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HomeMy WebLinkAbout2018-05-07 BOA MIINUTES City of Apache Junction, Arizona Meeting Location City Council Chambers t,- Meeting Minutes at City Hall 300 E Superstition Blvd Board of Adjustment Apache Junction AZ www ajdty net Ph(480)982-8002 Monday,May 7,2018 7:00 PM City Council Chambers NOTICE OF PUBLIC MEETING AND EXECUTIVE SESSION AND AGENDAS OF THE BOARD OF ADJUSTMENT MEETING OF THE CITY OF APACHE JUNCTION, ARIZONA Pursuant to A.R.S. § 38-431.02, notice is hereby given to the members of the Board of Adjustment of the City of Apache Junction and to the general public, that on Monday, May 7, 2018 at 7:00 p.m., the Board of Adjustment will hold a regular meeting open to the public at the Apache Junction City Council Chambers, 300 East Superstition Boulevard, Apache Junction, AZ, and, pursuant to A.R.S. § 38-431.03(A) (3), an Executive Session not open to the public at the City of Apache Junction Development Services Department Conference Room located at 300 East Superstition Boulevard, Apache Junction, AZ. The Board may exercise its ability to meet in executive session for both items listed on the agenda for legal advice as much as necessary during the evening so that it is well-advised legally on the matters at hand. The Board will announce to the public before they convene into executive session any time during the meeting when they feel the need to consult with their legal counsel. 1. Call to Order Chair Sheonbeck called the meeting to order at 7:00 pm. 2. Pledge of Allegiance Chair Schoenbeck let the Pledge of Allegiance. 3. Roll Call Present 6- Vice Chair Gage Board Member Borey Chairperson Schoenbeck Board Member Buzzin Board Member Biggs Board Member Weller Excused 1 - Board Member Jones 4. Consent Agenda 18.227 Consideration of approval of agenda. 18-228 Consideration of approval of meeting minutes of March 12, 2018. aggoaWIL 90fA m i"mintitIs 03122018 Chy of Apache Juncdm,Arlrona Page 1 Board of Adjustment Meeting Minutes May 7,2018 S. Motion for Executive Session in the Developement Services Conference Room approved Yes: 6- Vice Chair Gage, Board Member Borey, Chairperson Schoenbeck, Board Member Buzzin,Board Member Biggs and Board Member Weller No: o Excused: 1 - Board Member Jones Vice Chair Gage moved that the Board of Adjustment convene to an executive session in the Development Services Conference Room for the purpose of discussion and consultation with the Board of Adjustment attorney for the purpose of legal advice regarding BA-3.17 and BA4-17 in accordance with A.R.S.§38-431.03(A)(3)and as further outlined on this agenda. Board Member Biggs seconded the motion. Motion passed with a 6-0 vote. Chair Schoenbeck reconvened the meeting. 6. Public Hearings 18-229 Presentation, discussion, public hearing and consideration of case BA-3-17, an appeal of the Zoning Administrator's decision by Bambi Johnson, represented by Adam Martinez and Thomas F. Galvin, Jr. of the Rose Law Group, appealing the Zoning Administrator's interpretation of Apache Junction City Code, Volume II, Land Development Code, Chapter 1, Zoning Ordinance, Article 1-1: Introductory Provisions, Section 1-1-3 Applicability; and Article 1-2: Types of Uses, Section 1-2-4 Administrative Uses; and Article 1-5: Zoning Bulk and Use Regulations, Section 1-5-3 Non-residential Use Regulations, Table 5-3 Non-residential Use Regulations; and Article 1-6 Supplemental Regulations, Section 1-6-23 Temporary Uses and Structures; and Article 1-16 Administration: Section 1-16-12 Conditional Use Permits, Administrative Use Permits and Building Permits. Applicants disagree with and are appealing the Zoning Administralor's interpretation pertaining to permits required for"Temporary Uses"and/or"Private Outdoor Music Festivals/Events", including number of events allowed and conditional use permit. This item was continued from the March 12, 2018 meeting. Affachmenls: BA-3-17 Slaf€Report and Exhibits continued Yes: 5- Vice Chair Gage, Board Member Borey,Chairperson Schoenbeck, Board Member Buzzin and Board Member Weller No: I - Board Member Biggs Excused: 1 - Board Member Jones City Attorney Stern addressed the board regarding the case. He said he received communication from Mr.Galvin that the case Is tied to next week's conditional use permit case with the city council. Therefore,the request Is to set a new date beyond the date of next week. He added this will hopefully resolve some of the issues. He said Mr.Galvin asked the board to reschedule this City of Apache Junction,Arizona Pape 2 Board of Adjustment Meeting Minutes May 7,2018 Item to June 11,2018. Chair Schoenbeck asked for a motion from the board. Board Member Biggs asked the chair to discuss the request Board Member Biggs asked for clarification on how this relates to the item on next week's city council meeting. Board Attorney Ward asked the board if they were able to review a copy of the request by Mr.Galvin. The board replied no. The board was shown the letter from Mr.Galvin. Chair Schoenbeck asked City Attorney Stem If the city had any objection to a continuance of the item.City Attorney Stern said It did not because they are kind of related. He added the item tonight deals with how events trigger the CUP requirements. Next week's item for the council Is a matter involving Mr. Mohiuddin which was approved by the Planning and Zoning Commission. He added Mr.Galvin represents the residents in that case and it involves an event center and how many events Mr. Mohiuddin can have so it is related. He said the hope is that case will be resolved next week so afterwards this case can go or not go on June 11. Chair Schoenbeck asked if there was any sense to move forward with the case without the applicant. City Attorney Stem deferred the answer to Board Attorney Ward, Board Attorney Ward answered they have been given notice,but chose to not appear so he doesn't think there is an Issue that they're not here. Board Member Biggs asked If they could hear the case regardless of them being present Board Attorney Ward said yes,but won't comment on the prudence of it Chair Schoenbeck said he thinks there would be a greater danger of appeal to the decision if the applicant Isn't present Board Attorney Ward said there would be a greater chance of appeal if It was. Board Member Biggs said this is the third time they have asked to continue the case and the third time they've failed to show up at the meeting. He said he understands they are asking to continue the Case,but there Is no guarantee that It will occur. He said the applicant and their lawyer should be at the meeting until at least the board votes to continue the case. He said additionally,at the Planning and Zoning meeting where the property in question was discussed, he remembers the applicant and their attorney getting up and walking out when the case didn't go in their favor. He added he has a hard time continuing the case for a third time. He added he understands they are related but at the same time they are not He said if city council throws everyone a curve call,the case will be seen on June 11th. Chair Schoenbeck said since there will be no presentation by staff or the applicant he opens up the public hearing portion of the item. Board Member Biggs asked if there was realty no one ready to present their case,staff or applicant City Attorney Stern said he chooses not to make a presentation because he believes the matter Is related to the Item that will be presented to the city council next week. Mehmood Mohiuddin,2304 N.Cortez Rd.,Apache Junction addressed the board. Mr.Mohiuddin said he doesn't understand why every time they around there are curveballs. Peopte are trying to change. He said for everyone else except for Mo. He said the CUP court has been written; CUP has been Issued to the different locations and different restaurants,different bars and different businesses. He said everything went fine with absolutely no problems.He said at the last commission meeting,they presented police phone calls,noise Issues were brought up,17 phone calls have been made. He never received any citations. He said they aren't doing anything out of the ordinary. He said the CUP has already been approved. It's been approved by Planning and Zoning. He asked why every single time they have bull riding going on,the same thing happens. He added they aren't violating any city code of the city of Apache Junction. He added the Hitching Post has generated over i million dollars In taxes for the city,state and federal governments. He said they are supporting the city and other organizations such as the fire department,police department and library. He asked why there Is such a hard time for the businesses that are trying to make ends meet. He Commented that those that are causing problems don't contribute to the city. He said they receive letters from the city without any type of Chy of Apache Junction,Arizona Page 3 Board of Adjustment Meeting Minutes May T, 2018 Investigation. He added he fools It is harassment and that he is being treated differently than regular people living in Apache Junction. Having no one also wishing to address the board,Chair Schoenbeck closed the public hearing portion of the Item. Board Member Weller asked City Attomey Stem about the complaints and feels the board should see the results of the complaints and who made them. Board Attorney Ward said the item before the board is limited. He added it relates to if the code supports the action of the city and whether or not the applicant'a position Is proper. He added this isn't related to what Mr.Mohluddin Is speaking of or what you are asking for as well. He added that it Isn't entirely relevant to the conversation. Chair Schoenbeck said the Issue is very specific-was the city code interpreted properly by the zoning administrator or not He said that although it applies to only this Issue,it will also apply to many more instances. Board Member Welter agreed. Chair Schoenbeck said tonight the board has to decide whether to rule on the case or continue the case to give the applicant and city staff a chance to present their case. He added his concern Is If the board makes a decision to move forward this evening, it gets appealed and it costs the city money. Board Member Biggs said the case is a localized Instance with a specific business. He also said that It affects every business and organization that wants to host an event Chair Schoenbeck said as it stands now,four events are allowed a year according to the interpretation. The only thing the board can do is either confine that or turn it upside down. Board Member Biggs said that according to next week's council meeting and whichever way city council decides,this case will go away. He added he doesn't think it will. Chair Schoenbeck said it may not Board Member Biggs said that is the issue for him•passing the Issue to city council. He said he believes they pass Issues to the city council on a lot of things. He added not just this board,but many boards. He added that this does affect more than one business,and while this is a specific Instance tonight,he feels they can spend too much time on it He said this is an issue for the entire city and it's bigger than the one Issue of the Hitching Post He said that Is why he fools they should stop passing the buck and do something. Chair Schoenbeck said they've talked before about continuing the item until the next meeting with the condition that both parties are present to present their case. City Attorney Stern said the board can make a motion that continues the item until June 11th which will be the last continuance.He added it will be a message to the other side. He said he doesn't plan to call anyone tonight,and he will not present a case,and he wishes to respect his colleague.He added he has legal reasons why they would like to continue the item and he would like to accommodate the request and feels he would do the same for him. Board Member Biggs asked City Attorney Stem Is he was refusing to see the case tonight and said It was up to the board and not up to him. He added if the board decided to hear the case,he would have to present the case. City Attorney Stern said he is the attorney for the city and doesn't have to present if he doesn't want to. He added the board can do whatever they want tonight,but he recommends the item be continued to a date certain,June 11th,and staff send a letter to Mr.Galvin that it will be the last continuance. City Attomey Stern said that is a strong message. Chair Schoenbeck asked for a motion. Board Member Weller motioned that the board continue this item until 11 June and that at 12 June at 0000 hours is mute and will no longer be held. City Attorney Stern said the last part of the motion Isn't valid. He said it should say June 11 Is the last continuance and there will be no more continuances entertained. Chair Schoenbeck asked Board Member Weller to restate his motion. Ctty of Apache Junctlon,Arizona P.Q.4 Board of Adjustment Meeting Minutes May 7,2018 Board Member Weller motioned(hat the case BA-3-17 be continued until 11 June and a letter be sent to the applicant that this is the last continuance. Board Member Borey seconded the motion. Item passed with a 5-1 vote. 18-230 Presentation, discussion, public hearing and consideration of case SA-417, an appeal of the Zoning Administrator's decision by Joel Kaplan, appealing the decision of denial of nonconforming rights for four recreational vehicle ("RV") rental spaces, on a RS-20M (Medium Density Single-family Detached Residential)-zoned property at 529 N. Gold Drive. Mr. Kaplan contends that the property does have rights for the four RV spaces in addition to the duplex, triplex and mobile home currently on the property. This item was continued from the March 12, 2018 meeting. Attachments: BA-4-17 reQ w exhibits 5 1 A-4-17 staff rep andexhibit 1 BA-4-17 exhibits 2 Invoice 2018356 from Cooper Aerial Surveys Co City Qleri AfflQpvit denied Yes: 6- Vice Chair Gage, Board Member Borey, Chairperson Schoenbeck, Board Member Buzzin, Board Member Biggs and Board Member Weller No: 0 Excused: 1 - Board Member Jones Chair Schoenbeck swore in the witnesses. City Attorney Stern said the applicant would like to allow the city to present their case first Having no opposition by the board,Senior Planner Esquivias presented case BA-4-17,an appeal of the Zoning Administrator's decision by Joel Kaplan,appealing the decision of denial of nonconforming rights for four recreational vehicle("RV")rental spaces,on a RS-20M(Medium Density Single-family Detached Resldential)-zoned property at 629 N.Gold Drive, Mr, Kaplan contends that the property does have rights for the four RV spaces in addition to the duplex, triplex and mobile home currently on the property. Chair Schoenbeck asked If something like this were to be grandfathered In,would there have to be continued use. Senior Planner Esquivias answered yes,a non-conforming use is supposed to be used every year without a time lapse since the zoning change was made.He added that It is difficult to monitor since RVs come and go. He added that when he talks about RV spaces,he means a space with a facility not necessarily an individual unit. He said once again,his research revealed that there were no RVs present on the property prior to 1985. The purpose of the rezoning was not for RV spaces and he feels the applicant hasn't submitted satisfactory evidence to prove there were RV spaces. He said a use is supposed to be continuous,that is why we ask for affidavits and other evidence that established a continuity of use as well as an establishment of use. Board Member Biggs asked if all owners of the property since 1984 have inherited the problem. Senior Planner Esquivias said he believes so.Mr.Millet indicated it was he who installed the RV spaces sometime after 1935,but staff has been unable to pin down a date from him. He added Chy arApache Junedon,Arl2ona Page 5 Board of Adjustment Meeting Minutes May 7,2018 there's been guesses when the RV pedestals may have been installed,but there is no proof that It was prior to March of 1985. Board Member Biggs asked about an affidavit and the installation of the pedestals,and how can the electric company do It without permits. Senior Planner Esquivias said those types of things are done by independent contractors. He added SRP would extend power to the property,but anything that comes off that pole Is typically done by an electrical contractor.He said there are different kinds of contractors,and the ethical contractors will pull permits while the unethical sometimes don't. Board Member Biggs asked if staff knows who the electrical contractor was who installed the power to the pedestals. Senior Planner Esquivias said staff doesn't know. Board Member Biggs asked Senior Planner Esquivias if Mr.Kaplan,in 2016, knowingly bought the property with non-conforming privileges. Senior Planner Esquivias said yes. Board Member Biggs then said Mr. Kaplan knew the property wasn't up to code,yet bought the property anyway. Senior Planner Esquivias said Mr.Kaplan knew the property had certain non-conforming privileges,and staff at that time determined there were no permits issued that showed the RV facilities had ever been installed with permits. He added yes,he did know that information when he bought the property. Board Member Biggs asked If Mr.Kaplan worked with city staff to bring the property into compliance since he bought the property. Senior Planner Esquivias replied there has been communication prior and since Mr.Kaplan bought the property. Board Member Biggs asked how many non-conforming spaces he was asking for. Senior Planner Esquivias answered he originally requested one,but with this appeal case he's asking for four. Board Member Biggs asked for specific dates for the pictures that were presented during his presentation. Senior Planner Esquivias said the pictures were prior to Mr.Kaplan owning the property. Board Member Biggs asked if there were any affidavits prior to 1984. Senior Planner Esquivias showed that pages 28,29 and 30 in the December 11 staff report,a Miss VanSickle states she knows the trailers were there before 86. He added another gentlemen said the trailers were there In 1982,however,Mr.Millet said he didn't install trailer spaces until after 1985. He said that information was contradictory. He then said a Ms.Williams indicated she lived there in 91-92 and that she knew the park was there since 56. He said this doesn't establish the use prior to 85. Senior Planner Esquivias said staff did not consider these definitive pieces of Information. Board Member Biggs asked if on the 1984 rezoning application,question 119,the answer was to properly zone the property to the existing and surrounding usage of the area.Board Member Biggs said that it sounds vague. Senior Planner Esquivias said that is how staff read it also. He added that on one hand,Mr.Millet was complaining of the uses that were around there and his rezoning would improve the property,yet he did the exact same thing as the surrounding uses he was complaining about Senior Planner Esquivias said staff thought that he had a misunderstanding of what CR-5 meant He added CR-5 meant apartments,not RV spaces. Board Member Biggs asked if it was the city's responsibility to let property owners know of their proper zoning compliance. Senior Planner Esquivias said if they brought up Mr. Nakagawa Into the conversation,he may be better to answer the question. He added that both Mr.Nakagawa and Ms.Connally have stated in writing that CR-5 was never intended to accommodate RVs. Vice Chair Gage asked if the property is connected to the sewer system. Senior Planner Esquivias said he isn't sure and said Mr.Kaplan or his attomey can answer that question. City Attorney Stern requested that Director Kirch give his presentation, Director Kirch gave a presentation on case BA4•17 to the board. Vice Chair Gage asked what the size of the white dot on the photograph is. Director Kirch said it is approximately 9 feat by 20 feet This would be the size of a travel trailer,but added a travel trailer would have a shadow like the rest of the objects in the photograph. Board Member Borey asked if it could be a stab. Director Kirch said It's hard to say what it is,only what It's not. He said it's not casting a shadow,it's not a car of any sort Director Kirch painted out other things in the picture that were casting shadows. Board Member Biggs asked what is going on with the septic waste issues and if they've been City of Apache Junction,Arizona Page a Board of Adjustment Meeting Minutes May 7, 2018 resolved. Director Kirch answered that the applicant or his attorney can address that Issue. He added that the department received a complaint today about raw sewage which was forwarded to the county and the sewer district He added the city's code enforcement deals with 5 RVs in the backyard. Sewage complaints are forwarded to the county. Board Member Biggs asked if a business license was ever issued. Director Kirch said there is no record of a business license issued. He added the question which was asked of the city clerk was if there was any sales tax business license for RV spaces to which the answer was no as well. He said for those fi rental units there should also have been business licenses for all the previous owners. He added he doesn't know if Mr.Kaplan has one. Board Member Biggs asked again if the city ever issued a business license since 1984. Director Kirch said not for the RVs, but there may be ones Issued for the rentals. GIS Coordinator Kliner addressed the board and confirmed the source of the aerial was from Cooper Ariel and the date flown was March 13,1985. He added the aerial was purchased by the city on April 9,2018. He also added it was taken by a Lykar RC10 camera. He said they were able to get 2500 pixels per inch with their new scanning technology from the original imagery. He said this is why you see better Imagery than the original Image. The reference scale Is 1 - 24000 which Is equal to one inch is equal to 2000 feel.He added it's been blown up so the scale Is 1 inch Is equal to 100 feet because of the level of pixels of the new imagery. Vice Chair Gage asked the purpose of the 85 flight GIS Coordinator Kliner said he doesn't know the purpose of the 1985 flight.Board Member Biggs asked if the image included the whole city. GIS Coordinator Kliner said the original Image includes the entire incorporated area of the city in 1985. Board Member Weller said the images were from when the city Incorporated. Senior Planner Esquivlas clarified that the city incorporated in November of 1978. He added that In 1985 the official zoning ordinance was adopted. He then said the aerials were flown to coincide with the adoption of that ordinance. Board Member Wells thanked Senior Planner Esquivlas for the clarification. Director Kirch explained how the 1985 map is used when citizens ask for letters of non-conformity. City Attorney Stern said he would like to sum up the city's response after Mr.Jackson presents his case, Director Kirch said Mr.Nakagawa,city planner at that time,Is available by phone If needed. City Attorney Stern said he will leave it up to the board if they'd like him to speak but there is informatlon In the file from him. Chair Schoenbeck asked the board if they'd like to speak with Mr.Nakagawa to which they replied they are good with the Informatlon in the file. Mr.Eric Jackson,representing the applicant, presented case BA-4-17 to the board. Mr.Jackson asked Mr. Millet,the owner of the property in 1985,about the property and what it was used for while he owned it Chair Schoenbeck asked Mr.Millet why there weren't any permits,sales taxes or business licenses while he owned the property.He added that there is no paper trail of any kind for the owner's claims. Board Member Biggs asked Mr.Millet about why he chose not to build apartment buildings, Board Member Weller said the Planning and Zoning paperwork didn't say anything about pouring a pad or installing electric and sewer. Board Member Weller asked Mr.Millet if he had any proof the work was done by qualified contractors. Mr.Jackson asked Mr. Millet if he had any proof. Mr.Millet said he used a local electrical contractor for the pedestals. Board Member Biggs asked why he didn't build the apartment units as approved but chose not to. Mr.Millet said he used what was there. Board Member Weller said there was a ruling from the Planning and Zoning that said they can build apartments. Board Member Biggs said on the rezoning application submitted by Mr.Millet,Mr.Millet said to properly zone this property to the exisUng and surrounding usage of the area which is now high density opportunity,on the general plan. He added Mr.Millet said he planned to add additional units which will greatly Improve the area. Mr.Jackson said the zoning doesn't preclude the use of RVs and trailers. Board Member Chy orapsche Junctfan,Arizona Pays 7 Board of Adjustment Meeting Minutes May 7, 2018 Biggs asked for information on CR•S zoning. Senior Planner Esquivias explained where the zoning code was located in the staff report and explained the zoning codes and districts. City Attorney Stern asked Senior Planner Esquivias questions regarding his tenure at the city and how long he's been interpreting city code. Board Member Biggs asked Senior Planner Esquivias about his December 11 staff report and the different zoning codes and the use of trailers on a property in those particular zoning areas. Mr.Jackson said that is how staff is interpreting statutes and the definition of a dwelling and from a legal point of view should be Interpreted differently. Chair Schoenbeck asked City Attorney Stem if the definition of a dwelling Is in the city code. Mr.Jackson asked the board to allow the applicant to complete his presentation. City Attorney Stem asked to cross examine Mr.Millet. He asked Mr.Millet how long he owned the property to which he replied four or fire years. He then asked him the approximate dates he owned the property to which Mr.Millet replied 1983184 to 1986/1989. City Attorney Stern asked Mr. Millet If he collected rent from RV users to which he said yes. City Attorney Stern asked Mr.Millet if he had a business license for the rental business activity to which he replied yes. City Attorney Stern asked Mr.Millet if he had a copy of the business license to which he said no. City Attorney Stem asked Mr.Millet if he paid rental tax to the city from that revenue to which he replied yes. City Attorney Stern asked Mr.Millet if he had a copy of his transaction privilege tax to which he said no. City Attorney Stern asked Mr.Millet if he obtained a building permit for the pedestals at any time to which he said no.City Attorney Stern asked if he paid the electrical bill to which he said yes. City Attorney Stern asked how the electrical was charged,to which Mr.Millet said monthly. Vice Chair Gage asked about the septic situation on the property. Mr.Millet replied that there is a septic tank behind the large house. Board Member Borey asked what was the capacity of the septic tank. Mr.Millet said he was told it was a large tank. Vice Chair Gage asked if the septic tank was there when he bought the property. Mr.Millet replied everything was there when he bought the property. Board Member Biggs asked Mr.Millet if he had any documents from when he purchasedit, such as an appraisal when he bought the property. Mr.Millet said no.Board Member Biggs asked If there was any type of documentation regarding what was on the property when he purchased it. Mr.Millet said no. Mr.Jackson continued his presentation by questioning Mr.Kaplan. Mr.Jackson asked Mr.Kaplan when he purchased the property. Mr.Kaplan said 2017. He said he purchased the LLC that owned the property and therefore he owned that asset,the property. Mr.Jackson asked Mr. Kaplan if he met with city staff regarding the property to which he replied yes. Mr.Kaplan said he was told by city staff that he had to show that there were trailers on the property prior to March 1985 and It could be granted. Mr.Kaplan said he submitted the application for non-confirming status. Mr.Kaplan presented a history of the use of the property according to his research. Mr.Jackson asked Mr.Millet if there were any slabs on the property in 1984,to which he said no. Mr.Jackson asked Mr.Millet if he removed any slabs from the property,to which he said no. Mr.Kaplan continued his presentation of the history of the use of the property. Chair Schoenbeck asked Mr.Kaplan if he'd purchase the property based just on the aerial pictures. Mr.Kaplan said he would. Chair Schoenbeck asked if he would have bought the property if he saw the pictures of the RV pads. Mr.Kaplan said that would be a hard question to answerwithout due diligence. City dApache Junction,Arizona Page a Board of Adjustment Meeting Minutes May 7,2018 Board Member Biggs asked if there is a business license for the property.Mr.Kaplan said yes. Board Member Biggs asked If he had proof that he pays the tax on a quarterly basis. Mr.Kaplan said yes. Board Member Biggs asked Mr.Kaplan about the recent sewer leak that was reported. Attorney Ward said that question isn't relevant to the case at hand. Board Member Boray asked about the rezoning in 1984, Mr.Kaplan replied the confusion comes in with the interpretation of the zoning code and the difference of an RV,manufactured home, etc. Board Member Borey said in 1985 it changed and they want to keep It at CR-5 zoning. Mr. Jackson said that Is the problem,CR-5 does not prohibit trailers. Board Member Biggs said he agrees that Is a problem on the definition of a dwelling. Attorney Ward said the question isn't appropriate during the applicant's presentation. Mr.Kaplan continued his presentation to the board. Mr.Jackson asked when Mr.Kaplan got the aerial photographs. Mr.Kaplan said when he riled his application for non-conforming use. City Attorney Stem asked Mr.Kaplan if he was in escrow for the property in 2016. Mr.Kaplan replied 2017. City Attorney Stem asked Mr.Kaplan if he was aware of the 2015 lawful non-conforming letter that Mr.Tierney got from the city. Mr.Kaplan said he was aware of the letter by closing. City Attorney Stem asked if he was aware of the limitations for purposes of buying the property for rental purposes. Mr.Kaplan said no and as far as the non-conforming letter, it was only for the manufactured home and not being able to replace it in case of fire. City Attorney Stem asked if he read the letter. Mr.Kaplan said yes,but he doesn't remember every word of it- City Attomey Stern asked Mr.Kaplan if the letter mentioned RV spaces for rental were allowed. Mr.Kaplan said obviously not because that is why he's at the meeting. City Attorney Stern asked if he remembered reading it In the letter. Mr.Kaplan said no,but if the letter said that, he did read it City Attorney Stem asked Mr.Kaplan if he knew the space rentals were not allowed, Mr.Kaplan replied yes,space rentals were not allowed. City Attorney Stem asked Mr. Kaplan if he went to the city to request permission to rent RV spaces. Mr.Kaplan replied yes. City Attorney Stern asked Mr.Kaplan if the city told him he had to get a letter of non-conformity. Mr.Kaplan said that is correct City Attorney Stern asked Mr.Kaplan if he applied for It Mr. Kaplan said yes. City Attorney Stern asked Mr.Kaplan if he was turned down for the non-conforming letter. Mr.Kaplan said yes. City Attorney Stern asked Mr.Kaplan if he appealed. Mr.Kaplan said yes. City Attorney Stem asked if the city allowed him to appeal the decision within the 30 day appeal period. Mr.Kaplan replied he doesn't remember the exact date,but whatever date he has,he's assuming is correct Chair Schoenbeck called for a 5 minute break. Mr.Jackson gave a summation of Mr.Kaplan's case. He mentioned the affidavits of witnesses from 1982, He then said there were trailers on the property since that time. He also reminded the board there is no definition of a dwelling. He also added that Mr.Kaplan hasn't added anything also to the property. He added his client is relying on people to know what was there. He said none of the people who signed the affidavits have anything to gain from their statements. City Attorney Stern gave a summation of the city's case. He said the 1984 rezoning says nothing about RVs being allowed. He added that when Mr.Millet added the electrical pedestals there is no evidence of permits and business or tax licenses for the rentals, City Attorney Stern noted an email from a code compliance officer from May,2015 noting there were no permits Issued for the electric pedestals and in his email believed they were illegal spaces. He added that it Is up to City orApache Junction,Arl:ona papa 9 Board of Adjustment Meeting Minutes May 7, 2018 the zoning administrator to determine what the law is for zoning, He also said that with a tiered system of zoning, If It says it's not allowed,it is prohibited. He then referred to a 1984 question of a council member to Mr_Millet about the height of buildings. City Attorney Stern said the board should judge what they see in the aerial. He also said March 7,1985 is the crucial data and if there are no RVs before that date then non-conforming use Is not proven and the burden lies on the applicant. He added the 2015 letter of non-conformity the city recognized what was allowed on the property. He added at that time the former owner could not prove RVs were on the site. The owner did not appeal the decision at that time. In 2017,Mr.Kaplan testified he knew of the 2015 letter. City Attorney Stem continued his summation mentioning Senior Planner Esquivias' staff findings that Mr.Mlllefs Information was non-conclusive and contradictory. He mentioned City Clerk Connelly's affidavit and her testimony. Chair Schoenbeck opened the discussion for the board. The board discussed the evidence and staff report as presented on the case. Board Member Weller discussed the 1984 discussion during the city council meeting. Vice Chair Gage spoke about the lack of documentation of space rentals and feels If there were some kind of documentation it would be easier for the board to determine the case. Mr.Kaplan was asked if he has any documentation of proper space rentals. He replied no. (Unintelligible discussion by Attorney Ward.) Board Member Biggs asked for the definition of a dwelling. Senior Planner Esquivias presented the definitions of the 1985 zoning ordinance. He said there are two different definitions for dwellings and trailers and they are clear. He read the definitions as stated in the 1985 zoning ordinance. He also explained the differences in the general rural zoning codes. (Unintelligible statement by Attorney Ward.) Mr.Jackson addressed the interpretation of the zoning code by Senior Planner Esquivias and his interaction of Senior Planner Esquivias. Chair Schoenbeck opened the public hearing portion of the Item. Terry Kridler,489 N.Gold Dr.,Apache Junction addressed the board, She spoke about the sewage issues,garbage Issues and homeless people who go through the garbage. She also mentioned how people congregate on the property and the traffic associated with the people congregating. She also said there is a concrete pad under the RV that's been there for two years. She then mentioned conflicting information regarding when the property was converted to sewer as opposed to septic. Gil Denbesten,560 N.Valley Dr.,Apache Junction,addressed the board. He said there is a 5th wheel parked on the property and there is a constant flow of transient people on and off the property. He mentioned he called the police today on someone. He requested the board deny the request of the applicant. Chair Schoenbeck closed the public hearing portion of the Item. Chair Schoenbeck stated he would have liked to have seen some kind of paper trail of the use of the property, He added the aerials don't prove anything to him. Vice Chair Gage said he agreed with Chair Schoenbeck on the lack of a paper trail and any proof of usage from the aerials. City of Apache Junction,Arizona Page 10 Board of Adjustment Meeting Minutes May 7, 2018 Board Member Biggs said he agreed with the two statements and added that the property was bought knowing the prior request for non-conforming use was denied. He added there was proper zoning code in 2015. Board Member Buzzin said he feels it's all hearsay. Board Member Borey said they had from 1985 to improve the property which hasn't been done. Board Member Weller motioned that the disapproval of the city stands due to the fact that there is no paper trail,the 1984 ruling was that apartments would be built,later on it talks about single story,there is no business records,there are no transactional records whatsoever,as to where they rented the property,[eased it out or whatever and I would deny the request for approval. Board Member Biggs seconded the motion. Motion passed with a 6-0 vote. 7. Selection of Meeting Dates, Times, Location and Purpose approved Board Member Biggs moved that the Board of Adjustment hold a regular meeting on June 11, 2018 at 7:00 pm In the City Council Chambers located at 300 E.Superstition Boulevard. Board Member Buzzin seconded. The motion passed with a 6.0 vote. 8. Adjournment Adjournment: Meeting adjourned at 10:12 p.m. Frank Schoenbeck Chairperson Chyof Apache JuncUon,Adions ➢ape fl