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HomeMy WebLinkAbout2009-04-13 BOA MINUTES BOARD OF ADJUSTMENT AND APPEALS REGULAR MEETING AND EXECUTIVE SESSION 300 E. SUPERSTITION BOULEVARD MEETING OF APRIL 13 , 2009 A Regular Meeting of the Board of Adjustment and Appeals of the City of Apache Junction, Arizona, was held on April 13 , 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 Samuel Condon Board Member Jason Russell Board Member Mike Weller Board Members Absent : Carol Urich Andrew Whiteneck Staff Present: City Attorney Joel Stern Planning Manager Fred Baker Senior Planner Rudy Esquivias Assistant Planner Yanet Ochoa MOTION WAS MADE TO HOLD AN EXECUTIVE SESSION AT THIS TIME TO DISCUSS LEGAL MATTERS WITH THE CITY ATTORNEY. MOTION: Spelman SECONDED: Weller AYES: Jones-Denney, Weller, Spelman, Russell, Condon NOES: None ABSTAIN: None ABSENT: Urich, Whiteneck City Attorney Joel Stern explained to the public that the Executive Session meeting will essentially be a closed session to the public . This will be a discussion to discuss legal matters and the Board will return in 15 minutes maximum. BOARD OF ADJUSTMENT AND APPEALS APRIL 13 , 2009 PAGE 1 OF 21 Chair Jones--Denney adjourned to Executive Session at 7 : 03 p.m. Chair Jones-Denney reconvened the meeting at 7 : 24 p.m. Chairwoman Jones-Denney called for a motion on the Consent Agenda and the approval of the February 9, 2009 meeting minutes . CONSENT AGENDA A MOTION WAS MADE TO ACCEPT THE AGENDA AND THE MINUTES OF FEBRUARY 9, 2009 . MOTION: Weller SECONDED: Russell AYES: Jones-Denney, Weller, Spelman, Russell, Condon NOES: None ABSTAIN: None ABSENT: Urich, Whiteneck CALL TO THE PUBLIC None DIRECTOR' S REPORT None PUBLIC HEARINGS Title: Request for a variance of Zoning Code Section 6 . 0108 . 3 (1) (C) Exceptions for Guest Houses to allow a 1, 478 square foot guest house - Case BA-1-09 Applicant: Dana Ketterling Location: 2086 S. Raindance Road Request: This is a request for a variance of Ordinance No. 1300, Exceptions for Guest Houses. The applicant is requesting that the 1, 478 square foot single- family home be allowed as a Guest House, even though it exceeds the square footage and percentage required for a Guest House under Ordinance No. 1300 . Staff: Yanet Ochoa, Assistant Planner Assistant Planner Yanet Ochoa presented the staff report dated April 13 , 2009 to the Board members. BOARD OF ADJUSTMENT AND APPEALS APRIL 13 , 2009 PAGE 2 OF 21 Board Member Condon asked if this lot could be split into two separate lots . Assistant Planner Yanet Ochoa said yes, it is a possibility, but the applicant would have to rezone first and then split. In the General Rural (GR) zone the minimum size lot requirement is 1 '/4 acre. Board Member Weller said you indicate that on August 26, 2006 a building permit was requested and the building permit was not approved until July 18 , 2007 . Why an 11 month span of time before the building permit was authorized. Planning Manager Fred Baker said through the plan check process corrections are needed on the construction documents . The City attempts to turn comments back in 10 days, but there is no guarantee that the applicant will come back with corrections in a timely manner. Assistant Planner Yanet Ochoa said they also give a certain amount of time to build the house. Planning Manager Fred Baker said the permit needs to be issued first . Board Member Weller wanted to know what the laws were as of July 18, 2007, when they drove the first nail . Assistant Planner Yanet Ochoa said the guest house ordinance was not passed. Board Member Weller said there was no law. Assistant Planner Yanet Ochoa said no, there was no guest house at all . Board Member Weller said therefore in 2007, when they passed the guest house law you are telling me that this is an ex post facto law that in fact you are making the law retroactive . City Attorney Joel Stern noted that your question is getting to, what was the law on that date . Were guest houses permitted? Board Member Weller said yes, sir. City Attorney Joel Stern said the answer is no, they were not. The ordinance had yet to be passed. BOARD OF ADJUSTMENT AND APPEALS APRIL 13 , 2009 PAGE 3 OF 21 Board Member Weller asked were they specifically denied. City Attorney Joel Stern advised he didn' t know if they asked at that time. Planning Manager Fred Baker said the application that came in for the unit that is currently built was for a single family dwelling. Senior Planner Rudy Esquivias said on the time frame question, once a plan submittal has gone through the process and the plans have been stamped approved and given back to the applicant, the applicant then has 6 months to call for the first building inspection. Every time there is an inspection you are automatically renewed for another 6 months . The applicant is allowed to work at his own pace. Board Member Weller asked why was there a time lag between requesting a building permit and being able to build by being given a building permit . It can' t be done without a building permit can it? Chair Jones-Denney commented on the sheet that they gave us . It is a building permit form that they gave as an extra paper laying to the side . It states that they applied for it on 8-25-2006 and the building permit was issued on 9-7-2006 . She is talking about the building permit that she has in her hand. City Attorney Joel Stern said that is Building Permit 2006-00973 . Is that correct? Chair Jones-Denney said right. City Attorney Joel Stern asked does it also say under #10 List the proposed structure/work: new house replacing M. H. , is that correct? Chair Jones-Denney said yes . Board Member Spelman wants to get this straight . This was issued as a single family dwelling and now they are trying to turn it into a guest house . Assistant Planner Yanet Ochoa said correct . That is what it was issued. BOARD OF ADJUSTMENT AND APPEALS APRIL 13 , 2009 PAGE 4 OF 21 Board Member Condon said since the guest house ordinance describes new construction, this isn' t actually a new construction of a guest house . Is there a code preventing someone from putting 2 structures on a property? Is the guest house ordinance for sure written for this situation when it is already an existing structure? Now they are asking to build an additional structure and rename this other structure a guest house . Planning Manager Fred Baker said in this zone and every residential zone only 1 single family dwelling unit is allowed. The Commission saw fit to pass the guest house ordinance to allow a second unit as defined by our guest house ordinance with perhaps 12 or 13 exceptions that identify what defines a guest house . As part of that, it does say new construction, so that could weigh into your decision. Board Member Condon asked if there is an ordinance or code about just naming a dwelling a guest house. The current dwelling that is now there on the property, is there a code that says you can come to Planning and zoning and rename that a guest house. Do we have an ordinance specifically for existing structures? Planning Manager Fred Baker said no. Assistant Planner Yanet Ochoa said no. As of now you can actually build a guest house . She doesn' t think that you can have any house just be a guest house. It would have to meet the 1, 000 square foot maximum size. Planning Manager Fred Baker said the question Board Member Condon is asking is that the ordinance doesn' t speak to the order in which the units are built . An individual could build a guest house first, comply with all of the guest house requirements, and then build the main unit . Whether you would consider that new or not, it is really the order. The ordinance doesn' t speak directly. I believe that could occur in the future . Chair Jones-Denney asked the applicant to address the Board. Dana Ketterling, 2086 S . Raindance Road, A.J. , AZ, addressed the Board. What you have talked about is pretty much true . At the time we applied we didn' t get anything documented. We told them that we were building this house as a guest house and in the future would be building a second house . It was understood right BOARD OF ADJUSTMENT AND APPEALS APRIL 13 , 2009 PAGE 5 OF 21 from the beginning. I have had meetings with him and Ian Crittenden and they both knew from the whole time . Everyone has known. There was never anything stated to us about the size . we would have built it 1, 000 square feet, but we didn' t know. Chair Jones-Denney said on this building permit that was discussed earlier it states that you wanted to build a new 1, 468 square foot single family dwelling within the existing 12 x 34 storage shed, replacing a mobile home. When you got the building permit and built this, you built it as a single family dwelling, according to this . Mr. Ketterling said yes. we built it as a single family dwelling with the intent of building the second house which we brought to their attention at that time. There was never a motor home or anything on the lot when we bought it . Chair Jones-Denney said it says already removed, replacing. There was a shed there . Mr. Ketterling said that is when we built it . Had we known, we would have built it at 1, 000 square feet . We brought our mother and father-in-law out from Ohio to stay in this and we didn' t do them at the same time because we were selling a house in Mesa. when that house sold we moved in with them in the guest house, into what is the single family dwelling now and will live with them until we build the other house. When we came to build the other house we were told that the first house was too big. It was 468 square feet too big. The main house had to be twice the size of the guest house . we even had blue prints made up where the main house will be twice as big as that house . That was our intention from day one. Whether it was called a guest house or single family dwelling, we were just building it as a guest house . Chair Jones-Denney asked when you were building this house were you aware that they were going to pass an ordinance for a guest house in the City of Apache Junction. At the time this house was built there was none . Mr. Ketterling said we weren' t aware of it . At the time we did it they told us all along that they didn' t think there would ever be a problem. This man here even didn' t think there would be a problem. Chair Jones-Denney said back to her original question. At the BOARD OF ADJUSTMENT AND APPEALS APRIL 13 , 2009 PAGE 6 OF 21 time you built the house you built it was a single family dwelling, not as a guest house . You did not know about the ordinance that was going to be passed? Mr. Ketterling said we didn' t know we couldn' t have 2 houses there either. When we built it, it was a single family dwelling, but we built it knowing it was going to be a guest house. Chair Jones-Denney said she wanted to clarify herself . When you made the application to build a house back in 2006, there was nothing on record in the City of Apache Junction for a guest house. There was no provision for one whatsoever. So you made a permit for a single family dwelling to be put on the property located on Raindance Road. A year or so later the City of Apache Junction passed this ordinance that you could have a guest house . It was specific to square footage and everything. It also states that a guest house is to be constructed on the property, not already constructed. So from what she understands from the ordinance it states that you have a house on a property and you want to build a guest house on it. You have to build it on the property, not build the main house and take the place that is there as a guest house. That is not the way the ordinance reads or that she understands it. City Attorney Joel Stern advised that in Section 6 . 0108 . 03 there is a definition and then after that it does say, in order to allow these uses, while still preserving the basic character, tranquility and livability of single-family neighborhoods, the following provisions and regulations are created in regard to guest houses: 1) on any single-family residence zoned property, one (1) guest house is permitted to be constructed, subject to the following criteria : then it goes a through n. So it does say it is permitted to be constructed. Chair Jones-Denney said constructed? City Attorney Joel Stern said yes . Chair Jones-Denney said, but it has to follow these criteria. City Attorney Joel Stern said that is correct . Chair Jones-Denney said my understanding of this was that it was to be constructed after the original dwelling that they were going to be living in was there, not before. This is my question. BOARD OF ADJUSTMENT AND APPEALS APRIL 13 , 2009 PAGE 7 OF 21 City Attorney Joel Stern advised he believes that is probably the intent of the City Council . If you read the definition "Guest House" : An accessory dwelling unit, attached or detached from a main dwelling unit on the same lot, and customarily incidental and subordinate to the main dwelling unit. The Planning and Zoning Commission and the City Council expressly find that there is a desire for Guest Houses on single-family residence-zoned properties in the community, which can be used to accommodate visiting family, friends, personal or property caretakers. In order to allow these uses, while still preserving. . . The intent is to allow family, friends, personal or property caretakers to come and live in a guest house and then the guest house can be built . If you look under Ordinance #1300, page 3 of 5, top of page, a guest house can be conventionally constructed or stick-built. Chair Jones-Denney said on page 4 of 5 "n" it says, any person or ownership entity who builds a Guest House pursuant to Section 6. 0108. 3 of this code shall have recorded on said property a Deed Restriction for the Use of the Residence, for the purpose of further restricting Guest Houses. She takes that to mean they have to have a house before they build a guest house. The main house has to come first . Planning Manager Fred Baker wanted to speak a little on the timing. Things from my memory are quite different . We met and we told them that there was a draft ordinance of the guest house and the guest house limitation is 50% of the main dwelling. We knew that there would be a total amount of square footage, we didn' t know exactly the size. We hadn' t at staff level recommended the maximum size at that point . The applicant was aware that we had a guest ordinance drafted and ready to be presented to the Planning Commission. The applicant asked, what were his options? Ian Crittenden and myself gave him 3 options . 1) Rezone the property to have 2 units built 2) Pursue a variance 3) Ask for a letter that says you are not complying with the guest house unit once it was built and we would say it is not, and then the applicant would appeal that decision. We then met with the applicant a second time and reviewed the criteria for allowing a variance for this project . We told them directly that they do not meet all of the criteria. He meets one BOARD OF ADJUSTMENT AND APPEALS APRIL 13 , 2009 PAGE 8 OF 21 (1) criteria. Board Member Weller commented to Mr. Baker that on February 5, 2007, City Council directed staff to create a separate text amendment for guest houses in this City. Was this gentlemen building a home on Raindance a causable factor that we needed a separate amendment . Planning Manager Fred Baker said his request for a building permit and guest house unit are unrelated completely in terms of Commission discussion, direction, and recommendation and Council direction to staff . Board Member Weller said he remembered a former Council member that brought this issue up. Planning Manager Fred Baker said that is correct. City Attorney Joel Stern asked if he may be heard on the intent . If you look at the "Whereas" clauses on Ordinance No. 1300 starting on page 1, it gets into how the guest house ordinance was formed. There was some citizen involvement. He believes Mr. Weller was correct . It was because of a former Council member that brought it to the Council' s attention. There was a husband and wife, elderly and in poor condition. They needed to put the caretaker on the property. Not in their own home, but somewhere on the property. He thinks that is what started it. To answer the question if you have to have a house first, he doesn' t think that is the case . If someone came to the Planning and Zoning Division and they wanted to have a residential house and guest house and here are their plans, if they met every condition here, they could probably do that. They would have to have the residential piece and the guest house on the plans to meet these provisions . Planning Manager Fred Baker said that is correct. The guest house is viewed as an accessory or subordinate structure to the main unit. We would want to see a site plan and plans to construct the main unit . A guest house can be built first. Board Member Spelman asked if they are going to be under the same sewer system and same meters, one, and not separate for each unit . Mr. Ketterling said yes, that is what we were told that we had to use the same. BOARD OF ADJUSTMENT AND APPEALS APRIL 13 , 2009 PAGE 9 OF 21 Board Member Weller asked Mr. Baker under General Rural what is the lot coverage that is permitted? Is it 300? Planning Manager Fred Baker responded that he thinks it is more than that . Senior Planner Rudy Esquivias said in the GR zone what it says is, accessory buildings may cover up to 1/3 of the side and rear yards . Guest houses are a little different . Accessory buildings have different setbacks than the main unit . A guest house would have to meet the setbacks for the main unit . It is treated like a main unit for setbacks, but it would be calculated into the lot coverage . When you have a 54, 000 square foot lot, that coverage is pretty generous . Board Member Weller said the 1, 478 square foot home that is there presently, and are requesting to build a 2900 square foot home, that leaves 4, 378 square feet under roof and an acre is 43, 500 + square feet so he is using land coverage of less than 11%. Senior Planner Rudy Esquivias said correct. Board Member Weller asked the applicant if 1, 478 square feet includes the garage. Mr. Ketterling said no sir, that is just the livable . Chair Jones-Denney said in the provisions it states in item E no more than 1 guest house to be located behind or to the rear of the main house is permitted. She went by and looked at the property and the house is facing Raindance and where you are going to be building is to the side of it . There is no way you can build a home in front of it . Mr. Ketterling said the blueprints have been turned in. The main structure will face 20th Avenue so the guest house would be behind the main structure . Chair Jones-Denney said the address is on Raindance . You have to have the same address. Mr. Ketterling said he could get the address changed to 20th Avenue. City Attorney Joel Stern wanted to ask the applicant to show the BOARD OF ADJUSTMENT AND APPEALS APRIL 13 , 2009 PAGE 10 OF 21 Board the site on a plat map. Chair Jones-Denney asked if we would completely disallow the entrance on Raindance to the home. You have an address on Raindance plus an address on 20tn Mr. Ketterling said he would change the address to 20th Avenue for both. Chair Jones-Denney said Item L says only 1 driveway. The main dwelling unit and guest house shall both use the same driveway for access . Mr. Ketterling said the driveway going into the house that is there now, and indicated on the map the driveway to the garage to the new house that they want to build, is still the same driveway but just goes into the garage this way. Chair Jones-Denney said it also says a guest house may be attached to the main house by a breezeway or similar device. You have nothing attaching the main house to the guest house. City Attorney Joel Stern said, it says "may" . Planning Manager Fred Baker said the staff does the addressing for properties . We would put the address on 20th Avenue and there is, in our opinion, one driveway that accesses both. Board Member Weller asked Mr. Baker if you can look at the plot plat number and not necessarily the street address . Planning Manager Fred Baker said we have inherited addresses from the County and have made recommendations to change them on a case by case basis, but we don' t catch them all . Board Member Weller asked if the applicant changes the address to 20th Avenue will it be a detriment to the City in collecting taxes . Planning Manager Fred Baker said in a discussion with the Senior Planner, we see no issue . Board Member Russell said it is up to us to grant variances. There are 3 criteria we need to look at to grant them. Does the applicant meet the 2nd criteria where they meet a hardship and granting of the application is necessary for the preservation and BOARD OF ADJUSTMENT AND APPEALS APRIL 13 , 2009 PAGE 11 OF 21 enjoyment of substantial existing property rights? Could the applicant clarify that it is true in this case. Mr. Ketterling answered they are building it so they can live in the main house and take care of their parents in the old house without being miles away and give them care and take them to the doctor. Board Member Condon asked the applicant if he would have known this ordinance existed would he have purchased this property and moved to Apache Junction knowing the situation he faces today. Mr. Ketterling answered he would have still bought the property but built the house smaller. Board Member Condon asked staff if there is a grandfather clause that would allow such a structure . Planning Manager Fred Baker said are you asking to grandfather this in as it exists? Board Member Condon said it is an existing guest house . He came to you and at the time of the construction of the 1, 478 square foot single dwelling the applicant was proposing to build what he considered to be an accessory structure to reside in while the main dwelling unit is under construction. Knowing that this was going to happen can this unit be grandfathered in to fit in order for him to have the main dwelling? Planning Manager Fred Baker said the guest house ordinance didn' t exist . I am not sure what to grandfather. Board Member Condon said so you are grandfathering the guest house . It didn' t exist at the time he built this house as a guest house . City Attorney Joel Stern said he doesn' t think what you are calling grandfather rights would be non-conforming uses and that would not be a non-conforming use at the time. The answer is no. Board Member Weller said was the guest house under the original laws when he started to build. Was a guest house specifically exempted, restricted, not allowed. City Attorney Joel Stern said under the zoning there was no provision for a guest house . BOARD OF ADJUSTMENT AND APPEALS APRIL 13 , 2009 PAGE 12 OF 21 Board Member Weller asked if there was a restriction that it could not be built . City Attorney Joel Stern said the way the zoning ordinance works is, if it is not listed as an allowable use or accessory use, you can' t do it. Planning Manager Fred Baker said in all single family residential districts it only allows 1 dwelling unit per lot. Board Member Weller asked Mr. Ketterling the age of his parents . Mr. Ketterling answered his father-in-law is 81 and mother-in-law is 76 . Board Member Weller quoted an article from the Tucson paper, "AARP estimates that home care systems that serve nearly 8, 000 people statewide cost Arizona $2, 200 . 00 per person compared to upwards of $24 , 000 . 00 annually per person to house a senior in a public long term care facility. " This man is requesting to take care of elderly parents and in-laws and thinks they need some help. Chair Jones-Denney opened the public hearing portion for public input. She asked Mr. Standage to address the Board. Wayne Standage, 1920 E. 20th Avenue, addressed the Board. He lives across the street from Mr. Ketterling. There are 2 issues here, the letter of the law and the spirit of the law. He has watched Mr. Ketterling struggle through the years to work to meet requirements of his property and strive to do what is right. He is going to have a hardship if he has to put his parents elsewhere. What he is doing is to help save money. There was no ordinance at the time. Basically, it was prohibited. Why would someone build a guest house and then want to do a main house if he wasn' t led to believe that it would be allowed. He got caught in the square footage. This is an issue that can be dealt with. He is following procedures to come before you. From what he has gathered in listening tonight there is really nothing that says the guest house can' t be built before the main house . He believes Mr. Ketterling has been straight forward. That area is zoned GR, but by the Master Plan Map it is zoned residential . He has no problem with what Mr. Ketterling is doing. He hopes you listen to what he says . He is someone who got caught in a situation brought up by a particular former Council member. He BOARD OF ADJUSTMENT AND APPEALS APRIL 13 , 2009 PAGE 13 OF 21 hopes you find in his favor. Chair Jones-Denney closed the public portion and opened it up for discussion among members . Board Member Russell said we do have the power to look at variances . Some variances are requested to sometimes keep things that don' t make the City look good. This is a situation where they are asking for a variance for help where it could reduce hardship on a citizen of Apache Junction and improve the property. This seems it wasn' t done intentionally to get around the law of an ordinance . This is where special circumstances existed where he did not know that 1, 000 square feet would be capped and he went ahead before the ordinance was passed and the City did the right thing in initially denying it and coming before the Board. This would be a hardship on the homeowner and by building this new house we can look at preserving the enjoyment of the substantial existing property rights . Making this property a better place for the homeowner is something we should be striving to do. There is nothing detrimental to the neighborhood around him. All three criteria meet the evidence required for a variance. We should grant the variance request . Chair Jones-Denney asked Mr. Baker what is involved in changing the code to be able to put 2 houses on the property. Don' t you have to change the code in order to build 2 separate houses? Planning Manager Fred Baker said the guest house is part of the Zoning Ordinance and to allow 2 units on any lot would have to apply in all districts. There is an option to rezone and split into 2 lots, but that would involve 2 hearings, 1 at the Planning and Zoning Commission and 1 at City Council . Chair Jones-Denney said it can be made into 2 lots . Planning Manager Fred Baker said it would have to be rezoned and staff most likely would support it and go through a hearing process . It is feasible and it is one of the alternatives the staff laid out to the applicant before any building permit was issued. Board Member Spelman asked Mr. Ketterling when the house is no longer used for parents what do you intend to do with it . Mr. Ketterling said it will just be a house for family to visit. It won' t be rented out . BOARD OF ADJUSTMENT AND APPEALS APRIL 13 , 2009 PAGE 14 OF 21 Planning Manager Fred Baker said the ordinance does require deed restrictions to not rent out . We don' t have that deed restriction. It is not considered a guest house . Depending on what the Board does he would have to comply with all the provisions of the guest house ordinance . Board Member Spelman said so he wouldn' t be able to rent it in the future . Planning Manager Fred Baker said the ordinance says he would have to deed restrict his property for that house if it is determined that it is a guest house that it could not be rented. Chair Jones-Denney called for a motion. BOARD ACTION: MOVE THAT CASE BA-1-09, A REQUEST BY DANA KETTERLING, FOR A VARIANCE TO ALLOW AN EXISTING 1 , 478 SQUARE FOOT HOUSE TO REMAIN ON THE PROPERTY AS A GUEST HOUSE AND TO ALLOW A PROPOSED DWELLING UNIT TO BE CONSTRUCTED AT 2086 S . RAINDANCE ROAD, BE ADDED AS THE MAIN RESIDENTIAL STRUCTURE PURSUANT TO THE APACHE JUNCTION ZONING ORDINANCE SECTION 6. 0108 . 3 (1) (C) , BE APPROVED FOR THE FOLLOWING REASONS : 1 . THE HARDSHIP, MR. KETTERLING IS ATTEMPTING TO TAKE CARE OF ELDERLY PARENTS OR IN-LAWS, IS COMMENDABLE IN OUR PRESENT SOCIETY AND HE SHOULD BE AIDED BY OUR CITY . 2 . AT THE TIME THIS BUILDING WAS BUILT THERE WAS A BIT OF NEBULOUS LAW AS TO GUEST HOUSES AND THINKS HE FELL IN THE CRACKS . BOARD MEMBER RUSSELL MOVED TO MAKE AN AMENDMENT TO THE MOTION BY ADDING THE FOLLOWING REASONS : 3 . THE PROPERTY DOES HAVE SPECIAL CIRCUMSTANCES OR CONDITIONS APPLICABLE TO THE SPECIFIC PROPERTY REFERRED TO IN THE APPLICATION. 4 . IN THE ACCEPTANCE OF THIS AS A GUEST HOUSE, MR. KETTERLING IS TO COMPLY WITH ALL REGULATIONS, EXCEPT LETTER (C) AND ORDINANCE NO. 1300 , AND ALL OTHER LETTERED PARTS OF SECTION 6 . 0108 . 3 BE COMPLIED WITH BY MR. KETTERLING. BOARD OF ADJUSTMENT AND APPEALS APRIL 13 , 2009 PAGE 15 OF 21 MOTION: Weller AMENDED MOTION: Russell SECOND: Condon AYES: Weller, Spelman, Russell, Condon NOES: Jones-Denney ABSTAIN: None ABSENT: Urich, Whiteneck Title: Request for a Zone Boundary Line Adjustment from CR-3 to C-3 - Case BA-2-09 Applicant: Lola Pershall Location: 991 E. Old West Highway Request: This is a request for the Board of Adjustment and Appeals to interpret the Zoning Map of the City of Apache Junction in regard to the zoning boundaries assigned to applicant' s property; and/or for the Board of Adjustment and Appeals to extend the zoning district boundary of C-3 (General Commercial Zone) , which exists on part of the parcel, to encompass the entire parcel . The subject parcel is partly zoned C- 3 (General Commercial Zone) and partly zoned CR-3 (Single-Family Residential) . Assistant Planner Yanet Ochoa presented the staff report dated April 13, 2009 to the Board. Board Member Russell asked do you not have the power to grant this and that it has to come before the Board? Planning Manager Fred Baker said that is correct. It is in the Zoning Ordinance. It is the Board of Adjustment' s power. Chair Jones-Denney asked Ms . Pershall to address the Board. Lola Pershall, 214 58th Place, Mesa, AZ, addressed the Board. She has had this property for 30 years in Apache Junction and has not been able to use the back part of the lot. They made us put up a fence . It is good for growing weeds and paying taxes . She would like to change it . Chair Jones-Denney asked Ms . Pershall what use would she put on that property? It has a Feed Store there now. What other commercial uses would you have on that property? BOARD OF ADJUSTMENT AND APPEALS APRIL 13 , 2009 PAGE 16 OF 21 Ms . Pershall said whoever has that now should be able to have access to use that for whatever they need. Before they had the garage and couldn' t park a car or anything back there . The Feed Store should be the same way and be able to put something back there. It looked better than what it does now. Board Member Weller commented on Hoof' s business coming to Apache Junction. We need all the businesses in town we can get . Chair Jones-Denney asked the Assistant Planner to read the C-3 palette of uses to the Board. She opened the hearing for public comments . Judy Roullard, 1135 S. Arizona Road, Apache Junction, addressed the Board. Her back yard is an open field to this property. The best asset she has is the view of the mountains . We don' t want to see this turned into a commercially zoned property. Jeff Cramer, 860 E. Desert Avenue, Apache Junction, addressed the Board. All of the residents on the street live right behind the proposed property. We are concerned about the Feed Store with the hay and there would be issues with mice, cats, cattle, chickens and all the things that come along with this type of business . We would like to keep this as a barrier between the neighborhood. We just don' t feel that this is proper for someplace that we have helped revive. Board Member Weller wanted to know what is to the right of the C- 3 and before you get to the C-4 property that is a triangle? Senior Planner Rudy Esquivias said that is a dedicated public alley. It is an access alley that was dedicated on the original plat for Palm Springs . It is not intended for roadway purposes . It is an access alley for garbage pick up or utility access . Board Member Weller said if we leave this at CR-3 technically, we are land locking it because they don' t have an access . Senior Planner Rudy Esquivias said correct . Jeff Cramer asked for clarification on this alley. Is it something we could close like an abandoned alley? City Attorney Joel Stern advised that this is off of the agenda. On the issue of land locked he believes that the half parcel is BOARD OF ADJUSTMENT AND APPEALS APRIL 13 , 2009 PAGE 17 OF 21 already land locked. Senior Planner Rudy Esquivias said technically, it is one unbroken parcel, so the access to the entire parcel is off of Old West Highway. Planning Manager Fred Baker noted that in addition if the property is developed commercial and the Board makes the boundary line adjustment it would require an 8 foot wall next to residential to buffer whatever use is adjacent to the residential properties . We are presently looking at amending the Landscape and Screening Code. Chair Jones-Denney closed the public portion and opened it up for discussion among Board members . Board Member Weller said the CR-3 property at present is a totally useless piece of property. The owner said she hasn' t been able to do anything to it for 30 years . He thinks the Board is denying a central location in Apache Junction for development. Board Member Russell asked for the definition of C-4 . Assistant Planner Yanet Ochoa said heavy commercial . Board Member Spelman said it is surrounded by commercial . Board Member Russell said one of our powers is that we can put conditions upon things like this . It seems the neighbors concern is large structures blocking the view and animals being stored on that property. We can put a condition on the sale of animals and veterinarian services, large animals and kennels, but allow the property to be used for all types of commercial uses . Planning Manager Fred Baker clarified the height issue . They would be able to build a structure of 25 feet, under the zoning change it would be a maximum of 30 feet and meet the setback requirements. Board Member Spelman said it is a good idea. It will bring new business and this is what we are looking for. Chair Jones-Denney called for a motion. BOARD ACTION: MOVE THAT CASE BA-2-09, A REQUEST BY LOLA PERSHALL, THAT A ZONING BOARD OF ADJUSTMENT AND APPEALS APRIL 13 , 2009 PAGE 18 OF 21 BOUNDARY LINE ADJUSTMENT ON THE CITY OF APACHE JUNCTION ZONING MAP BOUNDARY ON THE PARCEL LOCATED AT 991 E . OLD WEST HIGHWAY, ASSESSOR'S PARCEL NUMBER 102-03-136A, BE ADJUSTED AS FOLLOWS : THE ZONING BOUNDARY FOR THE C-3 (GENERAL COMMERCIAL ZONE) IS EXTENDED SOUTH TO ENCOMPASS PALM SPRINGS TRACTS A-1 & A-3 THROUGH A-5, SECTION 28 , TOWNSHIP 1 NORTH, RANGE 8 EAST (1 . 61-ACRES) ON THE CITY OF APACHE JUNCTION ZONING MAP TO CREATE ONE ZONING DISTRICT OF C-3 (GENERAL COMMERCIAL) ON THE SUBJECT PARCEL SUBJECT TO THE FOLLOWING FINDINGS : 1 . THE GENERAL PLAN DESIGNATES OLD WEST HIGHWAY AS EMPLOYMENT RETAIL IN WHICH C-3 (GENERAL COMMERCIAL DISTRICT) WOULD BE CONSISTENT. 2 . THE BOUNDARY LINE ADJUSTMENT FROM CR-3 (SINGLE-FAMILY RESIDENTIAL) WAS PART OF A NON-CONFORMING USE THAT PREVIOUSLY EXISTED ON THE SUBJECT PROPERTY. ALLOWING THE BOUNDARY LINE ADJUSTMENT WOULD ASSURE THAT NO NON CONFORMITIES WILL EXIST ON THIS PROPERTY AGAIN. 3 . THERE IS NO JUSTIFICATION FROM A PLANNING PERSPECTIVE TO MAINTAIN ONE LOT WITH TWO DIFFERENT ZONING DISTRICTS . ONE COMMERCIAL ZONE ON THAT LOT ON OLD WEST HIGHWAY IS MORE BENEFICIAL THAN ONE SPLIT-ZONED LOT OF A CR-3 (SINGLE FAMILY RESIDENTIAL) AND C-3 (GENERAL COMMERCIAL DISTRICT) . MOTION: Russell SECOND: Weller AYES : Weller, Spelman, Russell, Condon, Jones-Denney NOES : None ABSTAIN: Condon ABSENT: Urich, Whiteneck At this point the recording machine malfunctioned at the end of Tape 1 Side B and nothing was recorded until the beginning of Tape 2 Side A NEW BUSINESS Tape started with NEW BUSINESS discussion. . . . . Title: Haw staff makes a determination on a Lawful Non- Conforming Use BOARD OF ADJUSTMENT AND APPEALS APRIL 13 , 2009 PAGE 19 OF 21 Staff: Senior Planner Rudy Esquivias Senior Planner Rudy Esquivias presented his report to the Board. Board Member Weller asked if #1 for a property, #2 for a building, and #3 for a use, are codified anywhere? Senior Planner Rudy Esquivias said not specifically, they basically relate to our experience with non-conforming uses that we see most frequently. Board Member Weller asked if the criteria be codified so that we have them to work with as a foundation in law. Senior Planner Rudy Esquivias said we could amend the code to make it clearer. It would provide for more clarity and specific direction to people dealing with non-conforming uses that come after us . City Attorney Joel Stern wanted to address Board Member Weller' s inquiry. The way the code is set up is we have permitted uses . Those that are not specifically mentioned would not be allowed. To address every single situation of what is not permitted is impossible . What is permitted is a better list to have . I see your intent, but what is permitted is how this City interprets the code. Planning Manager Fred Baker said the language for determining non-conforming uses or establishing legal conforming use is somewhat antiquated and the memo that Mr. Esquivias reviewed to you is standard for the industry in terms of whether it is a non- conforming property, building, or use . City Attorney Joel Stern said to change that portion of the code would take Planning & Zoning recommendation to the City Council . Title: Discussion on Board of Adjustment Packets Staff: Planning Manager Fred Baker Planning Manager Fred Baker presented his item. The Board wanted to talk about getting the packets earlier so there was enough time to look at material, look at the site, and do your homework. We tried to get it out a week earlier. We will try to get it out on Monday, one week prior to the Monday meeting. REQUEST OF STAFF BOARD OF ADJUSTMENT AND APPEALS APRIL 13 , 2009 PAGE 20 OF 21 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 MAY 11, 2009, IN THE CITY COUNCIL CHAMBERS LOCATED AT 300 E. SUPERSTITION BOULEVARD. MOTION: Spelman SECONDED: Russell AYES: Jones-Denney, Weller, Spelman, Russell, Condon NOES: None ABSTAIN: None ABSENT: Urich, Whiteneck Chairwoman Jones-Denney adjourned the meeting at 9 : 20 p.m. Chairwoman 1 FRED BAKER, IC Executive Secretary/ lanning Manager Clj►7y E50VIvoAS, 56WOR PLAHN�_-ysrZ- BOARD OF ADJUSTMENT AND APPEALS APRIL 13, 2009 PAGE 21 OF 21 ORDER BOARD OF ADJUSTMENT AND APPEALS CITY OF APACHE JUNCTION, ARIZONA CASE NO. BA-1-09 DATE OF PUBLIC HEARING: April 13, 2009 APPLICANT: Dana Ketterling PROPERTY LOCATION: 2086 S. Raindance Rd., Apache Junction, AZ TAX ASSESSOR'S PARCEL #: 103-29-002H SIZE OF SUBJECT PARCEL: 1.25 ACRES ZONING DISTRICT: GR (General Rural Residential Zone), Zonin Ordinance, Section 15.0100 REQUEST: Approval for a variance of Zoning Code Section 6.0108.3 (1) (c) (exceptions for Guest Houses) to allow a 1.478 sq. ft. Guest House. BOARD AUTHORIZATION: Apache Junction City Code, Volume II, Land Development Code, Chapter 1, Zoning Ordinance, Article 11, Section 11.0103 Powers (1), empowers the Board to: "Authorize variances from the strict application of the provisions of this Ordinance in cases in which the strict application of such provision would result in the serious impairment of substantial property right, provided the longterm interests of the community are given full consideration. The applicant at the hearing shall present a statement and adequate evidence in such form as the Board shall require". BOARD OF ADJUSTMENT ACTION: In a vote of 4:1 and two (2) absent, the Board approved, a request by Dana Ketterling, for a variance to allow an existing 1,478 square foot house to remain on the property as a Guest House and to allow a proposed dwelling unit to be constructed at 2086 S. Raindance Road as the main residential structure pursuant to the Apache Junction Zoning Ordinance Section 6.0108.3 (1) (c), with the following findings: ORDER - BOARD OF ADJUSTMENT AND APPEALS CASE BA-1-09 DANA KETTERLING PAGE 2 of 2 1. The hardship Mr. Ketterling is attempting to take care of elderly parents or in- laws is commendable in our present society and he should be aided by our City. 2. At the time this building was built, there was a bit of nebulous law as to Guest Houses and think he fell in the crack. 3. The property does have special circumstances or conditions applicable to the specific property referred to in the application. 4. In the acceptance of this as a Guest House, Mr. Ketterling is to comply with all regulations except letter (c) in Ordinance No. 1300 and all other lettered parts of Section 6.0108.3 be complied to by Mr. Ketterling. SIGNED: NE J S-DENNEY, CHAIRW AN DATE OAR OF ADJUSTMENT AND PEALS ATTEST: S l3- ED AKER,1n5kNNI MANAGER, AICP DATE RUD Q S, SENIOR PLANNER/EXECUTIVE SECRETARY DA E APPROVED AS TO FO RICHARD JOEL STERN, CITY ATTORNEY DATE ORDER BOARD OF ADJUSTMENT AND APPEALS CITY OF APACHE JUNCTION, ARIZONA CASE NO. BA-2-09 DATE OF PUBLIC HEARING: April 13, 2009 APPLICANT: Lola Pershall PROPERTY LOCATION: 991 E. Old West Hwy, Apache Junction, AZ. TAX ASSESSOR'S PARCEL #: 102-03-136A SIZE OF SUBJECT PARCEL: 1.61 ACRES ZONING DISTRICT: C-3 (General Commercial Zone) Section 16.0501 and CR-3 (Single Family Residential) Section 15.0401 Zoning Ordinance. REQUEST: Approval for a zone boundary line adjustment from CR-3 to C-3. BOARD AUTHORIZATION: Pursuant to the Apache Junction City Code, Volume Il, Land Development Code, Chapter 1, Zoning Ordinance, Article 11, Section 11.0103 (b) Powers, empowers the Board to: "Allow the extension of a zone where the boundary line thereof divides a lot in one (1) ownership at the time of enactment of this ordinance". BOARD OF ADJUSTMENT ACTION: Motion and Second by Board Members Russell/Weller: In a vote of 4:0, one abstention and two (2) absent, the Board approved a request by Lola Pershall for a Zoning Boundary Line Adjustment on the City of Apache Junction Zoning Map boundary on the parcel located at 991 E. Old West Highway, Assessor's Parcel Number 102-03-136A with the following findings and conditions: 1. The General Plan designates Old West Highway as Employment Retail in which C-3 (General Commercial District) would be consistent. 2. The Boundary Line Adjustment from CR-3 (Single Family Residential) was part of a non-conforming use that previously existed on the ORDER - BOARD OF ADJUSTMENT AND APPEALS CASE BA-2-09 LOLA PERSHALL PAGE 2 of 2 subject property. Allowing the Boundary Line Adjustment would eliminate non-conformities. 3. There is no justification from a planning perspective to maintain one lot with two different zoning districts. One commercial zone on that lot on Old West Highway is more beneficial than one split zoned lot of a CR-3 Single family Residential and C-3 (General Commercial District). SIGNE J JO -DENNEY, CHAIRWO DATE B ARD d • ADJUSTMENT AND APOEALS ATTEST: _ � 13 ED B E , P NING MANAGER, AICP, DATE o 09 RU S, ENIOR PLANNER/EXECUTIVE SECRETARY DATE APPROVED AS TO FORM: RICHARD JOEL STERN, CITY ATTORNEY DATE