . He is retired from teaching. He is a fix it man. He buys equipment, fixes and sells it . He does it for himself . He can find a use for it . we would ask you to determine that the use has been consistent and has always been equipment repair on that site . The fact that business licenses were not issued or issued intermittingly is not the relevant determining factor. For what he does now he doesn' t need a license . We urge you to approve the appeal, approve Mr. Pace ' s nonconforming use that is consistent with the letter that you just saw from 2002 saying that it existed. Chair Jones-Denney said Section 5 . 0105 is a usage code . The property that he is on is a Trailer Homesite which would apply to Section 5 . 0501 . If that is property where he lives then I can ' t see a usage code for a business out of your home . Mr. Pew said we are not asking you to approve this as a home occupation. we do not qualify for that . This is a definition. Section 5 . 0105 is definitions for terms used in your Zoning Code . The question we had in helping Mr. Pace was what does the word use mean in this sentence that says that a legal nonconforming use is any structure utilized or any use established by March 7 , 1985? The question is what is the definition of "use I ? Then we go to the other one and it says the "use - for which land is occupied or maintained. It is very simple common day to day use of that language . Board Member Weller remarked you stated that Mr . Pace repaired equipment for friends and then in the written affidavit of 12-31- 08 it says Mr. Pace does not offer his service to the public . Earlier you said he did repairs for other people . It also says that he does not transact any business with third parties on this location. If there is an exchange of money there is a business license necessary. You stated it both ways, which way is it? BOARD OF ADJUSTMENT AND APPEALS FEBRUARY 9, 2009 PAGE 7 OF 9 Mr. Pew said prior to 1985, Mr . Pace was engaged in business on this site and did operate a business for compensation. After he began teaching the site transformed into more of a personal use for him. Historically, he had a business there, but he has always used it also for his own purposes . Board Member Weller said on your affidavits under Tab 8, permit expires 10-5-1984 , the description is Wendell Pace . It is not Pace Industry or Master Mechanics . This shoots a hole in your argument sir. Mr. Pew said that is not our intent . Yes, this business license did exist and Mr. Pace did conduct a business there at that time . He did it under different names . Board Member Weller said the utilities are tax deductible . In his name it is a piece of paper. In a business name it is a tax deduction. None of these receipts (and there are volumes) are in Pace Industry or Master Mechanics . They are all in the name of Pace . Mr. Pew said the application you are looking at in Tab 8 , that is why it expired. . . . TAPE SIDE B ENDS (MALFUNCTION) NOTHING ELSE IS RECORDED FROM THIS POINT ON. . . Motion on Case BA-4-08 MOVE THAT IN CASE BA-4-08, A REQUEST BY WENDELL PACE, REPRESENTED BY PEW & LAKE, PLC, AN APPEAL OF THE ZONING ADMINISTRATOR' S DECISION, PURSUANT TO THE APACHE JUNCTION ZONING ORDINANCE ARTICLE 3, BE DENIED, WITH THE FOLLOWING FINDINGS OF FACT: • THE BUSINESS HAS NOT CONTINUOUSLY MAINTAINED A CITY BUSINESS LICENSE WITHOUT A GAP OF 12 MONTHS. • THE EVIDENCE PRESENTED BY THE APPLICANT DOES NOT SUPPORT THE CLAIM THAT THE USE OF THE PROPERTY AS A VEHICLE AND EQUIPMENT REPAIR AND MAINTENANCE SHOP HAS EXISTED WITHOUT A PERIOD OF CESSATION OF TWELVE (12) MONTHS OR MORE SINCE MARCH 7, 1985 . • THIS BUSINESS USE IS NOT CONDUCIVE TO THE RESIDENTIAL AREA IN WHICH IT IS LOCATED. BOARD OF ADJUSTMENT AND APPEALS FEBRUARY 9, 2009 PAGE 8 OF 9 MOTION: Weller SECONDED: Urich AYES: Jones-Denney, Urich, Weller, Spelman NOES: Condon, Russell, Whiteneck ABSTAIN: None ABSENT: None OLD BUSINESS Nothing to report NEW BUSINESS Nothing to report REQUEST OF STAFF No requests INFORMATION AND REPORTS None 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 MARCH 9, 2009, IN THE CITY COUNCIL CHAMBERS LOCATED AT 300 E. SUPERSTITION BOULEVARD. MOTION: Urich SECONDED: Spelman AYES: Jones-Denney, Weller, Spelman, Urich, Russell, Whiteneck, Condon NOES: None ABSTAIN: None ABSENT: None Chairwoman Jones-Denney adjourned the meeting. JANE ES-DENNEY Chair man D BAKER, ZICP Executive Secretary/Planning Manager BOARD OF ADJUSTMENT AND APPEALS FEBRUARY 9, 2009 PAGE 9 OF 9 ORDER BOARD OF ADJUSTMENT AND APPEALS CITY OF APACHE JUNCTION, ARIZONA CASE NO. BA-4-08 DATE OF PUBLIC HEARING: February 9, 2009 APPLICANTS: Wendell Pace (property owner) , represented by Ralph Pew, Pew & Lake, PLC. PROPERT LOCATION: 831 S. Meridian Dr. , (APN : 102-33- 010E) LEGAL DESCRIPTION: A part of the Northwest corner of the Northwest corner (AKA Lot 1 ) of Section 30, Township 1 North, Range 8 East beginning at a point 2350 . 68' North and 50' East of the west quarter corner of said Section 30 thence east 277 . 52' , thence south 240 . 181 , thence west 277 . 56' , thence north 201 , thence east 185 . 06' , thence north 130' , thence west 185 . 04" , thence north 90. 17' to the point of beginning Section 30, Township 1 North, Range 8 East; . 96 acres plus or minus . SIZE OF SUBJECT PARCEL: 41, 817 square feet (±. 96 acres) ZONING DISTRICT: Trailer Home site (TH) REQUEST: Appeal of the Zoning Administrator' s denial of a letter of Lawful Non-conforming Use requesting approval of a nonconforming status of a commercial/industrial use, a vehicle and equipment repair and BOARD ORDER BA-4-08 Page 1 of 3 maintenance shop, on a residentially zoned property. 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 OF ADJUSTMENT ACTION: Motion and Second by Board Members Weller/Urich I move that in case BA-4-08, a request by Wendell Pace, represented by Pew & Lake, PLC, an appeal of the Zoning Administrator' s Decision, pursuant to the Apache Junction Zoning Ordinance Article 3, is denied. FINDINGS OF FACT: Findings of fact in this case are: • The business has not continuously maintained a City business license without a gap of 12 months . • The evidence presented by the applicant does not support the claim that the use of the property as a vehicle and equipment repair and maintenance shop has existed without a period of cessation of twelve (12) months or more since March 7, 1985. BOARD ORDER BA-4-08 Page 2 of 3 • Th-is business use is not conducive to the residential area in which it is located. MOTION PASSED, VOTE 4-3 (Board Member Condon, Board Member Russell and Board Member Whiteneck dissenting) SIGNED: - -49 o ff ANE ES-DENNEY, CH RWOMAN DATE BOARD OF ADJUSTMENT & APPEALS ATTEST: FRED BAKER, CP DATE BOARD CLERK APPROVED AS TO FORM: 495�— - — a- Ia -09 RICHARD JOEL STERN DATE CITY ATTORNEY cc: - Wendell Pace, 2273 Calle Maria Juana, Casa Grande, AZ, 85222 - Ralph Pew, Pew & Lake, PLC, - Permit $BLD2008-00101 - Case File BA-3-08 BOARD ORDER BA-4-08 Page 3 of 3