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NOTICE OF MEETING
REGULAR MEETING
FOUNTAIN HILLS BOARD OF ADJUSTMENT
Chairman Paul Ryan
Vice Chairman Carol Perica
Boardmember Nick Sehman
Boardmember John Kovac III
Boardmember Jeremy Smith
TIME:5:30 P.M. – REGULAR MEETING
WHEN:THURSDAY, JANUARY 21, 2021
WHERE:FOUNTAIN HILLS COUNCIL CHAMBERS
16705 E. AVENUE OF THE FOUNTAINS, FOUNTAIN HILLS, AZ
Boardmembers of the Town of Fountain Hills will attend either in person or by telephone conference call; a quorum of the
Town’s Council, various Commission, Committee or Board members may be in attendance at the Board of Adjustment
meeting.
REQUEST TO COMMENT
Due to the COVID-19 pandemic, Meetings of the Fountain Hills Board of Adjustment will be
closed to the public until further notice. However, the public is invited to participate in
these meetings through use of the following tool:
TO COMMENT IN WRITING: Please visit http://www.fh.az.gov/publiccomment and
SUBMIT a Public Comment Card by 3:00 PM on the day of the meeting. These comments
will be shared with the Board of Adjustment.
1.CALL TO ORDER, PLEDGE OF ALLEGIANCE AND MOMENT OF SILENCE – Chairman Ryan
2.ROLL CALL – Chairman Ryan
3.CALL TO THE PUBLIC
3.CALL TO THE PUBLIC
Pursuant to A.R.S. §38-431.01(H), public comment is permitted (not required) on matters NOT listed on the
agenda. Any such comment (i) must be within the jurisdiction of the Board, and (ii) is subject to reasonable
time, place, and manner restrictions. The Board will not discuss or take legal action on matters raised during
Call to the Public unless the matters are properly noticed for discussion and legal action. At the conclusion of
the Call to the Public, individual boardmembers may (i) respond to criticism, (ii) ask staff to review a matter,
or (iii) ask that the matter be placed on a future Board agenda.
5.CONSIDERATION OF approving the meeting minutes of the Board of Adjustment December
17, 2020.
6.PUBLIC HEARING of the application of Heather & Clay Donnelly for a Variance to reduce the
20-foot minimum street-side building setback for an addition on an approximately
0.31-acre lot, located at the southeast corner of San Marcus Drive and El Pueblo Drive (AKA
17503 E. San Marcus Drive, APN#176-04-026) in the R1-8 Single Family residential zoning
district. (Case #V2020-02)
7.CONSIDERATION OF
8.BOARD DISCUSSION/REQUEST FOR RESEARCH to staff.
9.SUMMARY OF BOARD REQUESTS from Development Services Director.
10.REPORT from Development Services Director.
11.ADJOURNMENT
CERTIFICATE OF POSTING OF NOTICE
The undersigned hereby certifies that a copy of the foregoing notice was duly posted in accordance with the statement filed
by the Board of Adjustment with the Town Clerk.
Dated this ______ day of ____________________, 2021.
_____________________________________________
Paula Woodward, Executive Assistant
The Town of Fountain Hills endeavors to make all public meetings accessible to persons with disabilities. Please call 480-816-5199 (voice)
or 1-800-367-8939 (TDD) 48 hours prior to the meeting to request a reasonable accommodation to participate in the meeting or to obtain
agenda information in large print format. Supporting documentation and staff reports furnished the Board with this agenda are available
for review in the Development Services' Office.
Board of Adjustment Meeting of January 21, 2021 2 of 2
ITEM 5.
TOWN OF FOUNTAIN HILLS
STAFF REPORT
Meeting Date: 01/21/2021 Meeting Type: Board of Adjustment
Agenda Type: Submitting Department: Development Services
Prepared by: Paula Woodward, Executive Assistant
Staff Contact Information:
Request to Board of Adjustment (Agenda Language): CONSIDERATION OF approving the
meeting minutes of the Board of Adjustment December 17, 2020.
Staff Summary (Background)
The intent of approving meeting minutes is to ensure an accurate account of the discussion and action
that took place at the meeting for archival purposes. Approved minutes are placed on the Town's
website and maintained as permanent records in compliance with state law.
Related Ordinance, Policy or Guiding Principle
N/A
Risk Analysis
N/A
Recommendation(s) by Board(s) or Commission(s)
N/A
Staff Recommendation(s)
Staff recommends approving the minutes of the Board of Adjustment December 16, 2020.
SUGGESTED MOTION
MOVE to approve the minutes of the Board of Adjustment December 16, 2020.
Attachments
Meeting Minutes DRAFT BOA 201217
Form Review
Form Started By: Paula Woodward Started On: 12/29/2020 07:19 AM
Final Approval Date: 12/29/2020
TOWN OF FOUNTAIN HILLS
MINUTES OF THE REGULAR MEETING
OF THE FOUNTAIN HILLS BOARD OF ADJUSTMENT
DECEMBER 17, 2020
1.CALL TO ORDER, PLEDGE OF ALLEGIANCE AND MOMENT OF SILENCE – Chairman
Ryan
2.ROLL CALL – Chairman Ryan
Present: Chairman Paul Ryan (telephonically); Vice Chairman Carol Perica; Board
Member John Kovac (telephonically); Board Member Nick Sehman; Board
Member Jeremy Smith
Staff
Present:
Development Services Director John Wesley; Senior Planner Farhad Tavassoli;
Executive Assistant Paula Woodward
3.CALL TO THE PUBLIC
Pursuant to A.R.S. §38-431.01(H), public comment is permitted (not required) on matters NOT listed on the
agenda. Any such comment (i) must be within the jurisdiction of the Board, and (ii) is subject to reasonable time,
place, and manner restrictions. The Board will not discuss or take legal action on matters raised during Call to
the Public unless the matters are properly noticed for discussion and legal action. At the conclusion of the Call to
the Public, individual boardmembers may (i) respond to criticism, (ii) ask staff to review a matter, or (iii) ask that
the matter be placed on a future Board agenda.
None.
4.CONSIDERATION OF approving the meeting minutes of the Board of Adjustment October
17, 2019.
MOVED BY Chairman Paul Ryan (telephonically), SECONDED BY Board Member Nick
Sehman to approve the meeting minutes of the Board of Adjustment October 17, 2019.
Vote: 5 - 0 - Unanimously
5.PUBLIC HEARING of the application of Heather & Clay Donnelly for a Variance to reduce the
20-foot minimum street-side building setback for an addition on an approximately 0.31-acre
lot, located at the southeast corner of San Marcus Drive and El Pueblo Drive (AKA 17503 E.
San Marcus Drive, APN#176-04-026) in the R1-8 Single Family residential zoning district.
(Case #V2020-02)
Mr. Tavassoli explained to the Board that the applicant is proposing a 588 sq. ft. addition
(bedroom) that would be flush with the existing house facing El Pueblo Blvd. This is a
preexisting non-conforming residence built in 1983 before pre-incorporation. Any new
construction would be required to meet the current zoning standards. The home and the
addition would be a six and a half feet encroachment from the twenty foot side yard
setback. Analyzing the variance request staff reviews four conditions and whether they are
met in order to approve or deny the request. Mr. Tavassoli reviewed the required four
variance criteria for granting a zoning variance.
There exist special circumstances or conditions regarding the land, building or use
referred to in the application which does not apply to other properties in the district.
The above special circumstances or conditions are preexisting and are not created or
self-imposed by the owner or applicant.
The Variance is necessary for the preservation of substantial property rights. Without
a Variance the property cannot be used for purposes otherwise allowed in this district.
The authorizing of the Variance will not be materially detrimental to persons residing
or working in the vicinity, to adjacent property, or to the neighborhood or the public
welfare.
Mr. Tavassoli stated that there are other corner lots in the same zoning and they contain
public utility easements along the side and real property lines. The Donnelly’s lot does not
contain any unique natural conditions that would warrant a variance. They could remove
the mature fruit trees to build the home addition on the property’s west side. Although the
home was built in 1983 and the setbacks were different, the zoning ordinance states that
any extension of a non-conforming structure shall confirm with the current zoning district
regulations. The property is located in a R1-8- zoning district which requires a twenty foot
street side setback. The property owners are using the property as permitted in the
ordinance. Denying the variance would not alter that ability for the property owners to
continue to the property as a single family residence. There is no loss of substantial
property rights and no undue hardship. It would be detrimental and set a poor precedent to
grant a variance based on a desired modification. Mr. Tavassoli concluded that the Board of
Adjustment find that no variance be issued due to the fact that no self-imposed hardships
were addressed at the hearing.
In response to Chairman Ryan, Mr. Tavassoli said that the wall to the west is not a natural
feature that would restrict the applicant from developing the property as allowed.
Chairman Ryan asked if there were any other homes in that area that used non-confirming
or violated setbacks.
Mr. Tavassoli replied that staff has not identified any recent additions made that would set
precedent.
In response to Boardmember Sehman, Mr. Tavassoli said that the east side public utility
easement is ten feet.
Vice Chairman Perica said that this is a tough case since the setback requirements
changed. She said that there is no question that the Board should stick to the four criteria
and the new standard. She said that if the Board doesn’t follow and enforce the new
standard plus the four criteria there may be other properties asking for a similar or same
variance.
In response to Boardmember Kovac, Mr. Tavassoli said that the set back at the wall where
Board of Adjustment Meeting of December 17, 2020 2 of 6
it joins the house is thirteen and a half feet. The addition would be flush with the existing
residence.That would make it fourteen feet and eleven inches from the property line.
The applicant, Ms.Donnelly addressed the Board explaining why the front of the house was
chosen for the addition. She said that the Fountain Hills Sanitary District verified there is a
sewer structure/pipe on their property and they were not granting use of the easement.
Without the easement there was no room to build an addition to the existing house. She
said they entertained moving the pool equipment to accommodate the addition. She
referenced the pool equipment location on the east side of the property. Relocating the
equipment would be costly and the pipe connections would be convoluted so, they opted to
add the addition to the front east side of the property. She said that the addition would be
flush with the existing structure. A portion of the six foot wall would be removed to
accommodate the addition which isn’t much taller than the wall. She said that the one story
addition would be built to blend in with the house and the neighborhood.
Boardmember Sehman asked if the applicant explored the cost of the addition in other
areas on the property.
Ms. Donnelly replied yes and that the cost is in the neighborhood of $50,000.
Chairman Ryan asked if the wall (displayed in the aerial view) is a fifteen feet setback or
does it taper to different measurements?
Mr. Tavassoli replied that it appears to taper to the north. The gap and the property line, the
wall and the house appear to narrow. Measurements were not taken by staff.
The applicant said it was impossible to get the property surveyed. Four surveyors refused
to survey because they could not locate a center in the street. She said they measured the
best they could and that the inside of the block wall measured twenty feet. The reason we
are asking for the variance is aesthetics.
Chairman Ryan asked Ms. Donnelly if she was aware of any other builds in her
neighborhood that were non-conforming.
Ms. Donnelly replied that the house to the east of their property has a casita that seems to
spill on to the property lines. She is very familiar with the property because her sister is a
realtor and showed the house to a friend.
Chairman Ryan said he was having a hard time with this case not knowing if other
properties were allowed to build beyond the set back requirements. He asked if Mr.
Tavassoli had researched other properties in the area. Chairman Ryan said that it could
result in finding that the Donnelly’s property is not all that unique.
In response to Chairman Ryan, Mr. Tavassoli said that the setback standards were in place
since 1993. He said that the property currently has not met the criteria. The property to the
east does raise an interesting point. Staff has not researched any other property.
Vice Chairman Perica stated that she had mixed feelings regarding this case. She referred
to the last meeting where it was discussed what is right for the person verse what is actually
right for the property. She said she believed that if a precedent was set in the past for an
adjoining property or any property in the area doesn’t mean it is okay for the present
property.
Board of Adjustment Meeting of December 17, 2020 3 of 6
Chairman Ryan replied that the first variance test states” building or use to refer to in this
application which does not comply to other properties in this district.” If the casita on the
adjacent property was an addition since 1993, it does apply to other properties. The issue
of fairness comes up – If it is done for one then it should be done for all. How big is the
neighborhood.
Vice-Chairman Perica replied it is three houses.
Mr. Wesley replied that the general plating is a large area. It would take staff some time to
research any non-conforming structures built after 1993. Mr. Wesley reviewed the four
criteria. Can the property not be used is the third criteria and is not met. The property can
be and is being used.
Chairman Ryan said if the Town gave a variance to the property with the casita east of the
Donnelley’s post 1993 that is an issue.
Boardmember Sehman said that the Board has approved or denied very specific to a
property and the conditions occurring on that property. At least once or more often, this
would not be precedent for other properties in the neighborhood or folks in similar
circumstances. He said from his standpoint he does not know if the casita should be
considered in this decision. Boardmember Sehman said he agreed with the applicant and
Mr. Wesley explaining staff’s standpoint. There could be agreements in favor of the
applicant, but the Board has to consider all four criteria in order to approve the variance.
Vice Chairman Perica said she agreed with Boardmember Sehman and cannot approve a
variance unless all four points are met.
Boardmember Smith said that he agrees with Boardmember Sehman. A precedent would
be set on adjacent properties without analyzing the variance request and reviewing all four
points. Each variance request should be reviewed separately.
Chairman Ryan stated that the Board could: delay the hearing in order for staff to research
other properties in the area regarding non-conforming structures post 1993, approve or
deny the variance as presented.
MOVED BY Chairman Paul Ryan (telephonically), to delay (continue) the hearing in order
for staff to research properties that may have non-conforming structures.
Vote: 3 - 2
NAY: Vice Chairman Carol Perica
Board Member Nick Sehman
Discussion ensued regarding the difference between a new meeting and a continuance
meeting. Staff suggested that the meeting continue to the next scheduled meeting. The
applicant said she was flexible with any decision. Staff suggested the next regular meeting,
(Jan 21, 2020) since they would need time to research non-conforming properties.
Boardmember Sehman said that even if staff discovers non-conforming violation post 1993,
how that relates to this particular property. Does the Board want to set themselves up to
have to review other non-conforming properties for every future request.
Board of Adjustment Meeting of December 17, 2020 4 of 6
Chairman Ryan said that Boardmember Sehman made a good point but Boardmember
Perica said it sets a precedent. If you can do it for one house then it should be the same for
others.
Vice Chairman Perica asked Chairman Ryan what he considers a neighborhood. Is it the
three houses or does it extend further.
Chairman Ryan stated it definitely includes the neighbors.
Chairman Ryan suggested that the meeting resume in two weeks’ time.
Ms. Woodward confirmed the meeting room would be available on January 14, 2021,
(special meeting) or January 21, 2021 which is the regularly scheduled meeting.
MOVED BY Vice Chairman Carol Perica, SECONDED BY Chairman Paul Ryan
(telephonically) to continue the meeting on January 21, 2021.
Vote: 5 - 0 - Unanimously
Mr. Ryan asked that staff research the map locations. Staff would identify any
non-conforming structures post 1993.
Chairman Ryan confirmed there were no public comments and closed the public hearing.
Chairman Ryan said he had been communicating with the Town Manager, Mayor and Staff
regarding the Board of Adjustment hearings be held virtually. He asked if anyone would like
to make a motion to vote on pursuing the Board of Adjustment hearings be held virtually.
Vice-Chairman Perica made a motion to pursue that the Board hearings be held virtually.
Mr. Wesley said that this not an item for discussion on the agenda. The item needs to be on
the agenda in order to take a vote.
Vice-Chairman Perica rescinded her motion.
6.BOARD DISCUSSION/REQUEST FOR RESEARCH to staff.
Chairman Ryan requested that the zoom discussion be added to the next meeting's
agenda.
7.SUMMARY OF BOARD REQUESTS from Development Services Director.
Mr. Wesley said that he would look into adding the zoom discussion to the next meeting's
agenda.
Board of Adjustment Meeting of December 17, 2020 5 of 6
8.REPORT from Development Services Director.
None.
9.ADJOURNMENT
Chairman Ryan adjourned the meeting at 6:49 p.m.
BOARD OF ADJUSTMENT
____________________________
Paul Ryan, Chairman
ATTEST AND PREPARED BY:
______________________________
Paula Woodward, Executive Assistant
CERTIFICATION
I hereby certify that the foregoing minutes are a true and correct copy of the minutes of the Regular
Meeting held by the Fountain Hills Board of Adjustment in the Town Hall Council Chambers on the
___day of ________, 2020. I further certify that the meeting was duly called and that a quorum was
present.
DATED this ____ day of _______, 2020.
_________________________________
Paula Woodward, Executive Assistant
Board of Adjustment Meeting of December 17, 2020 6 of 6
ITEM 6.
TOWN OF FOUNTAIN HILLS
STAFF REPORT
Meeting Date: 01/21/2021 Meeting Type: Board of Adjustment
Agenda Type: Submitting Department: Development Services
Prepared by: Farhad Tavassoli, Senior Planner
Staff Contact Information: Farhad Tavassoli, Senior Planner
Request to Board of Adjustment (Agenda Language): PUBLIC HEARING of the application of
Heather & Clay Donnelly for a Variance to reduce the 20-foot minimum street-side building setback for
an addition on an approximately 0.31-acre lot, located at the southeast corner of San Marcus Drive and
El Pueblo Drive (AKA 17503 E. San Marcus Drive, APN#176-04-026) in the R1-8 Single Family residential
zoning district. (Case #V2020-02)
Staff Summary (Background)
Applicant: Heather and Clay Donnelly
Applicant Contact Information: 17503 E. San Marcus Dr.
Fountain Hills, AZ 85268
(303) 472-8642
Property Location: 17503 E. San Marcus Dr.
APN 176-04-026
Lot 3 of Plat 107-A
Related Ordinance, Policy or Guiding Principle:
Town Code Article 2-8-4 - Board of Adjustment Duties
Town Code Article 2-8-6 - Variances
Zoning Ordinance Section 1.12 Definitions – Street Side Yard
Zoning Ordinance Section 2.07.B – Variance
Zoning Ordinance Section 4.01 E – Nonconforming Uses and Structures
Zoning Ordinance Section 5.06.B Yard Lot and Area Requirements
Zoning Ordinance Section 10.09 Density, Area, Building and Yard Regulations
Arizona Revised Statute 9-462.06 – Board of Adjustment
APPLICABLE TOWN CODE REQUIREMENTS:
Article 2-8 BOARD OF ADJUSTMENT
Section 2-8-4 Duties
B. It shall be the duty of the board of adjustment to hear and decide appeals for variances from the
terms of the zoning code only, if because of special circumstances applicable to the subject property,
including its size, shape, topography, location or surroundings, the strict application of the zoning code
will deprive such property owner of privileges enjoyed by owners of other property of the same
classification in the zoning district. Any variance granted is subject to such conditions as will assure
that the adjustment authorized shall not constitute a grant of special privileges inconsistent with the
limitations upon other properties in the vicinity and zone in which such property is located.
C. The board of adjustment may not:
1. Make any changes in the uses permitted in any zoning classification or zoning district, make
any changes in the terms of the zoning code or make changes to the zoning map, provided the
restriction in this paragraph shall not affect the authority to grant variances pursuant to this
article.
2. Grant a variance if the special circumstances applicable to the property are self-imposed by
the property owner.
APPLICABLE ZONING ORDINANCE REQUIREMENTS
Chapter 2 PROCEDURES
Section 2.07 Appeals and Variances
B. Variance.
1. Any aggrieved person may appeal to the Board of Adjustment for a variance from the terms
of the Zoning Ordinance if, because of special circumstances applicable to the property,
including its size, shape, topography, location, or surroundings, the strict application of the
Zoning Ordinance will deprive such property owner of privileges enjoyed by owners of other
property of the same classification in the same Zoning District. Any variance granted shall be
made subject to such conditions as will assure that the adjustment authority shall not constitute
a granting of special privileges inconsistent with the limitations upon other properties in the zone
in which such property is located.
2. The Board shall hear the appeal at the next regularly scheduled meeting after the required
advertising requirements have been fulfilled. Notice of the hearing shall be made by publishing a
notice thereof in the official newspaper of the Town and by posting the property affected not
less than fifteen (15) days prior to the hearing. The notice shall set forth the time and place of
the hearing and include a general explanation of the matter to be considered.
3. A variance shall not be granted by the Board unless the alleged hardship caused by literal
interpretation of the provisions of this ordinance results in more than personal inconvenience
and/or personal financial hardship, and is not the result of actions of the applicant.
4. In granting a variance, the Board shall impose such conditions and safeguards as are
appropriate to ensure that the purpose and intent of this ordinance remain intact.
5. No nonconforming use or violations of this ordinance with respect to neighboring lands,
structures, or buildings in the same Zoning District, and no permitted use of lands, structures or
buildings in other zoning districts shall be considered grounds for granting a variance.
6. Every variance shall be personal to the applicant therefore and shall be transferable and shall
run with the land only after completion of any structure or structures authorized thereby.
7. Nothing herein contained shall be construed to empower the Board to change the terms of
this ordinance, to authorize uses which violate any other Town ordinance, to affect changes in
the zoning map, or to add to or change the uses permitted in any Zoning District.
Chapter 4 NONCONFORMING USES AND STRUCTURES
Section 4.01 Nonconforming Uses and Structures
E. Extensions:
1. Any extension of a nonconforming structure shall conform with all regulations for the zoning
district in which such structure is located.
Chapter 5 GENERAL PROVISIONS
Section 5.06 Yard, Lot, and Area Requirements
Sub-Section B. Application
No building shall be erected, nor shall any existing buildings be altered, enlarged, moved, or rebuilt, nor
shall any open space surrounding any building be encroached upon or reduced in any manner, except in
conformity with the yard, lot, area and building location regulations hereinafter designated for the
zone in which such building or open space is located, except as otherwise specifically provided.
Chapter 10 SINGLE FAMILY RESIDENTIAL ZONING DISTRICTS
Section 10.09 Density, Area, Building and Yard Regulations
Zoning District = R1-8
Required Building Setbacks:
Front = 20’
Side = 7’
Street Side = 20’
Rear = 25’
Staff Summary (background):
Heather and Clay Donnelly, owners of the 13,499 square foot corner lot located at 17503 E. San
Marcus Drive, submitted a variance request to reduce the 20-foot minimum street-side building
setback to allow construction of an addition to be set back at least 13.5 (13'6") feet from the
street-side property line. In the case of corner lots, the street frontage with the longer dimension is
considered the street side for purposes of measuring the building setback. Therefore, the side adjacent
to El Pueblo Blvd. is considered the street side, while the front is adjacent to San Marcus Drive. Both
sides require a minimum setback of 20 feet.
The residential lot is fully developed and relatively flat with no remarkable topographic features. The
current owners of the 1,505 square-foot single-family residence, which was built in 1983, desire to add
a bedroom/bathroom on the west side. The street-side exterior wall of the proposed addition will be
flush with the existing wall of the primary residence, which at its nearest point is 13.5 feet (13'6") from
the property line. Since the street-side building setback of the existing residence is less than the
current building setback standards, the residence is a pre-existing non-conforming structure, as it was
constructed before the Town’s incorporation in 1990.
As discussed earlier, the addition would be connected to the building at a point 13.5 (13'6") from the
property line. The closest point of the proposed building addition to the property line would be 14.92
(14'11") feet. The applicant’s preference is that the addition follow the setback of the existing block
fence, which is flush with the west side of the exterior wall of the existing residence.
Request for Variance from Zoning Ordinance Section 10.09, Street side Yard Setback in R1-8:
The applicants have requested the Board of Adjustment grant a variance to the required street
side yard setback for the R1-8 zoning district. The zoning ordinance required front yard setback in this
zoning district is 20’, the applicant is asking for an approximately 13’6" setback, a reduction of 6’6".
FINDINGS:
The four findings which must be made by the Board of Adjustment in order to grant a variance are
listed below. The applicants have provided their written justifications for each criterion in their
attached narrative. Staff’s responses are noted below:
1. There exist special circumstances or conditions regarding the land, building or use referred to in
the application which does not apply to other properties in the district.
Applicant: “We are requesting a variance to build the addition that follows these described
points on the existing block wall. We are unable to build the addition on the east side of our
property, due to the sewer easement that is in place on that entire side of the property. If we
were to build a separate “casita" in the back of the lot, it would require my father to access it
with a few steps, which is not feasible for him. Putting a structure there would also force us to
cut down 7 mature fruit trees and plants/shrubs. The only place left to feasibly build an addition
is on the west side of the property.”
Staff: There are several corner lots in the R1-8 zoning district, and particularly Plat 107, that
contain a public utility easement along the side and rear property lines, the nearest being
immediately to the west. Furthermore, the lot contains no unique natural conditions that would
warrant a variance. The Board may consider removal of the mature fruit trees as a condition that
would limit the desired addition to the west side of the property. However, this does not warrant
a reduced building setback.
2. The above special circumstances or conditions are preexisting and are not created or self-imposed
by the owner or applicant.
Applicant: “Our home was built in 1983, and the setbacks were different then they are now. Our
existing home is not located within the 20' setback that is now required."
Staff: Chapter 4 of the zoning ordinance clearly states any extension of a non-conforming
structure shall conform with all regulations for the zoning district in which the structure is
located. The subject property is located in the R1-8 zoning district, which requires a 20-foot
street side setback.
3. The Variance is necessary for the preservation of substantial property rights. Without a Variance
the property cannot be used for purposes otherwise allowed in this district.
Applicant: The applicant did not specifically address this criterion in their narrative.
Staff: The property is currently being used as a single-family residential dwelling and all setbacks
are in conformance with the zoning ordinance. No variance is necessary for the property owners
to use their property as permitted in the ordinance. Denial of the requested variances will not
alter the ability for the property owner to continue to use the property as a single family
residence. There is no loss of substantial property rights. In order for this criterion to be met, the
Board would have to find that allowing the bedroom addition to be flush with the pre-existing,
non-conforming exterior wall of the house falls under the definition of “substantial property
rights.”
4. The authorizing of the Variance will not be materially detrimental to persons residing or working in
the vicinity, to adjacent property, or to the neighborhood or the public welfare.
Applicant: “Our home is tucked away behind many trees and shrubs. Driving down the road, you
do not notice it. It has a flat roof, is shorter than all other homes around us, and disappears into
the landscaping. Keeping the addition on the same line as the existing block wall, does not
change the existing layout of our property. The only difference is that it would look like the
existing block wall is a bit taller, where you can see it in between the landscaping, as we are not
asking to build outside of the existing footprint that already exists.”
Staff: The authorizing of a variance on the basis of a desired modification, and not an undue
hardship, will be materially detrimental to persons residing or working in the vicinity of this
property and to the neighborhood, and to the public welfare because it will treat the subject
property differently than other similar properties and it would set a poor precedent by granting a
variance where no fundamentally unique characteristics exist on the property.
Update:
At the regular meeting on December 17, 2020, the Board directed staff to identify other non-compliant
buildings on other lots in the immediate neighborhood. To date, staff found limited information
regarding accessory structures on two different lots in the area.
The adjacent property to the east (17511 E. San Marcus Dr.) is also zoned R1-8. Based on aerial
imagery, it appears an accessory structure in rear yard was installed in 2003. The structure is not
compliant with the current zoning standards for the R1-8 district. Staff found no variances associated
with this property. A building permit was issued in 2003 for an addition, which expanded the footprint
of the existing residence. Staff was unable to locate a separate building permit for the accessory
structure.
Another lot located approximately 140 feet south east of the subject property at 14852 N. El Pueblo
Blvd., contains an accessory structure in the rear yard. Based on aerial imagery, it appears the
accessory structure was constructed in 2009 or 2010. The structure is not compliant with the current
zoning standards for the R1-8 district, as it is appears to be within the required side yard building
setback. Staff found no variances associated with this property, nor was staff able to locate a building
permit for this structure.
Based on this review, staff did not find that any evidence that others have received a special privilege
that would be denied this property owner if the variance is denied.
Compliance with State Law:
Staff recommends that the Board of Adjustment FIND that no variance may be issued under Arizona
law due to the fact that any hardships being addressed in this hearing are clearly self-imposed.
ARS 9-462.06 H. A board of adjustment may not:
2. Grant a variance if the special circumstances applicable to the property are self-imposed by the
property owner.
Risk Analysis (options or alternatives with implications): NA
Fiscal Impact (initial and ongoing costs; budget status): NA
Staff Recommendation(s):
Staff recommends that the Board of Adjustment FIND that of the required four criteria for granting a
zoning variance have not been met and that the requested Variance from the provisions of Zoning
Ordinance Section 10.09 be DENIED.
SUGGESTED MOTIONS: Move to adopt the findings outlined in the staff report and DENY the
applicant’s requested Variance from the provisions of Zoning Ordinance, Section 10.09.
Related Ordinance, Policy or Guiding Principle
NA
Risk Analysis
NA
Recommendation(s) by Board(s) or Commission(s)
NA
Staff Recommendation(s)
Staff recommends that the Board of Adjustment FIND that of the required four criteria for granting a
zoning variance have not been met and that the requested Variance from the provisions of Zoning
Ordinance Section 10.09 be DENIED.
SUGGESTED MOTION
Move to adopt the findings outlined in the staff report and DENY the applicant’s requested Variance
from the provisions of Zoning Ordinance, Section 10.09.
Attachments
Application
Case Map
Applicant's Letter
Site Plan
Additional Photos
Development Standards Table
Form Review
Inbox Reviewed By Date
Development Services Director John Wesley 01/13/2021 05:57 PM
Form Started By: Farhad Tavassoli Started On: 01/13/2021 03:31 PM
Final Approval Date: 01/13/2021
CASE:
V2020-02
SITE / ADDRESS:
17503 E. San Marcus Dr.
APN #176-04-026
REQUEST:
A variance to the required street side yard
setback of 20 feet
Site Location
11 October 2020
Dear Fountain Hills Neighbors,
We are applying for a variance to the setbacks of our lot line on the west side of our property. We own
a corner lot, which currently has a setback of 20’ from the property line for any building. We purchased
our home last December and moved here full time in March, with our two children. Since then, my 76
year old father has moved in with us and our home is no longer large enough. We plan on building an
additional bedroom and bathroom off the southwest corner of the home, following the footprint of the
existing 6’ block wall fence along our west property line.
Our home was built in 1983, and the setbacks were different than they are now. Our existing home is
not located within the 20’ setback that is now required. Along our west property line where we are
asking for the variance, the house has between a 11’6” to 15’ setback. Many of the homes in the
neighboring area were also built closer than the now required 20’ setback. The existing concrete block
wall is at a slight angle to the property line. The point where it extends from the house has a setback of
13’6”. At a point 28’ to the south of the house, has a setback of 14’11”. We are requesting a variance to
build the addition that follows these described points on the existing block wall.
We are unable to build the addition on the east side of our property, due to the sewer easement that is
in place on that entire side of the property. If we were to build a separate “casita” in the back of the lot,
it would require my father to access it with a few steps, which is not feasible for him. Putting a structure
there would also force us to cut down 7 mature fruit trees and plants/shrubs. The only place left to
feasibly build an addition is on the west side of the property.
Our home is tucked away behind many trees and shrubs. Driving down the road, you do not notice it. It
has a flat roof, is shorter than all other homes around us, and disappears into the landscaping. Keeping
the addition on the same line as the existing block wall, does not change the existing layout of our
property. The only difference is that it would look like the existing block wall is a bit taller, where you
can see it in-between the landscaping, as we are not asking to build outside of the existing footprint that
already exists.
The 6 photos below are of what our home looks like driving down the road and from across the street.
We have highlighted the area of the proposed new build (picture 7), which is essentially adding a few
feet to the height of the existing concrete block fence, as no windows will be put on that wall.
To recap, we are not asking to build outside of our existing concrete block wall. We are not changing
the footprint of what is already there. From the outside, nothing will have changed, except the height of
the concrete block wall. The last picture below shows a highlighted area of what will be different.
We thank you for your time and consideration with this matter, and we look forward to going over this
soon with you all.
Sincerely,
Clay and Heather Donnelly
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Additional photos by staff
Subject property from El Pueblo Blvd., facing east Subject property from San Marcus Dr., facing south
Subject property from El Pueblo Blvd. taken beside
neighbor’s property, facing north
Subject property from El Pueblo Blvd., facing north
ITEM 7.
TOWN OF FOUNTAIN HILLS
STAFF REPORT
Meeting Date: 01/21/2021 Meeting Type: Board of Adjustment
Agenda Type: Submitting Department: Development Services
Prepared by: Paula Woodward, Executive Assistant
Staff Contact Information: John Wesley, Development Services Director
Request to Board of Adjustment (Agenda Language): CONSIDERATION OF
Staff Summary (Background)
Related Ordinance, Policy or Guiding Principle
Risk Analysis
Recommendation(s) by Board(s) or Commission(s)
Staff Recommendation(s)
SUGGESTED MOTION
MOVE to
Form Review
Form Started By: Paula Woodward Started On: 01/16/2021 02:31 PM
Final Approval Date: 01/16/2021