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HomeMy WebLinkAboutAGENDApacket__06-15-23_0530_504       NOTICE OF MEETING REGULAR MEETING FOUNTAIN HILLS BOARD OF ADJUSTMENT    Chairman Paul Ryan  Vice Chairman Carol Perica Boardmember Nick Sehman Boardmember Jeremy Smith Boardmember Erik Hansen    TIME:5:30 P.M. – REGULAR MEETING WHEN:THURSDAY, JUNE 15, 2023 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. Notice is hereby given that pursuant to A.R.S. §1-602.A.9, subject to certain specified statutory exceptions, parents have a right to consent before the State or any of its political subdivisions make a video or audio recording of a minor child. Meetings of the Board of Adjustment are audio and/or video recorded and, as a result, proceedings in which children are present may be subject to such recording. Parents, in order to exercise their rights may either file written consent with the Town Clerk to such recording, or take personal action to ensure that their child or children are not present when a recording may be made. If a child is present at the time a recording is made, the Town will assume that the rights afforded parents pursuant to A.R.S. §1-602.A.9 have been waived.  REQUEST TO COMMENT   The public is welcome to participate in Board of Adjustment meetings. TO SPEAK TO AN AGENDA ITEM, please complete a Request to Comment card, located in the back of the Council Chambers, and hand it to the Executive Assistant prior to discussion of that item, if possible. Include the agenda item on which you wish to comment. Speakers will be allowed three contiguous minutes to address the Board. Verbal comments should be directed through the Presiding Officer and not to individual Boardmembers. TO COMMENT ON AN AGENDA ITEM IN WRITING ONLY, please complete a Request to Comment card, indicating it is a written comment, and check the box on whether you are FOR or AGAINST and agenda item, and hand it to the Executive Assistant prior to discussion, if possible.            1.CALL TO ORDER, PLEDGE OF ALLEGIANCE AND MOMENT OF SILENCE – Chairman Ryan        2.ROLL CALL – Chairman Ryan     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.     4.CONSIDERATION AND POSSIBLE ACTION: Approval of the meeting minutes of the Board of Adjustment May 18, 2023.     5.PUBLIC HEARING, CONSIDERATION, AND POSSIBLE ACTION: A request by Jay Schlum for a Variance to reduce the minimum front yard setback from 20 feet to approximately eight feet to allow the addition of a patio cover in the front setback area at 17114 E Fairway Ct. (APN# 176-10-099) in the R1-8 Single Family residential zoning district. (Case #VAR23-000002)      6.BOARD DISCUSSION/REQUEST FOR RESEARCH to staff.    7.SUMMARY OF BOARD REQUESTS from Development Services Director.    8.REPORT from Development Services Director.    9.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 ____________________, 2023. _____________________________________________  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. Doors open to Council Chambers at 5:15 pm for public seating. The Board of Adjustment may go into Executive Session for the purpose of obtaining legal advice from the Town’s Attorney(s) on any of the above agenda items pursuant to A.R.S. 38-431.03(A)(3).” The public may be asked to temporarily relocate    Board of Adjustment Meeting of June 15, 2023 2 of 3 if an executive session occurs. The public will be invited back into Council Chambers when the Board returns from executive session.    Board of Adjustment Meeting of June 15, 2023 3 of 3 ITEM 4. TOWN OF FOUNTAIN HILLS STAFF REPORT    Meeting Date: 06/15/2023 Meeting Type: Board of Adjustment Regular Meeting  Agenda Type:                   Submitting Department: Development Services Prepared by: Paula Woodward, Executive Assistant Request to Board of Adjustment Regular Meeting (Agenda Language):  CONSIDERATION AND POSSIBLE ACTION: Approval of the meeting minutes of the Board of Adjustment May 18, 2023. 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 May 18, 2023. SUGGESTED MOTION MOVE to approve the minutes of the Board of Adjustment May 18, 2023. Attachments Summary Minutes & Verbatim Transcript  Form Review Form Started By: Paula Woodward Started On: 06/06/2023 03:04 PM Final Approval Date: 06/06/2023  Board of Adjustment May 18, 2023 1 of 2 TOWN OF FOUNTAIN HILLS MINUTES OF THE REGULAR MEETING OF THE BOARD OF ADJUSTMENT MAY 18, 2023 1. CALL TO ORDER, PLEDGE OF ALLEGIANCE AND MOMENT OF SILENCE Chairman Ryan called the Regular Meeting of the Board of Adjustment held on May 18, 2023, to order at 5:30 p.m. and led the Board and audience in the Pledge of Allegiance and Moment of Silence. 2. ROLLCALL Boardmembers Present: Chairman Paul Ryan: Vice Chairman Carol Perica; Boardmember Erik Hansen; Boardmember Jeremy Smith Boardmembers Absent: Nick Sehman Staff Present: Development Services Director John Wesley and Executive Assistant Paula Woodward 3. CALL TO THE PUBLIC None 4. CONSIDERATION AND POSSIBLE ACTION: Approval of the meeting minutes of the Board of Adjustment March 17, 2022. MOVED BY Vice Chairman Perica to approve the regular meeting minutes of the Board of Adjustment March 17, 2022, SECONDED BY Boardmember Hansen. Vote: 4 - 0 passed – Unanimously 5. CONSIDERATION AND POSSIBLE ACTION of Appointing a Chairman to the Board of Adjustment. MOVED BY Vice Chairman Perica to appoint Paul Ryan to Chairman to the Board of Adjustment. SECONDED BY Boardmember Hansen. Vote: 4 - 0 passed – Unanimously 6. CONSIDERATION AND POSSIBLE ACTION: Appointing a Vice Chairman to the Board of Adjustment. MOVED BY Chairman Ryan to appoint Carol Perica to Vice Chairman to the Board of Adjustment. SECONDED BY Boardmember Hansen. Vote: 4 - 0 passed – Unanimously 7. PUBLIC HEARING, CONSIDERATION, AND POSSIBLE ACTION: A request by Jay Schlum for a Variance to reduce the minimum front yard setback from 20 feet to approximately eight feet to allow the addition of a patio cover in the front setback area at 17114 E Fairway Ct. (APN# 176-10-099) in the R1-8 Single Family residential zoning district. (Case #VAR23-000002) The following residents provided written statements stating that they were in favor of the project: Board of Adjustment May 18, 2023 2 of 2 Joel & Joann Lupo James Andreae James Carlson Judith J Bauer Patti Soling Toni & Wynette Finocchio George Mitchell The following residents addressed the Board: Dick Bauer Krista Andreae James & Robin Carlson MOVED BY Chairman Ryan to continue agenda item # 7 to the next scheduled Board of Adjustment meeting, June 15, 2023. SECONDED BY Boardmember Smith. Vote: 4 - 0 passed – Unanimously 8. BOARD DISCUSSION/REQUEST FOR RESEARCH to staff. No action taken. 9. SUMMARY OF BOARD REQUESTS from Development Services Director. No action taken. 10. REPORT from Development Services Director. No action taken. 11. ADJOURNMENT Chairman Ryan adjourned the Regular meeting of the Fountain Hills Board of Adjustment held on May 18, 2023, at 6:56 p.m. BOARD OF ADJUSTMENT Chairman Paul Ryan ATTESTED 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 Board of Adjustment, Fountain Hills in the Town Hall Council Chambers on May 18, 2023. I further certify that the meeting was duly called and that a quorum was present. DATED this day of May 18, 2023. Paula Woodward, Executive Assistant TOWN OF FOUNTAIN HILLS Page 1 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 1 of 45 Post-Production File Town of Fountain Hills Fountain Hills Board of Adjustment May 18, 2023 Transcription Provided By: eScribers, LLC * * * * * Transcription is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings. * * * * * TOWN OF FOUNTAIN HILLS Page 2 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 2 of 45 RYAN: Welcome to the Board of Adjustment. We're going to jump right in and get started. The first thing is, I think the -- roll call, no. I think we just say the Pledge of Allegiance, right? To lead off? WOODWARD: Yes. RYAN: And then do the roll call? WOODWARD: Um-hum. RYAN: Okay. So if you all would rise for the Pledge of Allegiance, that'd be great. ALL: I pledge allegiance to the flag of the United States of America, and to the Republic for which it stands, one nation, under God, indivisible, with liberty and justice for all. RYAN: And let's take a moment of silence just to honor our local sheriff's department and the fire folks that keep us safe every day. [MOMENT OF SILENCE] RYAN: Thank you very much. So if -- can you call the roll for us, Paula? Thank you. WOODWARD: Chairman Ryan. RYAN: Here. WOODWARD: Vice chairman Perica. PERICA: Here. WOODWARD: Board member Hansen. HANSEN: Here. WOODWARD: Board member Smith. SMITH: Here. WOODWARD: And Nick Sehman is excused absence. RYAN: Okay. And then, if we can get a motion to approve the Board minutes from the last meeting? And a second, that'd be good. PERICA: I move to approve the minutes of the last meeting held on March 17. HANSEN: Second. RYAN: Thank you. And just get a voice vote on the approval of the minute. Aye? ALL: Aye. RYAN: Good. Thank you. And then, we have two appointments tonight. We have to do the -- chairman of the Board of Adjustment and the vice chair of the Board. So do I hear any nominations for the chairman of the Board of Adjustment? TOWN OF FOUNTAIN HILLS Page 3 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 3 of 45 PERICA: I move that Paul remain chairman of the Board of Adjustment for another year. RYAN: Thank you. PERICA: Paul Ryan. HANSEN: I'll second that. RYAN: Thank you. So again, should we do a roll call vote on those or just voice votes good? WOODWARD: Mr. Chairman, whatever you prefer, Chairman. RYAN: We'll do just a voice vote. So all in favor of Paul Ryan remaining as chair of the Board of Adjustment say aye. ALL: Aye. RYAN: And opposed, nay. WOODWARD: Four, zero. RYAN: All right. And then the next would be appointing a vice chair. I would nominate Carol Perica as the -- to remain as the vice chair. She's been an enormously valuable member of this panel for many years. And I appreciate you offering to do that again tonight when I asked. PERICA: Thank you. RYAN: You're welcome. So motion to appoint Carol as the vice chair. HANSEN: I second. RYAN: All right. And then, so we'll just have another voice vote, then. So all in favor is aye. ALL: Aye. RYAN: Opposed, nay. WOODWARD: Four, zero. RYAN: Thank you. I think that's all the administrative stuff that we have, correct? Is there any kind of Call to the Public we do early or do we do that after? WOODWARD: It would be a Call to the Public -- RYAN: Yes. WOODWARD: -- for anything that does not pertain to the -- RYAN: To the -- TOWN OF FOUNTAIN HILLS Page 4 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 4 of 45 WOODWARD: -- agenda item. RYAN: Okay. WOODWARD: And there are no submittals for that Call to the Public. RYAN: Okay. Super. Thank you. So let's get on to the hearing. And it's a request by Jay Schlum for a variance to reduce the minimum front yard setback on his home. John, would you kind of explain that for us? WESLEY: Yes, Chairman, I'll give you the background information on this particular request. The request involves a property located on Fairway. It is zoned R1-8. It's a 14,000 square foot lot. Has a standard R1 setbacks, front of 20 foot, seven foot sides, 25 foot rear. Allows 35 percent lot coverage. There's an existing home on the property with around 3,500 square foot on the roof currently on the property. The property owner has a front patio. And they enjoy using that front patio and are proposing to build a shade cover over that. Looks like it'd be a very attractive addition. It'd be very beneficial to the home. Unfortunately, it encroaches into the front setback. And so that's why we're here this evening, is to discuss that and whether or not to -- it meets the criteria outlined in the ordinance to allow for approval of that encroachment. So again, the illustration shows where that is. And you can see the red area is approximately where the cover would be. And the blue line through there is that setback. So you can see that it extends about 12 feet out into the front setback, leaving about 8 foot from the property line. So again, reviewing this property and the area, it's zoned R1-8 so that's a minimum -- I got an extra zero on there, don't I? It's 8,000 square foot -- there's a minimum lot size, this lot, it gives a little bit over 14,000 square feet. Lots in the area range from around 11 to 17,000 square feet. Minimal lot width is 80 feet. The subject lot is about 93 feet wide in the front. And gets wider a little bit as it goes back. It's one of the narrower lots in this development, but still fairly a good size. Again, it's allowed 35 percent total lot coverage on the roof, currently has about 25 percent lot coverage on this property. The grade on the property at high point is towards the northwest corner, slopes down towards the southeast corner. Overall, changes about 10 feet across the property. And in TOWN OF FOUNTAIN HILLS Page 5 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 5 of 45 front, is about a two foot drop. So as a -- Board's aware the ordinance lays out specific criteria that you need to review and make findings on in order to approve or deny a request. The first one is that there exists special circumstances or conditions of the land or building that might not apply to the properties, it would make it difficult to build. So again, this lot is similar to other lots in the area and exceeds the minimum requirements. There are no really significant topographic features to this lot that make it a challenge for development as compared to other properties in the area. And also, the next one is that the -- any special circumstances or conditions are preexisting and not created or self-imposed by the applicant. The area was platted in 1972. Initial home was built on this property in '76. In looking at the historic aerials, can see that in 2007, there was a remodeling of the home. The center portion there was torn out and replaced to get the configuration we have on the lot today. The next one is "The variance is necessary for the preservation of substantial property rights." And "Without the variance, the property cannot be used for purposes allowed in the district." Property has been built and used as a single family residence for almost 50 years. It's currently being used as a single family residence. The property size, as I mentioned, are similar to others in the area and exceed the minimums. There is area within the setbacks where additional shade covers on lot coverage could occur without the encroachment. But again, the place that is most advantageous on the property for the outdoor space is out in front. And again, it's been used that way, you can see in the aerials, for many years. And so that's the space that they are desiring to have the cover to meet their needs. And then, finally, that authorizing a variance will not be materially detrimental to persons in the area, adjacent property, and the neighbors. We have setbacks in order to maintain separations, visibility, safety issues, along that line. The encroachment might have -- could have some impact on neighbors. Use -- we don't see that it'd be substantially detrimental. In fact, we've got a number of neighbors who have informed us they support it. I think we've got some neighbors here this evening to speak to you to let you know of their support for this. So they obviously don't feel like there would be any impact to their TOWN OF FOUNTAIN HILLS Page 6 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 6 of 45 welfare. There is a provision in state law that the Board may not grant a variance if the special circumstances applicable to the property are self-imposed by the owner. So we need to keep that one in mind as you consider the findings. So here again, is just a list of the findings that you need to consider. So as you hear the discussion from the applicant this evening, and the neighbors, you can keep those in mind. I'll be glad to answer any questions that you have of me at this time. RYAN: All right. Thank you, John. So -- you're looking at me like I should know something I don't know. Okay. It -- there's actually a lot in that -- on that list but I want to first welcome all the members of the public and Mayor Schlum to this hearing. I really appreciate that, folks, when you come here and express your desires to do that. But I want to also instruct the folks that, as John just went through, there are certain fairly strict criteria on allowing variances. They're primarily four of them that he just went through. So the Board of Adjustment is here to actually -- and we've done this in the past, had some variances to those, but it's got to conform, essentially, to all four of those. There's got to be some kind of reason that -- property value or something that is unusual about this lot -- the slopage of the lot or positions. We have in the past done that, I think, to a multi-home residence the last hearing we had. So it's -- it's a tough task for the people up here. We're citizens, too. We all have homes and have great empathy for that, but I also just wanted to give you both sides of that. So we're here to listen to you. There is no time limit that we ever put on speakers here, unless there's -- I think we had a marijuana hearing once that ran a little bit long. Always an interesting topic for commercial things. But -- so those are kind of the rules of the -- of the game, if there are -- you can even call them rules. So we're open to hearing that. And then I guess the next thing we'd like to hear is on Jay's side, Mayor Schlum's side. Kind of the reasons they're asking for this, kind of -- probably understand a little of the variance rules. So does somebody want to come up and represent the petition? Thank you. Just say your name and then when you come on up and then we'll have a chat. TOWN OF FOUNTAIN HILLS Page 7 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 7 of 45 SCHLUM: Thank you Chair, Vice chair, Board, staff, John, Ms. Woodward, nice to see you. So Bart SHEA is doing the project so he put all the paperwork together, got that to the town. And he's been a great friend of ours, my wife, Denise, for 30 years here in Fountain Hills. And he's been nice enough to say he'd do the project. We want to do the project because we love our front patio. It's really our patio that's got some views and we've always had a front patio. Our addition that we did in that one overview kind of pushed the home more forward because that really the only direction to go because there's a pool in the back and we didn't want to do a second story. So in order to move it from 1,600 square feet to something larger, that was the only direction to go that we did. Prior to that, we had a front patio almost exactly the same as that, that had some lattice covering. So it had, like, a patio cover. And of course, that -- most of that had to go away. It will built in '73 originally, so it had a seven-and-a-half foot ceiling. It was very, very low. So now our new ceiling is 12 foot tall and it's much more modern. But we did have to go more out front. There's other homes in the area that seem to go even further than we would need to go. So we didn't necessarily know that was an issue when we put the patio up front. The patio's been there since 2008 in the same area that we're now just looking for a patio cover to go. It's not an addition of additional rooms. It's not a bedroom or an office or an enclosed space, it's just a roof covering. The main reason to do it is so we can use the patio more often and enjoy times with our neighbors, which we're blessed to have the greatest neighbors in the world. And I didn't pay them to support us, but I think they're all in support. In fact, I've got a little map here that shows all of our -- well, the only ones that we've talked to regularly, which are everybody right around us, they all are in favor. The folks on the corner, we just don't talk too very much but I'm sure if I talked to them, they'd be fine with it, too. But that's there. And then, I didn't see in the packet a copy of -- kind of the rendering of what this will do. I'll just -- I'll bring this up there and show you. Let you guys look at that. I didn't bring extra copies of that. RYAN: Thank you. SCHLUM: The main thing is, in Arizona, you need covering, you know. There's some TOWN OF FOUNTAIN HILLS Page 8 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 8 of 45 times when we can go out when there's little overcast or whatever and it's not too hot. But most of the time, even a southern exposure in the winter time, it's just a bit too intense. RYAN: Yeah. SCHLUM: Not only just for our guests that are on the patio, but for inside the house. We have great, huge, beautiful picture windows that face south. The one's that face east have a big, like, a solar screen screens on it. RYAN: Um-hum. SCHLUM: The one's in the front are probably well insulated but they still let a ton of sun in. Up until another month from now when the sun starts to move more northerly over our house, which will give the windows rest but not the patio. RYAN: Right. SCHLUM: So it's, you know, to make sure we're safe out there and can utilize it more often, and I know we'll all enjoy it. And I know most of the neighbors have submitted a card or will speak to themselves about how they feel directly. But I'll bring this up there and -- RYAN: Yes, please. SCHLUM: -- again, like I said before the meeting started, thanks for volunteering here in the greatest town in the world. SCHLUM: Here's that rendering of the -- RYAN: Super. SCHLUM: -- (indiscernible) -- a little map of our hood. And then part (indiscernible). I appreciate your guys for being here and to help us to understand this passage. SHEA: Thank you, Mr. Chairman and thank you Madam Vice Chair, members of the board. Paula, again, thanks for always being here for us. It's been a while since I've been in front of the Board of Adjustments in the Town of Fountain Hills, like, 8 years or so. But I think, Mr. Ryan, you were still there. RYAN: Yeah. SHEA: So -- RYAN: Thank God for that. SHEA: Yeah. TOWN OF FOUNTAIN HILLS Page 9 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 9 of 45 RYAN: I imagine the Board just being here, yeah. SHEA: So -- RYAN: Appreciate that. SHEA: -- what I do for a living, some are aware of, I kind of do this for a living. I don't do residential work, per se, but I do a lot of zoning entitlements. RYAN: Okay. SHEA: And I do a lot of variances. I've been successful in getting a 15, 18 percent variance on hillsides in Maricopa County by showing that there is actual need and by quoting absolutely the law and what it has to be. So a couple of things that -- that came through the staff report that are kind of an anomaly, and that's probably number one, when Arizona Revised Statues quoted for this, and it says, "You shall not" -- "Board adjustments may not," -- what's not listed inside the staff report is inside of that same statute, is the Board of Adjustments "shall" -- it -- it's what's required of the Board of Adjustments as you take your membership on this Board. And I can read the whole thing for you or I could read you the "shall" parts as well. Which I'm going -- "Hear and decide appeals for variances for the terms of the zoning ordinance only." Only. "If because of a special circumstance applicable to the property, including its size, shape, topography, location, or surroundings, the strict application of the zoning ordinance will deprive the property privileged owners, the property, the same classification in the same zoning district." In other words, any one item on that -- it's going to be able you to grant a zoning -- a variance on -- it doesn't have to be a combination of any two or any three or any four. It's any singular item on that. The -- the law is very specific. If it was all inclusive, it would have had a colon behind "including." And all of them would have been required to get there. And number three, on the -- there's been -- "Board of Adjustment shall" says, "reverse or affirm in whole or in part or modify the order, requirements and decisions of the zoning administrator." So it gives you the ability to -- if -- if you think that the Schlum's have a possibility of TOWN OF FOUNTAIN HILLS Page 10 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 10 of 45 being there and -- and being correct and there's precedence in the neighborhood, which there is in this case, buildings in the setbacks, then you're able to go ahead and say, well, this looks great. If we're going to give variance, but only on this corner of the setback. Or you need -- can you trim the corner back two feet. It gives you guys the options to do these things. That's why there's a Board of Adjustments on these process. So going through this process on it, as you come down the staff's report again, it even includes zoning B. I haven't been able to find the zoning ordinance inside of the Town of the Fountain Hills, but they come back they -- they call for an adjustment -- for the Board of Adjustment to do almost the same exact thing. Going through that process, staff then included on their reports -- so the variance inside of the, what they call the four complete for the ordinance, there's sections inside of an ordinance. Ordinances are to be written -- written and read on the whole, not an independent action, it's not in independent pieces and how they work and where they go. They're made and designed to give everyone the authority to do this. I mean, it's great -- the designation of a variance, that's what we're here -- that's what that is. We're varying from the strict application of the zoning ordinance. Not the strict application of the entire ordinance. This particular one, it's a strict application of just the setbacks on this chart. So inside of Jay's original submittal, if you look on the -- Don (ph.), can you pull the site plan back up? UNIDENTIFIED SPEAKER: Yes. SHEA: There's a couple of things that aren't exactly accurate, the way they've been depicted -- this one right here is fine. So on this site plan, you'll see that there's a large radius running around his driveway -- he lives in a cul-de-sac. And it's a curved cul-de- sac. RYAN: Um-um. SHEA: So its setback actually radiates into the narrow side of his slot -- his lot. It's not a -- it's not a consistent lot with everything else. Everything else should be a box. Well, everything on this street is not a box. It's a pie shaped. It's an oblong rectangle. It's -- it's all over the board on how it works. So that particular lot, you'll see at the front is very narrow and it widens out in the back. TOWN OF FOUNTAIN HILLS Page 11 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 11 of 45 Well, that's great. And John highlighted the fact, there's a ten-foot drop in the lot. Well, if you come off the lot, it's five feet in the back. And then there's house, then it's three feet in the front. There isn't anywhere really to put it, unless you want to push it up against the side, which we'd be back in here again looking for a variance on the side setbacks to get it back in. So it isn't really, like, you could plop it anywhere you wanted to on the house. So it does create some hardships because the lot is not square and box-like. It's rectangular and it's not actually even on the outside. And the topography makes it almost impossible to put it anywhere else on the lot and use it. You won't be able to get it in the house. You won't be able to drive the driveway. You'd have to -- if you're going to enjoy your patio, you'd have to walk out, around your poll, to the side of the house, or out the front door and around the house to enjoy a patio. Nobody's going to that. There's no cooking facilities or bathrooms or -- we just enjoy -- don't enjoy our lives that way. Lastly, so inside of the zoning ordinance it quantifies if, special circumstances and one- off viewing. We've got -- Dave, could you hand me those -- I'll pass this around. There's actually two other houses on his lot -- on his block that are within ten feet of the setbacks in the front. So precedence has been set, that the houses have been built in this neighborhood, in this district, inside of the setback. On it -- RYAN: The actual -- the actual property itself? The -- the -- SHEA: Yeah. RYAN: -- structure? SHEA: Yeah. The structures -- RYAN: And which addresses are those? SHEA: Be more than happy to give you the sites -- RYAN: Yeah. SHEA: I had one for six, so you want -- I need pages two and three -- RYAN: Thanks, Bart. SHEA: So if you look in the second page, it'll give you lot and block on it. And if you use the front page as categorizing it, it's the house -- I believe Jay said he didn't go visit TOWN OF FOUNTAIN HILLS Page 12 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 12 of 45 them. This one, right? SCHLUM: Yeah, on the corner. SHEA: On the corner there. And you'll notice on the driveway and the setback on that one, we're 10 foot, eight to the corner of the house. Again, it's in a radius. It's in a cul-de-sac. The lot is nonconforming. The zoning administrator at the time could have just granted this to go through. And on page 2, this is the house at the end of the cul-de-sac on the next block up. RYAN: So this -- back to this original one, that's on page 2 -- SHEA Um-hum. RYAN: -- the assessment number looks like 176-10-820; is that correct? SHEA: Yes. RYAN: Okay. And where is that on Fairway Court? SCHLUM: That's on that the next cul-de-sac on -- SHEA: The cul-de-sac up, it's just -- SCHLUM: -- the house that looks kind of down on to us. RYAN: Okay. So north of the -- SHEA: It's right there. You -- RYAN: -- north -- north of you, then. Okay. SCHLUM: Yup, exactly. RYAN: Okay. SHEA: I have the wrong house -- SCHLUM: North or more west in this one. RYAN: Right, got you. SHEA: The one I pointed out was 176-10-097. And that's setback is -- excuse me for a second. I have to put my glasses on. SCHLUM: So that's -- this is the one he's talking about now, is the one the corner -- RYAN: On the corner, I see it, uh-huh -- SHEA: It's seven foot, one inch . RYAN: And which corn -- hang on a second. SHEA: 176-10-097. RYAN: And which corner is -- I'm sorry -- TOWN OF FOUNTAIN HILLS Page 13 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 13 of 45 SHEA: Fairway, it's ending -- RYAN: -- right on the drive -- were you're on -- were the driveway is? SHEA: Yeah. Where the garage is encroaching on the driveway -- or on the setback. RYAN: Got you. I see it. Okay. All right. SHEA: [COUGHING] Allergies are killing me this year. RYAN: I know, I got the same problem. SHEA: So there's precedence in the neighborhood to allow -- to give enough cover to the Board to say, you know what, staff didn't realize this, it wasn't there. This is just a patio cover on an existing patio. There are other extenuating circumstances as far as it is. And remember, you only have to adhere to one on that -- that item. Not all for issues need to be controlled on this. It isn't -- it isn't an everything has to go or nothing goes on it, so. RYAN: Okay. We're going to ask John about the -- come up and explain that -- SHEA: Okay. RYAN: -- interpretation to us. But I appreciate that part. SHEA: Absolutely. If you have any questions, I'll be here for at least another two weeks. RYAN: All right. PERICA: I have a question. SHEA: Yes, ma'am. PERICA: What is the material that the patio cover will be -- will be made -- constructed of? SHEA: It'll match the house exactly. It'll be a stucco. It'll be a wooden stucco structure with a covered roof. And I think you have a photo as part of the -- UNIDENTIFIED SPEAKER: [Indiscernible]. SHEA: -- so it'll -- it'll look exactly -- there's a rendering -- RYAN: Yeah, we have it. We have it. PERICA: I see. SCHLUM: That's what I meant to mention that -- is that the addition -- there's currently a covered patio right at our front door, which is on the west side of the house. RYAN: Um-hum. SCHLUM: And it's basically continuing that patio cover out to the front. So it's the TOWN OF FOUNTAIN HILLS Page 14 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 14 of 45 same. So it sits, elevation-wise, quite a bit below the brook line, which is quite tall where the addition was done with the taller ceilings. And that it would catch the water from that roof and then come down onto that patio and carry the water off. So it kind of continues what's already there but it would look the same as -- as it does currently today. PERICA: Thank you. SCHLUM: Yup. Thanks. RYAN: So just to -- I'm -- I don't want to interrupt -- well, you folks, the rest of you folks that want to speak, come up and then we'll get to that portion and if there are any other comments. But I do want to get an interpretation on Bart's really good point about the four variance criteria that we have to judge it on. I think it's a good point and I think we need to discuss it. So John, do you have any comments on what Bart's saying because the instructions that Boards get is, you know, you're basically is the reserve of that, Bart, you probably know that, that you have to comply with all, basically four, you have to not violate, but you have to somehow solve a problem in encroaching all four of these variance criteria rather than one. Bart's case is, as long as you can prove one, it's been -- is something different about your lot that allows you to not conform to that specific variance, then you've got a case. So help us all a little bit. And I -- this is a bit of a loaded question. You and I were talking about this before the meeting. Where is that in -- in the rules of variance, where is that part that says you must conform to all four? WESLEY: Okay. So Chairman, Commit -- Board members, Section 2.07 B of the Town Code is another ordinance deals with variances. In number one, in that list, it's the same section I believe that I heard Mr. SHEA talking about. And I do agree with that list that says, if -- "because of special circumstances applicable to the property, including its size, shape, topography, location, or surroundings." So any one of those, it doesn't have to -- it's not all of them, so you can kind of pick and choose there a little bit. And so it gives some flexibility there. If in applying those in the strict application of the code, you know, a variance can be considered. But that's -- that in and of itself is just one of the four criteria that we had here. So I think there may be a little bit of a difference in that. When we list these criteria, findings. TOWN OF FOUNTAIN HILLS Page 15 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 15 of 45 RYAN: Yup. WESLEY: So that's the first one. And you don't have to meet all of those, it's just -- just one of those. But then the -- it goes on in here. The wording is a little bit different because it's a little bit convoluted in the ordinance. So just as a matter of simplicity, the four have been restated the way they are in the report. But going on, it says -- I got to find these again. "The granting of variance shall not constitute granting any special privilege inconsistent with limitations upon other properties." So there again, that's a separate criteria from the first one. And -- and so the Board has to -- it says, "shall not," in there so that there is a strict consideration. Going on down to number three, "Variance shall not be granted by the Board unless alleged hardship" -- causes a -- "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 action of the applicant." So again, that's a strict -- the Board shall find that in order to -- to grant the variance. And "In granting a variance, the Board shall" again, " impose the conditions -- coming back to something Mr. SHEA said. It's really not necessarily an all or nothing. You could come back and say, well, we don't like 12-foot encroachment but we are okay with the 10-foot encroach, or an eight-foot encroachment. So you'd have that flexibility. If you think there's something between, that -- that could work. That would certainly be acceptable. Let's see, there's one more I want to highlight. No variance -- this is number five on the list. "No nonconforming use or violations of this section with respect to neighboring lands, structures, or buildings in the same zoning district, and no permitted use of lands, structure, or buildings in other zoning districts shall be considered grounds for granting a variance." So I did some look around the immediate neighborhood. I didn't notice any other structures that -- that didn't meet the setback. But apparently there are some that I didn't see. But this tells us those -- those by themselves aren't necessarily no reason. RYAN: This -- just for my interpretation, that item 5 in this -- in this Procedures Statute is, "No nonconforming use or violations of this ordinance with respect to neighboring TOWN OF FOUNTAIN HILLS Page 16 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 16 of 45 lands, structures, or buildings" -- "and no permitted use of lands, structures, or buildings in other in zoning districts, shall be considered grounds for granting a variance" So you're saying, just in simplistic terms for my simplistic little mind, when somebody is four feet or eight feet from the setback line in another house, that's not justification to grant that variance in and of itself. WESLEY: In and of itself, correct. RYAN: Right. WESLEY: Although I can see where it does provide some weight for consideration. RYAN: What you're basically saying is, these are literally worded but there is some room for us, given other circumstances in general, looks of this fairly small cul-de-sac. That if there are other things that are not exactly 100 percent ordinance, there's some wiggle room to move within that scope, okay -- WESLEY: Sure. RYAN: -- got you. WESLEY: Okay. RYAN: That's an interesting -- Bart, you've -- you're a troublemaker, that's for sure. But I'm the same troublemaker, you are -- so I get -- I get your point. And on -- we were just discussing this before the meeting -- it's kind of interesting because John and I were talking about in the -- in the State Statute -- SHEA: Correct. RYAN: -- there is no direction I've seen, and I've read it even a day ago when I was preparing, that it says you must have complete, specific conformance to the four basic rules -- SHEA: Right. RYAN: -- you are correct, it doesn't say that in the law. So now we're down to the wording interpretation, whoever wrote this at the legislature, and then Fountain Hills folks amending it essentially with a few more rules. SHEA: Yes. RYAN: That is an interpretive piece of legislation. But when you hear words, like -- in our case, when you hear words like, "it shall" do this, because the instructions that are most important are given are -- I'll give you an example, "Do any special circumstances TOWN OF FOUNTAIN HILLS Page 17 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 17 of 45 or conditions regarding the land, building, or use referred to in the application which does not apply to other properties in the district." Well, you're pointing out there are a couple of other properties that don't -- SHEA: Right. RYAN: -- conform to that -- that's -- that's a fair point. Second one, and I'm just going to go through these, if you guys don't mind, with the audience and us because I think they're valid to talk about. All right. "Are the above special circumstances or condition preexisting, are they self- created or self-imposed by the owner or the applicant." That is a good question. Answer that for me a little bit because -- SHEA: So -- RYAN: -- since -- since Jay extended the house, and I've -- SHEA: Correct. RYAN: -- I believe that uploaded so I can see it at my advanced age. But it looks to me like, you know, even out to the exterior end of that addition is -- is something you could do without getting any kind of a setback at all because the house is out to a certain spot, right? SHEA: Correct. RYAN: And it looks like maybe it's 22 feet when I did a measurement, I used to be -- WESLEY: It -- it -- it's still -- RYAN: -- I used to be an appraiser so I -- SHEA: -- because of the radius on it because the -- RYAN: -- yeah. SHEA: -- the pie shape of the lot, it kind of narrows -- RYAN: It's not 100 percent -- SHEA: -- yeah. RYAN: -- straight across, right. So there's almost like a little wiggle room there that you could almost build a nine- or 10-foot patio to that house. I mean, that's kind of the -- what I looked at is -- as an alternative to it. So it's -- it -- that part to me is self-imposed, is a little heavy, but is something that, you know, was considered when they -- could have been considered when they actually did TOWN OF FOUNTAIN HILLS Page 18 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 18 of 45 the extension. SHEA: Right. RYAN: The third one is, "The variance necessary for the preservation of substantial property rights. Without a variance, can the property be used for purposes otherwise allowed in the district." Well, again, allowed in the district would conform back to these folks who are -- you're -- SHEA: Right. RYAN: -- closer than 20 feet to the property -- SHEA: Right. RYAN: -- line. And the last one they were directed to evaluate is, "Will the authorizing of the variance be materially detrimental to persons residing or working in the vicinity, to adjacent property, or to the neighborhood, or the public welfare." Well, I think the whole block is here to say that -- SHEA: The whole block -- RYAN: -- to say that, no, it's not. So I think I -- it -- there is a case that I think it's a very valid one that you're -- I mean, this is just my opinion. So I want the other folks to chime in. I think it's very valid in this sense. And John kind of reiterated, there's some wiggle room to see if we can get to a point where that's probably a -- a reasonable decision on the Board's part. And I think Carol would back me up over the decade we've been here. We do that -- we do that consideration of everybody. And we're very public about it. We're not strict constructionists of the law. So that's why I wanted John's opinion on -- there is a little wiggle room, which I -- I appreciate your saying that, John, to give us a little room. And then, Bart, you're interpretation -- I'm not 100 percent convinced, personally, that you just need to have one variance that you're conforming to as opposed to all four. I think you need to go through all four. SHEA: I appreciate that and -- RYAN: Okay. SHEA: -- it might take some time to do a ruling on that. I appreciate that, too. RYAN: Right. SHEA: I can tell you in other municipalities -- TOWN OF FOUNTAIN HILLS Page 19 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 19 of 45 RYAN: Yeah. SHEA: -- other Boards of Adjustments, it's probably a 70/30 on it. Most -- the 70 percent go with the single issue on the variance. RYAN: Yeah. SHEA: I have had -- City of Glendale is a good example. RYAN: Yeah. SHEA: And I -- I get along well with the City of Glendale, but the one variance I had there, they had five criteria that didn't make any sense. RYAN: Right. SHEA: But they granted it anyway. RYAN: Yeah. There's a lot of shall-ing and if-ing and will -- on these legal terms, right? But on so, I have a foundation where the deadline states your last -- I get -- I get that it can be interpreted -- SHEA: Thank you for listening, I appreciate it. RYAN: -- your welcome. No, no, I think it's a very valid point. Well, brought up. And I think we need to discuss it a little bit in public. And so, Carol, what do you think? PERICA: Well, I don't think anybody's going to like what I have to say. RYAN: All right. PERICA: But I -- in the past, we've always gone with the criteria that -- that it has to adhere to all four -- RYAN: Um-hum. PERICA: -- and I'm just reluctant to change that for this, although I think it's beautiful. And I think it would be wonderful. It doesn't matter what I care or what I think. I think we should adhere to what we have adhered to in the past. And I've heard that there's wiggle room and different municipalities do this and different municipalities do that. Well, I've been on the Scottsdale Board of Adjustments for many years also, before I moved to Fountain Hills. And -- thank you. I talk loud anyway -- RYAN: I shouldn't have done that -- PERICA: -- I don't think anybody -- RYAN: -- sorry. TOWN OF FOUNTAIN HILLS Page 20 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 20 of 45 PERICA: I don't think -- I think any -- everybody can hear me. My point is, we have never really adhered to whatever municipalities do. We have always adhered to this -- this finding, the -- that it has to adhere to all four. And I'm just reluctant to change that at this point, even though I feel in my heart, it would be very good thing to do. It would -- it would enhance the property and the neighborhood, I agree. But we're not really talking about what I think. What -- what -- we've always talked about in the past is, does it adhere to what we've been doing for all these years in Fountain Hills, not in Glendale or Phoenix or anywhere else. In Fountain Hills, this is what we've been doing. And if we don't do it the same way we've always been doing it, then something needs to be changed. Would everyone agree -- RYAN: That's fair. That's fair. I would agree that that's, again, I -- I -- the audience is -- PERICA: May I -- I'd like to say something else. RYAN: Sure. PERICA: We have had a couple cases in here that were very heart rendering, truly, that, you know, you -- you really, really want to give the person that because they deserve it because I makes sense. And -- and we've refused it because it did not make this criteria. So is this the point where we want to change what we've been doing, Paul? RYAN: If -- if the strict wording of the rules as I just read them, is incorrect, then I would say, yeah. Because we're not -- we're not conforming to what we should be doing. The problem I'm having is -- and I think we've been a little more liberal than just adhering to every little, you know, we've talked -- PERICA: I -- I would agree -- RYAN: -- about it, worked out some of these -- PERICA: --yes. RYAN: -- variances with other folks where half of them were and half of them weren't. So I think we've been very fair about that. And John knows our propensity to question each one of these to see -- make sure that they're, if there is room, we do it. But John's interpretation tonight interested me. Because he's really very knowledgeable about this. And -- and really pretty fair about it. And I -- I was interested in him saying wiggle room, because that is sort of what we have done in the past. When we listen to everybody's case. And if there is something you can adhere to, one of the setbacks -- we TOWN OF FOUNTAIN HILLS Page 21 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 21 of 45 set back a few feet about two years ago for that same reason. I think if it's a reasonable thing to question each of these in their own validity, number one, given the interpretation I'm hearing tonight, which could easily be true. So I think, in agreement with you 1,000 percent, that given these very strict instructions, I think we've been more than liberal in these strict instructions. But I'm questioning the strict instructions and specially [sic], you got to meet all four. You got to supersede all four. That's the one that bothers me the most. Is that if you have the wiggle room on even one of them, you haven't met -- you haven't had a strict appliance of all four criteria to this case. And that -- that is a change. And I don't know that I'd -- I doubt, Bart, what you're saying. I almost want to take a little bit of a legal look, like I was talking about where in the law does it say, you must, as a Board of Adjustment, comply to all four of these in strict construction? It -- I can't find it. Hopefully, you found it because it makes this a lot cleaner. But it -- but that's just my own -- I agree with you in the instructions were given. I'm not sure that the instructions we were given are that strict. That's the only thing that bothers me. PERICA: If -- I hate to be the bad guy here but if the instructions are erroneous, then let's get them changed before our next Board of Adjustment because right now I think we're in a place where we shouldn't be. RYAN: Well, I -- I think we can -- we can be there as long as we start getting comfortable that they aren't there if -- if John says, for instance, you do have wiggle room in each of these, that's not strict construction. Because there isn't -- there isn't the word wiggle room in here that I see -- anyway, John go ahead, inform us. WESLEY: Chair and -- I'm not sure if this microphone is on, actually. But Chair, Vice chair, I -- I share some of your thoughts. This looks like it could be a really nice -- did it come on now? Very nice addition to the house and the neighborhood, but we've got the criteria that are giving you some challenge in being able to actually approve it. I guess I want to maybe clarify what I said before. So with what Mr. SHEA started with in that list of items that lead up to that first criteria, there were the commas and the ors. So it's in that one, I agree. You got some wiggle room, you don't have to meet all of TOWN OF FOUNTAIN HILLS Page 22 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 22 of 45 those that are in that list. RYAN: Yeah. WESLEY: Just, you know, some of them. So that's okay. But beyond that, with each of these criterias [sic], each one by itself is a "shall." And so you do need to consider each of the four criteria that are listed and make a finding with regard to all of the criteria. If you can't find that -- again, but there is no place here that says you have to meet all four, specifically, but you have to meet each one individually. And so that comes back to, I think, the same thing. RYAN: Well, at the bottom of this sheet, what it -- here's what it says, "All four criteria must" -- capital Must -- "be found to be met in order for a zoning variance to be granted." That sounds pretty literal to me. Yes, it's a -- when you capitalize the word "Must," it says, "you Must conform" or you must have the criteria met in all four cases. And yet, and I'm not at disagreement what you just said about one of them, you know, and then three don't. But Bart's interpretation of the same law is that only one of them has to be met to get your variance. And my questions, and I think Carol's question is -- and I'll repeat it, and I'm almost about ready to -- to say that we have a second meeting on this until we find out in State law, where does it say, you must meet all four? Or where in State law does it say you can meet any one of these and you get the variance? It's unclear, John. WESLEY: Right. RYAN: There is no -- there's -- there's this stuff that says you shall do this and you shall do that, that isn't -- shall isn't necessarily obligatory that I understand it, that you must. This -- this says you must. Right? The Fountain Hills form. So I'm -- I'm questioning it, I -- it says, you know, sorry, Jay, no offense, but it doesn't kind of matter what the case is. What matters is what Carol's bringing up. WESLEY: Right. RYAN: We need to understand the rules of this body, which we've always interpreted, essentially, executed these four criteria as a joint, must meet all four. WESLEY: Right. RYAN: We have wiggle roomed, part of that, if the lot allowed it or if the law allowed it, or compromise in the middle of this -- with Bob Rogers (ph.) there, we used to -- some of TOWN OF FOUNTAIN HILLS Page 23 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 23 of 45 the commercials even make a compromise. Because it wasn't clear where the boundaries were. It wasn't clear that it wasn't being violated in the neighborhood. WESLEY: So again, the Chair -- RYAN: That's where my dilemma is. WESLEY: -- right. And so Chair, you -- typically in application of an ordinance, if it's a may or a should, you've got wiggle room. If it's a shall -- RYAN: Yeah. WESLEY: -- it's a shall, it means that you must. Shall and must are the same thing. And so these shalls are in here. And there are the shalls in each one independently needs to be -- be verified, which gets you to the cumulative must at the end, I guess. Before -- again, some wiggle room in, as I mentioned before, if you're finding is that, you know, a 12-foot encroachment, you know, violates this because it doesn't -- you can't find that there's an issue there but -- but that goes away at eight feet, that's where I think you have the wiggle room, to prove something that's maybe not exactly what they asked for. RYAN: Say that again. WESLEY: I wish I had a more concrete example. RYAN: Yeah. WESLEY: But if you can't make findings that a 12-foot encroachment is necessary, but you could make findings that a 8-foot encroachment -- RYAN: I see. WESLEY: -- works. And I think that's where you have some wiggle room. RYAN: Yeah, got you. WESLEY: But you're still applying the same criteria. RYAN: Okay. Bart, you're going to say some -- SHEA: Can you show me where (indiscernible) is? Is that the zoning ordinance? RYAN: Yes. SHEA: So hear the appeal -- "Shall hear the appeal. Shall not be" -- RYAN: (Indiscernible) -- constitute a special (indiscernible)? SHEA: Yeah, but it doesn't say shall not adhere to -- SCHLUM: I know -- I know some of the neighbors would like to say something. I just won't want them to be forgotten. TOWN OF FOUNTAIN HILLS Page 24 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 24 of 45 SHEA: Doesn't say it shall be (indiscernible) -- PERICA: Paul. Paul. Can we call some of the neighbors up for their comments -- RYAN: (Indiscernible) -- [CROSS TALK] PERICA: He just said, Jay just said some of them want to comment. RYAN: So I -- Carol reminded me is -- are there anybody in the, amongst the neighbors that would like to speak given this little lively discussion we're having here? WOODWARD: Chairman, chairman. RYAN: Yeah. WOODWARD: I have "Call to Public" cards. RYAN: Okay. WOODWARD: Did you want those? RYAN: That'd be great. WOODWARD: Okay. RYAN: Yeah, perfect. WOODWARD: So there were -- RYAN: Thank you. WOODWARD: -- there were seven -- seven written statements and two speaker cards -- RYAN: Okay. WOODWARD: -- so the written statements are, I'll read those quickly here. From George Mitchell -- well, first of all, let's -- the written statements in favor of the project, of the variance, is James Carlson (ph.), Joel and Joann Lutho (ph.), James Andreae and Judith Bauer. And then we have Mr. Mitchell, George Mitchell wrote, excuse me, he's writing in support of the variance request filed by Jay and Denise Schlum. "The proposed patio cover design is appealing and will be aesthetic enhancement to the neighborhood. The functional value to the Schlum's and the many neighbors who gather on their patio will be substantial. The lack of shelter from the sun is a significant limiting factor in the use of the current patio." And then a submittal from Tony and Lynette Finocchio And they write, "We live at 17109 Fairway Court, across the street from the Schlum's. We are in favor of the patio TOWN OF FOUNTAIN HILLS Page 25 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 25 of 45 covering being approved. We spend a lot of time at the Schlum's. Our times on the patio now is limited due to the southern exposure to the sun. The patio cover will provide more time together and enjoy our neighbors without too much exposure to the hot sun." Thank you, Mr. and Mrs. Finocchio. And then Patty -- I think it's Soling, writes that she "lives two doors up from the Schlum home here on Fairway Court. She's in favor of the patio covering being approved to cover the existing patio. We spend time regularly with the Schum's on their patio. It's very neighborly. Most times our time on the patio is limited due the southern orientation and no current shaded areas. The patio will provide greater opportunity to gather and enjoy our neighbors. The proposed patio cover will nicely match the existing style of the home and will lower -- and will be lower than current roof lines. The cover will add value to the neighborhood and provide much needed cover to protect us from the intense Arizona sunshine." Speaker cards in order of appearance. I have Mr. Dick Bauer (ph.), and then a Krista Andreae. Mr. Dick Bauer, please come to the podium. Thank you. BAUER: I don't know why I don't get invited to all those parties at the Schlum's. [LAUGHTER] BAUER: We're -- thank you for hearing us. We're neighbors of the Schlum's. We're aware of the condition. Their house faces south. It's a very short street. There's, like, five houses on this cul-de-sac. It's a mature neighborhood. The 20-feet setback on this radius, I have the same thing on my house. I've got 100 in the front and 156 on the back. Since in '08, a variance was allowed to put the porch in the front of the house. And they have since found that the -- the sun -- the house doesn't shade that -- that patio very well. And it's nearly impossible for six months of the year to use the patio just because the sun is so brutal. If you look at the review of findings here, and you look at each one of these situations, and you -- you're trying to find that all four of them do or don't comply, it -- it seems to me that the circumstances here, the Finocchio's live on the southside of the street and face north. They're the only house that's directly across from this patio. They're in favor of this. This is a mature neighborhood. The house has been upgraded. It adds value to the neighborhood and to Fountain Hills. And I think that's one thing that you guys should be TOWN OF FOUNTAIN HILLS Page 26 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 26 of 45 considering is, is it going to add amenities to our neighborhood? I mean, the reason we live here is this is such a great place to live. And so I think criteria one is met with that. The preexisting condition is the south-facing sun. Is it necessary for the preservation of the property? I know the Schlum's hired an architect to make this patio cover aesthetically pleasing and to enhance the value of the house and thus the value of the neighborhood. So it -- it seems to be a win-win all the way around. And on point four of the Review of Findings that it's not materially detrimental. In a way, they allowed the building of a short wall for a level patio on the front of this house. And now, six months out of the year it's untenable to be out there in the sun. This patio cover I -- I thought was extremely well done. It matches the house and I think it would enhance the property and the neighborhood. So I -- I thank you for your times. RYAN: Thank you very much. PERICA: I have a -- RYAN: Is that -- we have a question for you -- sorry. PERICA: No, no, not for you, I'm sorry. For Mr. Schlum. I understand that, if I've read my -- my material correctly, this -- this property has been there with the building on it for about 50 years. SCHLUM: Since '73. PERICA: And you've -- you've occupied it for the past, what, 14 or so? SCHLUM: 2001. So 22 years. PERICA: 22 years, okay. Why is it that you're just now after 22 years applying for a patio cover? I mean, you've lived with it for all those years. I'm curious. SCHLUM: So for -- initially, we did have patio cover, before the addition. The addition went out front and then, so we kept kind of the same size patio, obviously, it's a little closer to the road. And then the patio was built there with kind of a three-foot wall to -- kind of like a little bit of a retaining wall to hold up the patio. And then it's all pavers there. I think the dining room sticks out a little bit further. I think we expected to get more relief from the sun with that. And frankly, just we didn't get to asking to -- we -- we've TOWN OF FOUNTAIN HILLS Page 27 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 27 of 45 brainstormed a million different ways to get shade cover -- PERICA: Okay. SCHLUM: -- and this seemed like the best solution. PERICA: And I -- I appreciate the fact that you -- you're coming before the Board of Adjustment because someone mentioned that there were others done in the area. And it's possible, it's most likely they were done without becoming -- without approval of the Building Department or the Board of Adjustment. WESLEY: Or before we were a town, frankly. Some of those are older homes before -- PERICA: Oh, before -- WESLEY: -- before '89. PERICA: -- oh, okay. It's before all the zoning. My last question is, I think this was answered but refresh my memory, please, why can you not use the back? You have a swimming pool in the back and is there not enough room for -- for a patio? SCHLUM: There is a patio there, it's also uncovered. It's just we don't use that very often because more of our gatherings are in the front with our neighbors rather than going through the house -- PERICA: Through the house -- SCHLUM: -- to the back. PERICA: -- and you can't go to the side? You'd have to go through house -- SCHLUM: You can go all the way around through the garages and around -- PERICA: Okay. SCHLUM: -- it's just not -- PERICA: All right. SCHLUM: -- we just don't do it. I mean, there is -- PERICA: I -- I understand. SCHLUM: -- there is some more shade back there in the later afternoon just because of the building height and the proximity to where you would sit. But in the front, we don't have that benefit. PERICA: Thank you. SCHLUM: Yup, thanks. PERICA: Paul, what do you think? TOWN OF FOUNTAIN HILLS Page 28 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 28 of 45 WOODWARD: I'm sorry, Krista. ANDREAE: I have to say that usually sit in Paula's position -- [LAUGHTER] ANDREAE: -- at the school board. [LAUGHTER] ANDREAE: And I'm not very comfortable coming up and standing here speaking publicly but I have my good support team back here for me -- [LAUGHTER] ANDREAE: -- so bear with me -- RYAN: No, no. ANDREAE: -- as I work through this. RYAN: I get it. ANDREAE: I'm so grateful I don't have to speak into a microphone in this -- in this courtroom but, anyway, thank you so much for giving me the opportunity to speak on the variance at the Schlum's property. Addressing the desires for the covered patio starts with the phrase that Jay has claimed for Desert Canyon, the greatest neighborhood in the world. Which, by the way, is located in the greatest town in the world. In our little section of Desert Canyon, we all have beautiful homes. Some small, some large. But what we all have in common is the pride we take in our properties and in our neighborhood. The Schlum's are no exception to that. And with the addition of the patio cover, it would not only increase the value of their home but the surrounding properties owned by all of us in the room. Selfishly speaking, this project would allow the neighbors more time on the Schlum's patio. As you can tell, we spend a lot of time out there. We do spend a lot of time on all of our patios, but they actually having amazing views of Four Peaks and Red Mountain. So as it would eliminate the direct exposure to the sun when -- which circles their patio area throughout the day, including late afternoon and early evening. Now -- now to the facts. Now, when I get to the facts, I'm going to tell you that these are based on my layman's interpretation of the facts. TOWN OF FOUNTAIN HILLS Page 29 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 29 of 45 RYAN: That's fine. ANDREAE: You guys have gotten into a lot of legalese that mine may not make sense now, but I'll go ahead and share them with you anyway. The way I interpret it, this is simply an addition of a patio cover that will conform to the existing architecture of the home. It will have the roof that is lower than the existing roof line and will be open all sides. The variance, in my interpretation, to decrease the setback in front of the home was approved with the remodel and putting in the front patio and garden wall in 2008. The patio cover is not going to change the setback of the land. I can't speak for if that makes a difference for the structure itself. It also does not leave the front elevation of the home without the space for proper landscaping, which was noted in the findings. The other areas on the property that provide opportunities for covered-up door space -- and Ms. Perica, I think will answer your question -- are in the back of the home, which the view from behind there is of the house behind them. Not our stunning views of our local mountains. In number four, the town's findings, it states "That setbacks are established and applied consistently to maintain separation between structure, provide for visibility and landscaping along a street, and to maintain a uniform street appearance. And that by allowing the patio cover, it will encroach into the required setback and impact neighbors' views." Let me remind you, the setback in my opinion, was already approved in 2008. And no views will be obstructed by the addition of the patio cover to the -- on the Schlum's property. The neighbors sitting here can attest to that. The home that was recently built right next to me does obstruct our views. And the reason it does is because it was allowed to be elevated so high on the lot that the existing wall between multiple properties went from five feet to under two feet. This then required a variance that was approved -- I should -- I should stop and say, I never got a letter on a variance request. So maybe the builder did not -- not request one. But that was approved to raise the wall to a towering nine feet. Myself and one of my other neighbors in the room have a very large wall because they had a pool put in. And so everything was accommodated for this new build. Nobody thought about the fact that it TOWN OF FOUNTAIN HILLS Page 30 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 30 of 45 was obstructing, even my little, you know, miniscule view that I had. Anyway, this clearly goes against ARS 9-462-06 H2 that states, "A Board of Adjustment may not grant a variance of a special circumstance applicable to the property or self- imposed by the property owner." Putting a pool and elevating that property line was clearly self-imposed by that property owner. PERICA: That did not come before the Board of Adjustment. ANDREAE: I -- I suspect. I thought about that after I was writing this because I never did get a letter to come to one of these meetings. I never even got any -- we never even got information that they were allowed to build the property line -- or the elevation of the lot so high that it would cause a change in the wall -- RYAN: When -- when was that? When did that happen? Couple -- recent -- ANDREAE: Two years ago. RYAN: Two years ago. ANDREAE: Two years ago, yeah. And I mean, it's a monstrosity. I could go on and on about that house but I won't. RYAN: And the property is, in comparison to where the Schlum's house is, where is it? ANDREAE: It's -- so I -- the -- the house that they were showing you -- RYAN: Yeah. ANDREAE: -- that encroaches on the setback already -- RYAN: Yeah, yeah. ANDREAE: -- on the corner. RYAN: Yeah. ANDREAE: I am directly across from that. RYAN: Okay. ANDREAE: So I am at the start of the cul-de-sac. RYAN: Okay. ANDREAE: This house is to the left of me. RYAN: Okay. ANDREAE: And I know, you know, from the Schlum -- RYAN: It's in the same cul-de-sac? TOWN OF FOUNTAIN HILLS Page 31 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 31 of 45 ANDREAE: It is, yeah -- RYAN: Okay. ANDREAE: -- yeah. Anyway, so in comparison, the Schlum's addition of a patio cover over an existing, approved patio has no effect to the surrounding neighbors' views. In conclusion, like the -- all the others in the room tonight, I urge you to approve the patio cover of the Schlum's home. And I really appreciate the opportunity to speak in front of you. RYAN: Thank you. Thank you very much. You did really well, by the way. ANDREAE: Thanks. [APPLAUSE] ANDREAE: [Indiscernible). [LAUGHTER] J. CARLSON: Mr. Chairman. RYAN: Yes, sir, come on up. UNIDENTIFIED SPEAKER: I'll put it down a little bit lower. RYAN: There you go. R. CARLSON: Thank you for letting us speak. J. CARLSON: Yes, good evening Committee members. My name is James Carlson, this is my wife Robin. And we're -- we reside at 17106 East Fairway Court. We're right next door to the Schlum's. RYAN: Um-hum. J. CARLSON: We have been in Fountain Hills for over 25 years and are neighbors to the Schlum family for over 20 years. In regards to Agenda Item Number VAR 2023-002, we have seen the illustration for the proposed patio addition and we are in favor of a new structure. As neighbors, we agree that will not only be a beautiful addition to that front elevation of their home, but it also be beneficial to cover the Schlum's window exposure to the eastern, southern, and western sun exposure, which has, obviously been repeated this evening. Obviously, the Schlum's frequently use the front area of their home for entertaining TOWN OF FOUNTAIN HILLS Page 32 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 32 of 45 family and guests. And having this addition, it'll enable them to entertain during the hot summer months as well. More importantly, as a neighbor, this new structure will not have any effect on our current view of the natural scenery from our home. We look forward to enjoying this new patio structure with them when it's completed. Thank you. RYAN: Thank you. R. CARLSON: And I just have one thing to -- RYAN: Sure. R. CARLSON: -- add to it. I just think, I'm a teacher, and so what I see is, when you follow the rules, you know, and go through that, you know, because he's following the rules and going through it and we're all -- really think it would be -- the -- the patio is there. RYAN: Yeah. R. CARLSON: So to have the cover would be awesome there. RYAN: Yeah. R. CARLSON: And I just think, you know, he's following the rules. There needs to be a change to that because it's literally a shade structure. Helps with skin -- being, you know, away from the sun, which is not good for you. And personally, me going through something like that, and I have some personal issues that -- health issues, and I just think that something like this should be changed because it's just, honestly, to be following the rules, and he's going through all the right steps. Everybody approves for it other than all these other people that do stuff and they get what they want and it's not following the steps and he is following the steps. And I really, really think that that should be benefit to everyone -- RYAN: Yeah. R. CARLSON: -- and be rewarded. RYAN: Yup. R. CARLSON: So thank you. RYAN: It's a very realistic view. I thank you very much. J. CARLSON: Thank you very much. RYAN: You're welcome. Thank you. We needed to hear that, too. Is there anyone else, TOWN OF FOUNTAIN HILLS Page 33 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 33 of 45 Paula, have the card? WOODWARD: No, Chairman. RYAN: Okay. Anybody in the audience that would like to say anything more? First off, I want to thank you. I think Carol did an eloquent job of that earlier -- coming up and expressing your opinions. They are extremely valid. They're extremely human. They're neighborly. They're -- they're unusually eloquent. And in this day and age, it's really refreshing to hear civil discussion amongst human beings. So I -- I really applaud you for that. Our Board is made up of very civil people. So we really, more than you can understand, appreciate your -- your eloquence in doing this. And same for John, as eloquent as you are, John. I think -- I appreciate that a lot. I think the issues before this have a lot to do with the law. Some of the things I've shared with you, the forms we get, what we evaluate. I think some of the things that Bart said as far as the rules of the game, if they -- if you look at that, the variances and what's allowed or not allowed are pretty strict on these forms. They don't talk about, you know, health conditions. They don't -- they talk about -- the effort is to try to make it fair for everybody on the block. I mean, that was -- tried a one size fits all law. And that's what laws sometimes run into is it doesn't always conform to reality. I think because -- and I'm just going to propose this up front. I think the one thing that is agonizing for me, I -- I know -- I think it is for Carol and I think it is for Erik, I haven't had a chance to talk to him. I haven't had a -- had a talk to Jeremy yet about it. But I think what'd like to think about a little bit in the open is putting the decision off. And Jay, I have to ask you if that's a major consideration, for at least a couple weeks, and I want John's advice on this, too. To talk to some -- the town lawyer, and some folks that I know at the legislature, to understand -- because the legislature, essentially is the one that passed the law about variances. And I looked it up, coincidentally this morning when I was thinking about this case. And it does not say anywhere how many of the variances have to be met. We've heard Bart say tonight, just one of them. We have a form that says all four. That's a dilemma. And I think as sort of interpretive and liberal as we've been over the years, which I think is fair TOWN OF FOUNTAIN HILLS Page 34 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 34 of 45 because it's based on circumstances, not on just a piece of paper with writing on it. That I honestly want to make it -- and I think the Board definitely wants to make the right decision. But I don't know that we can do that without completely understanding whether these variances, again, written by the State legislature and interpreted by towns and cities, requires four -- all four variances to be met or one out of the four. And I really would like some legal help on that to understand that. And I understand what Bart says and I've actually seen it myself, where other cities are almost 100 percent, give him a variance. He's a citizen, blah, blah, blah. And some of them are no, looking at every little "i" has to be dotted, "t" has to be crossed. I don't think we want to be that literal or that liberal, to be honest with you. I think we want to understand the legislative intent when they passed these laws 150 years ago, whenever the thing was written. So I'm -- I'm just explaining this to the audience. I'm going to also ask the Board for their comments about it. But I think in the issue of fairness, we need to understand what we're dealing with here as far as to the law. And I understand your -- your viewpoints as citizens and I appreciate them. We're all citizens, too, as Carol reminds us every meeting. But I think we need to think about that a little bit. Yes, Jay, sorry. SCHLUM: You asked if we had time and we do. RYAN: Okay. Thank you. SCHLUM: Yeah. RYAN: I appreciate that. SCHLUM: Yeah, thank you. RYAN: We want to make the right decision. I mean, I don't want to make one that's embedded in somebody's writing up here with the, you know, must -- SCHLUM: I don't know if I can get all the neighbors back -- RYAN: They -- they've spoken -- PERICA: I don't think you'll have to. RYAN: -- listen, I -- we -- we kind of -- we get their -- their collective view. ANDREAE: I have a question, though. RYAN: Sure. TOWN OF FOUNTAIN HILLS Page 35 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 35 of 45 ANDREAE: I would be curious, like I said in -- in my statement, I'd be curious to know if the patio -- RYAN: Yeah. ANDREAE: -- which is already encroaching -- RYAN: Right. ANDREAE: -- has been approved, what is the issue with putting a patio cover because it doesn't change -- RYAN: Sure. ANDREAE: -- that encroachment at all. RYAN: The -- the setbacks are to do more with structures. ANDREAE: Structure, okay. RYAN: Right? And that's kind of -- is a simple way of explaining it. But if that patio cover comes out even a foot into that 20-foot setback, it's technically in violation. Whereas the stuff on the ground is just for human enjoyment. So I'm going to -- I'm going to put that to the Board in a little bit. But I think we'd take a -- I don't know what the calendar is like, but I -- I don't want to hold Jay up. And in the interest of his rights, anywhere from a two to maybe a max four week, another hearing. John is that -- schedule-wise, are we okay with that if -- before I propose that? WESLEY: So Chairman, pull up my calendar here. Certainly, you'd have your regular meeting time in June. And that would be four or five weeks out. So June what, I believe it would be the 22nd, Paula? The 15th, is that when it would be? WOODWARD: June 15th. WESLEY: So June 15th, that'd be your next regular meeting. I would think we would need to go at least two weeks out in order to give time to make sure we can really work with -- [CROSS TALK] WESLEY: -- attorneys and make sure we've got clear direction for you. RYAN: Yeah. WESLEY: From there we'd have to check availability of the room and so forth. So in order to avoid notice -- RYAN: Yeah. TOWN OF FOUNTAIN HILLS Page 36 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 36 of 45 WESLEY: -- we need to decide tonight so you continue it to a date specific. So the easiest way to do that would be to your regular meeting in June. RYAN: What's the notice time frame? WESLEY: It's a 15 day. RYAN: 15 day. All right. So two weeks would be the earliest and a month, essentially from tonight would be -- WESLEY: So you -- RYAN: -- the normal meeting. WESLEY: If tonight you could specifically schedule it to a date two weeks from now, so June the 1st -- RYAN: Yeah. WESLEY: -- I mean, that'd be fine, just so the people here know when -- it's clear on the record. RYAN: Got you. Okay. WESLEY: But will I have the information by June 1st? Probably. I don't know -- [CROSS TALK] WESLEY: -- if you wanted to do the 15th -- RYAN: If it's all right with you, I think the Board would like to work with you on that because I also want to get interpretation from the State, which I can get access to so that we have an understanding from the State level and also from the Town level, if that makes sense. WESLEY: Sure. RYAN: Okay. So we'll work on both ends of that. You and I, you do the Fountain Hills Part and I'll do the State part and we'll get somebody to give us some legal interpretation on both. And then have a chat, I think with your department and us to understand absolutely what the rule is. And then report back to the folks when we have the next hearing. If that -- if everybody's -- in the audience is okay with that, I -- then I think I'm going to turn it over to the Board and have a chat about it and see if we vote on that proposal. Is that okay? Any other questions? Okay. So let's have our little chat. HANSEN: Sure. TOWN OF FOUNTAIN HILLS Page 37 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 37 of 45 RYAN: What do you think? HANSEN: John, would it be okay if I came up one more time, real quick, please? Thank you. We were presented three times with three statements. First in the Arizona Revised Statute regarding, "A Board of Adjustment may not grant a variance if the circumstance applicable to the property is self-imposed by the property owner." WESLEY: Um-hum. HANSEN: We're then presented with the statement, again, Board of Adjustment, Section 2-8-4 Duties. "The Board of Adjustment may," again, may -- "may not grant a variance if the special circumstance applicable to the property is self-imposed by the property owner." But what I think what I'm getting caught -- cut up on is -- and I believe the second bullet is based off of the third line of the Variance B. RYAN: Um-hum. HANSEN: "A variance shall" -- RYAN: Um-hum. HANSEN: So "A variance shall not be granted by the Board if the result is the action of an applicant." So it doesn't that they put the Board in -- kind of in a bad position in that, I don't think we're denying the fact that the applicant built the structure in a manner that caused the issue. But I think there's public sentiment for the project. RYAN: Um-hum. HANSEN: Is this a matter of, do we need to change the wording of the ordinance because I think it puts the Board in a bad position -- RYAN: Um-hum. HANSEN: -- to vote, even if we do like it or didn't like it, I don't the Board could realistically vote for the project if it's a "shall" and it's imposed by the -- by the property owner. Does that make sense? WESLEY: Yes, it does. HANSEN: And so -- WESLEY: I got your point. HANSEN: -- maybe it's the -- its' the verbiage that needs to be changed -- TOWN OF FOUNTAIN HILLS Page 38 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 38 of 45 WESLEY: Um-um. HANSEN: -- not the interpretation. I don't -- I don't -- I don't know. But that -- that's where I'm getting stuck. RYAN: Okay. PERICA: John, this verbiage for Board of Adjustments, is that -- does that go to all of Arizona? Through all of Arizona? I mean, that's not something that we have just come -- that we have just produced in our zoning ordinance, say? The Board of Adjustment -- the four criteria, do they not apply to all of Arizona Board of Adjustments? WESLEY: Chair, Vice chair, yes, the State statutes do have criteria, which are then mirrored in our local zoning ordinance. So both apply. Wording is very similar in both but there are some minor differences in how -- how they worded it. PERICA: Okay. So if we're -- if we're putting this off. And I'm not disputing that we should or shouldn't, then we're looking for a change from the State. So the State would have to change not only the Town of Fountain Hills but everybody's Board of Appeals, correct? WESLEY: Possibly, possibly. We would have to compare -- PERICA: Okay. What is -- what are the chances we could get that in two weeks or even a month? Not very well. WESLEY: No. RYAN: Well, let me answer that a little bit, John, or ask Carol a question. I don't think that's the way it happens. I think the State passes a law. And then every city starts to interpret that law. So the State doesn't say -- it kind of gives you a minimum. The wording on this in the State law is actually pretty small. It's, like, one-tenth of the wording in here in the statute. So what I want to do is ask them is their intent, and it's a simple question, not so much on the wording. It's more on the one in four. If -- the original thing that was brought up tonight is, if I -- if I can show you that I'm okay with one of the four rules, I mean that was Bart's presentation, and I -- then I should get the variance. PERICA: Um-hum. RYAN: And we're interpreting this as all four have to be conformed with. I understand TOWN OF FOUNTAIN HILLS Page 39 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 39 of 45 all the "shalls" and the wording. That's just wording to me. But what did the State intend for the Board of Adjustments to do, is like, honestly, I was going to pull it up for you, about one-tenth of the wording of this Chapter 2, literally, maybe one-twentieth. It's like four lines. So I think the City is -- that embellishing on their, which they have a perfect right to do, but -- but I'm also sitting there going, what was the intent of that law? Was it one of the four rule -- and they have the four rules in there. But they kind of -- they don't structure them the way -- PERICA: Okay. RYAN: -- we're doing. PERICA: Then, let -- let me ask you this. Say the State came back stating, well, you can ignore one, one of the -- one of the four. Okay, I -- RYAN: Um-hum. PERICA: -- does that mean that everybody who's had a Board of Adjustment denied to them can come back? Everybody in the Town of Fountain Hills? WESLEY: That's what I'm not going to try to answer here tonight. PERICA: Pardon me? WESLEY: I'm not going to try to answer that here tonight. It'd be too much speculation. PERICA: [LAUGHTER] Okay. RYAN: I told you he was smart. I think that's honest. And that's why I want interpretation. I don't want to interpret it either. But I will tell you, I think of every Board meeting, at least this panel's been on, and especially you and I, I think we've been very open with the audience, is that we have considered all four individually -- PERICA: I -- I agree. RYAN: -- and either conformed or didn't conform. PERICA: I agree. But there -- there have been several meetings that I can think of where we would really have loved to give the -- the applicant what they wanted because it was good for the neighborhood, because it was, you know, it -- it just was advantageous all around but it did not meet the four criteria. So I'm just hoping that in these cases, if -- if we do find a change, we're not bombarded with people coming back and saying, well, you know, I've been here before, here I am again. TOWN OF FOUNTAIN HILLS Page 40 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 40 of 45 RYAN: I think it's -- but I think it's a question that needs to be asked. PERICA: Oh, I do, too. RYAN: So let's ask it. I mean, I -- we could, I guess, what I'm -- what I'm going to contend is if -- if the Town has been instructing this Board in an incorrect way, they want to know that, too, right, John? I may -- WESLEY: Yes. RYAN: Yeah. WESLEY: Absolutely. RYAN: So it -- the fact that it has ramifications, it is -- it's going to happen whether or not -- PERICA: I -- I -- it doesn't bother me. I'm just -- RYAN: Okay. PERICA: -- asking the question. RYAN: Yeah, no. No, no, I --I appreciate it. It's a great question. One that's been going through on my mind the whole meeting. Yeah, Jeremy. SMITH: What -- I'm in agreement with my fellow Board members in trying to understand -- better understand the interpretation of -- RYAN: Yeah. SMITH: -- of -- of this. But I think for me, I'd like to -- to look at the -- the examples of the other properties in the neighborhood that have encroachments and understand if there were variances granted for those properties, you know, and -- and are there any other examples of encroachments in the neighborhood that -- that variances have been granted. PERICA: Well, you know, this is something that -- that we've come across before. RYAN: Um-hum. PERICA: There are a lot of -- a lot of encroachments in the Town of Fountain Hills -- by saying a lot, that's maybe erroneous, that have not been approved. WESLEY: Correct. PERICA: There are a lot of buildings -- the building that that lady has next to her, across from her, we don't know if that's been approved or if they have just done it. I know people that have, you know, put up structures, additions, garages, whatever, that have not gotten building permits. And you know, you've -- TOWN OF FOUNTAIN HILLS Page 41 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 41 of 45 RYAN: Right. PERICA: -- you -- SMITH: So I guess that's my next question is, is looking at this adjacent -- looking at these examples that were put forth and understanding if there was a variance granted for those encroachments. That sets the precedence. PERICA: Well -- RYAN: That's a great -- SMITH: You know. RYAN: -- question. SMITH: So -- yeah, yeah. RYAN: I mean if -- if, John if the folks in the audience can give John the addresses that were addressed, and the Board of Adjustment, I don't know, 15 years ago -- SMITH: Um-hum. RYAN: -- a meeting and allowed that to happen, we'd let -- we would be appreciative (indiscernible) -- SMITH: Then, then that -- then that would set a precedence -- RYAN: He's just saying -- SMITH: -- in the neighborhood. RYAN: -- let the folks in the town do a little research, I think it was three properties -- SMITH: Right. RYAN: -- that were brought up tonight. PERICA: I -- I think it's a -- RYAN: Anything else (indiscernible) -- PERICA: -- fabulous idea. However, this was requested of the Town one time before, to do some background like that and it wasn't done. Or what -- RYAN: Listen -- PERICA: -- excuse me, they weren't able to do it because of time, you know, when -- records lost or it happened 20 years ago and the -- the zoning was different then. So that may require a lot of research that they don't have the personnel to do it or the time to do it. RYAN: Yeah. I think we only asked once in the last seven or eight years. And John's TOWN OF FOUNTAIN HILLS Page 42 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 42 of 45 folks did do it. But the question is, really, did the folks who have that encroachment have a Board of Adjustment meeting? Now, the last time he looked, there were two or three properties identified. They didn't have -- PERICA: They didn't -- RYAN: -- have a board itself, but so we -- that would not be a good rationale. But what I think Jeremy is saying is that if you take a look at those three properties, they're fairly identifiable, wouldn't take a lot of research, did they get a Board of Adjustment variance? If they did, then we'd -- PERICA: Did they need one at the time that they did it? RYAN: Well, it's four foot -- four foot into a 20-foot setback, yeah, they did. PERICA: Oh, okay. RYAN: Yeah. So anyway if we can identify those three, you heard at least two of them tonight. They're fairly close to the Schlum, maybe they're -- that third -- the third one should come from -- I can't remember the last speaker's name. The lady, young lady behind Jay. If she could give John that address, that'd be great. Then take a look at those three. They were brought up in a public hearing and let's see if they had a Board of Adjustment variance on whatever they're violating the setback. I think that's great. In the meantime, that proposal, I -- can -- should we, Erik and Carol and Jeremy, are you in favor of putting this off for two to four weeks -- PERICA: Yes. RYAN: -- depending on how's the room availability? And then get some input back from the folks who made the law. PERICA: What are we talking, two or four weeks? WESLEY: Again, I'd think we'd better to go ahead and continue to your regular schedule June meeting date, which would be June 15th. That gives us four weeks. RYAN: Okay. That's fine. PERICA: Okay. That's -- RYAN: Time to find the answers. And I may, if -- if -- PERICA: Then -- then -- RYAN: -- if one of you folks is available, I may ask you to come do a little meeting with TOWN OF FOUNTAIN HILLS Page 43 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 43 of 45 me and the State to see what their intent was. And John, I'll invite you, too, if I can get a time when you're open. Because I do want to get this resolved. I think everybody -- thanks a lot, by the way, to the folks in the audience, for bring up this very critical point. And I -- I'm -- can't thank you enough for making -- having us go through that mental process. And I'm glad we did. Sure no one's probably ever done this before but that's okay, we're kind of -- we're kind of good at establishing precedent anyway. To go and find out what everybody's intent was once they wrote the law, that's really the -- the function of a law is the intent of the people that wrote it. Not just what is interpreted 40 years later. So I appreciate your patience with that, Jay especially, but also the folks that spent the time tonight with us, I appreciate your patience with that, too. SCHLUM: We are very fortunate in our neighborhood. I wish everybody could have -- RYAN: No kidding. SCHLUM: -- the neighbors we have -- RYAN: Yeah [LAUGHTER]. SCHLUM: -- because it is pretty special at -- RYAN: Yeah. SCHLUM: -- yeah, thanks. Thanks for them to take the time to stay -- RYAN: Yeah. SCHLUM: -- here a little longer for tonight. And when you do review the State statutes regarding Boards of Adjustment -- RYAN: Yes. SCHLUM: -- you will see "shall" in more of a liberal term. RYAN: Yeah. SCHLUM: You shall be able to do this -- RYAN: Do this and this, yeah, I -- SCHLUM: -- it's a pretty -- it may be empowering. But I appreciate you taking the time to look into it. RYAN: We just want to do the right thing, Jay. And I think that's -- that's the main obligation we're -- we're respecting in this room. So thank you very much for saying that, though. TOWN OF FOUNTAIN HILLS Page 44 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 44 of 45 All right. So I'm going put -- I'm going to put that to the folks, if I can get a second that we take a -- have a meeting a month from now. In the meantime, John will -- and hopefully invite us or whoever can come, to the meeting with the Town lawyer to find out their interpretation -- PERICA: Do you want to make a motion on that? RYAN: Yeah. I'm doing one right now. PERICA: Oh, okay. RYAN: And then -- I'd love you to second it. And the second part of that potion is then to go to the State and get an attorney's opinion, could be the State Attorney, from the legislature, not from the State Attorney General's Office, but for the legislature to say, what was interpretation of this law passed in, probably 1912 or something. And that -- that's the only motion I have. So and then put the meeting off until a month from today. PERICA: I second that motion. RYAN: Thank you. It's good to do a voice vote again. All in favor say aye. ALL: Aye. RYAN: Anybody opposed, say nay. So it's passed. WOODWARD: Four - zero. RYAN: Yup. So is -- I think we're done with the agenda. Again, thank you. It's been an hour and a half. I -- I can't tell you how I'd rather spend with any other people than the folks in this room the last hour and a half. But it's been very enlightening. And I want to again thank you for bringing up these important points and for having the patience to kind of go through this process with us. So thank you very much and the meeting is now adjourned. PERICA: We need a motion, don't we? RYAN: Oh, do I have to have a motion to adjourn? PERICA: Yeah. RYAN: No, I don't? PERICA: No? RYAN: I have the power in this gavel -- PERICA: Okay. TOWN OF FOUNTAIN HILLS Page 45 of 45 MAY 18, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 45 of 45 RYAN: There again, did I leave something off the agenda? What? What? WOODWARD: Summary report (indiscernible) -- that's okay. I'll get it. RYAN: Sorry. WOODWARD: We're good. RYAN: Thank you. WOODWARD: I'll get it (indiscernible). [MEETING ADJOURNED AT 6:56 PM] ITEM 5. TOWN OF FOUNTAIN HILLS STAFF REPORT    Meeting Date: 06/15/2023 Meeting Type: Board of Adjustment Regular Meeting  Agenda Type: Submitting Department: Development Services Prepared by: John Wesley, Development Services Director Staff Contact Information: John Wesley, Development Services Director Request to Board of Adjustment Regular Meeting (Agenda Language):  PUBLIC HEARING, CONSIDERATION, AND POSSIBLE ACTION: A request by Jay Schlum for a Variance to reduce the minimum front yard setback from 20 feet to approximately eight feet to allow the addition of a patio cover in the front setback area at 17114 E Fairway Ct. (APN# 176-10-099) in the R1-8 Single Family residential zoning district. (Case #VAR23-000002)  Staff Summary (Background) June 15, 2023, Additional Information This variance request was reviewed and discussed at the Board's May 18, 2023, meeting.  At that meeting the Board received comments in support of the request from the applicant, the property owner, and neighbors.  There was information presented and discussion by the Board regarding the findings required to approve a variance.  The applicant presented some information indicating there were other properties in the area that do not meet the setback requirements.  The Board voted to continue the request to this meeting to give staff time to research and clarify the findings required and the information provided regarding other properties in the neighborhood. Review of Statute and Ordinance required findings to consider and approve a variance: The first two required findings stated in the staff report come directly from state statutes and the zoning ordinance. ARS 9-462.06 covers Board of Adjustment.  Subsection G. 2. provides the following criteria for consideration of a variance:  G. A board of adjustment shall: 2. Hear and decide appeals for variances from the terms of the zoning ordinance only 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 the property of privileges enjoyed by other property of the same classification in the same zoning district. Any variance granted is subject to 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 the property is the limitations upon other properties in the vicinity and zone in which the property is located. The Town's Zoning Ordinance requirement is almost word for word from the state statute.  Zoning ordinance Section 2.07 B. 1. states:  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.    Both of these statements say that the Board can consider a variance for approval only if they find that there are special circumstances on the property that deprive the owner of the ability to use the property in the way other property owners in the same district can use their property consistent with the requirements of the zoning ordinance.  The things that can be considered special circumstances include the size, shape, topography, location, or surroundings of the property.  If the Board cannot identify any special circumstances associated with the property for which the variance is being requested, then the Board cannot further consider or approve the requested variance. ARS 9-462.06 H. 2. goes on to say that "a board of adjustment may not... grant a variance if the special circumstances applicable to the property are self-imposed by the property owner."  Zoning ordinance Section 2.07 B. 3 has a similar statement: "A variance shall not be granted by the Board unless the alleged hardship...is not the result of actions of the applicant."  It is clear from the statute and the ordinance that this is also a threshold standard for consideration of a variance.  If the Board finds special circumstances on the property, but that special circumstance was caused by prior actions of the owner, a variance cannot be granted. The third required finding in the staff report below is taken from the statements above in ARS 9-462.06 G. 2. and Town Zoning Ordinance 2.07 B. 1.  Both of these provisions say the purpose of a variance is to provide relief from the zoning ordinance in situations where the strict application will deprive the property owner of use of the property.  Therefore, it is necessary to find that the variance is necessary to preserve substantial property rights. If the property owner is using and enjoying the property in a manner similar to the property owners in the area or other property with the same zoning designation, then this relief is not needed and the variance is not justified. With all of these statute and ordinance provisions the language is "shall" and "will" which is mandatory. The fourth required finding used in the staff report is not listed in the zoning ordinance, but is implied by ARS 9-462.06 K. This provision in state statute allows people aggrieved by the granting of a variance to appeal the decision.  This finding seems to try to preempt that by giving consideration to the impact of the granting of a variance on the surrounding property owners. There are two additional provisions in the zoning ordinance that are not included in the findings as listed in the staff report.  One is in 2.07 B 3 which states: "A variance shall not be granted by the Board unless the hardship caused by literal interpretation of the provisions of this section result in more than unless the hardship caused by literal interpretation of the provisions of this section result in more than personal inconvenience and/or personal financial hardship" and B. 5. which states: "No nonconforming use or violations of this section 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."  These ordinance requirements should also be included in the deliberations of the Board. Review of area properties: There was also some evidence presented at the previous meeting regarding other lots in the area with homes that did not meet the required setbacks.  Staff has done a further review of the area and found the following (see attachment showing these properties).  The County zoning ordinance effect at the time the homes in this area were built had the same 20' front yard setback as our Town ordinance today.  However, it allowed street side yards at 1/2 the front yard requirement, which reduced those to 10' For zoning purposes on corner lots, the front yard is the narrower of the two street frontages  For the lot at the northwest corner of Fairway Ct. and Nicklaus Dr., Nicklaus is the street side yard.  An exact measurement is not possible, but it appears the corner of the garage closest to Nicklaus may encroach into the street side yard setback by a foot or two. This lot also has a wall along Fairway Ct.  The western part of the wall that angles down toward the street was constructed prior to 1986, while still under County review.  Today that wall could only be 3.5' tall.  Staff does not have records to know if a variance was granted for this wall.  A wall is required as a pool barrier.  The portion of the wall that is parallel to the street is new and is built at the 20' setback line. For the lot at the southwest corner of Fairway Ct. and Nicklaus Dr., Fairway is the street side yard.   The closest corner of the garage on that lot exceeds the required setback. The house on the lot at 17104 E. Cyprus Point Ct. appears to encroach into the front and interior side yard setbacks.  This is another very early home in the area, built prior to 1976.  This lot has very steep side yard which limited the development of the property.  We do not have the historical records to know if a variance was granted. Original Report The property owner at 17114 E Fairway Ct. has submitted a request for a variance to the front yard setback in the R1-8 zoning district.  The reason for the request is to allow for the construction of a patio cover for the patio in the front of the house.  The front yard of the home is used as an outdoor patio with tables and chairs and a barbeque.  The proposed patio cover would be approximately 8.5' from the front property line at the closest point.  The required front yard setback in the R1-8 district is 20 feet. 17114 E. Fairway Ct. is Lot 15, Block 5, Final Plat 401-B.  The lot has over 93' of frontage along Fairway Ct. and is over 130' deep; this is similar to other lots in the area.  The R1-8 zoning district requires a minimum lot width of 80' and lot size of 8,000 sq. ft.  Lots in the area range from 11,000 sq. ft. to over 17,000.  This lot is 14,309 sq. ft.  The property downward approximately 10' overall from the northwest to the southeast corner.  There is a little over two foot change in elevation from the front of the house to the front property line.  The attached Additional Property Information document provides information on the lot size and contours. Improvements on the property include a home with a livable area of 2,900 sq. ft., a 550 sq. ft. garage, a front covered patio of 143 sq. ft., a front uncovered patio of 555 sq. ft., a rear uncovered patio of 351 sq. ft., and a pool.  This district allows 35% lot coverage.  Currently, this lot has approximately 25% lot sq. ft., and a pool.  This district allows 35% lot coverage.  Currently, this lot has approximately 25% lot coverage. Findings: The four findings which must be made by the Board of Adjustment in order to grant a variance are listed below.  The applicant has provided their written justification which is attached. 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. The lot is of an almost rectangular shape and exceeds the minimum dimensions for lots in this zoning district and is of average size compared to other lots in the general area.  The home exceeds all setback requirements, except the addition previously added to the front of the home is at the front setback.  The lot coverage is well under the maximum allowed.  There are no significant topographic features which impact the ability to develop or use the property in a manner that complies with ordinance requirements.  2.  The above special circumstances or conditions are preexisting and are not created or self-imposed by the owner or applicant. The area was platted in 1972 and homes began being constructed shortly thereafter.  The home at this address appears in a 1976 aerial.  The middle portion of the home was demolished in 2007 and rebuilt in 2008 with an addition toward the street.  The front walls have been in place since the 2008 remodel.  The Schlums were the property owners at the time. 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. The property contains a home with a garage, pool and patio areas.  It has been used for residential purposes for almost 50 years.  The development and use of this lot is similar to that of other properties in the area and with this same zoning designation in the Town.  There are other areas on the property where covered outdoor space could be provided and comply with the setback requirements. 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. Setbacks are established and applied consistently with a given zoning district to maintain separation between structures, provide for visibility and landscaping along a street, and to maintain a uniform street appearance.  Allowing the encroachment into the required setback will impact neighbor's views. Compliance with State Law: Arizona Revised Statutes states the following in regard to the granting of variances:   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.   Related Ordinance, Policy or Guiding Principle Article 2-8 BOARD OF ADJUSTMENT 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.     Risk Analysis N/A Recommendation(s) by Board(s) or Commission(s) N/A Staff Recommendation(s) Granting of variances is subject to the Board being able to find that very specific legal requirements are met.  Based on this criteria and the analysis above, Staff recommends that the Board of Adjustment FIND that 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 Vicinity Map  Written Narrative  Addition Plan View  Addition Elevations  Additional Property Information  Area Properties  Form Review Inbox Reviewed By Date Development Services Director (Originator)John Wesley 06/07/2023 07:53 AM Form Started By: John Wesley Started On: 05/23/2023 04:02 PM Final Approval Date: 06/07/2023  Vicinity CASE: VAR23-000002 SITE / ADDRESS: 17114 E FAIRWAY CT APN 176-10-099 REQUEST: A variance to the front yard setback of 20 feet All that is Ariz on a FO U N TAIN HIL L S TOWN OF INC. 1989 MCDOWELL MOUNTAIN REGIONAL PARK SALT RIVER PIMA - MARICOPA INDIAN COMMUNITY FO R T M C D O W E L L Y A V A P A I N A T I O N SC O T T S D A L E Site Location Vicinity MapMap ::CaseCase DetailsDetailsVAR23-000002VAR23-000002 N N I C K L A U S D R N DE M A R E T D R E PALMER WAY E C Y P R U S P O I N T C T E FAIR W A Y C T N NIC K L A U S CYP R U S P O I N T W A S H SA G U A R O B L V D DESERT CANYON GOLF COURSE DESERT CANYON GOLF COURSE DR Shea-Connelly Development LLC 8777 E Via de Ventura Suite 250 Scottsdale, AZ 85258 480-315-9090 • Fax 480-315-9091 March 28, 2023 TO: Mr. John Wesley, AICP – Development Services Director Town of Fountain Hills - Planning Division - Board of Review FROM: Shea Connelly Development, LLC RE: Schlum Residence Patio Addition On behalf of Jay and Denise Schlum, I respectfully request a Variance to their 20’ Front Setback Zoning Ordinance. Their lot is narrow, with 7’ Side Setbacks, and slopes severely to the Southeast. Adding a cover to the existing front patio will greatly enhance their quality of life for the majority of the year. As the Schlum’s approach their Golden Years, outdoor exposure to sun creates concerns over skin cancer. Not only will this patio cover assist in addressing their concerns, additionally it will become the same benefit for their children and grandchildren. The idea of granting this variance is supported by their five (5) cul-de-sac neighbors, of which not one faces towards the Schlum Residence. The patio cover only adds an additional 11’7” to the front of their residence, without disturbing any more of their existing lot. Granting this Variance, as proposed, will provide an aesthetically pleasing front elevation, consistent with surrounding properties in Fountain Hills. Proposed materials will only complement the existing residence. Thank you. Respectfully Submitted, Dave Love President of Construction Shea Connelly Development LLC 1 2 3 1 5 3 TYP. TYP. 6' - 5 1 / 4 " 11 ' - 7 " 13'-4"13'-4"7'-1 3/8" Chandler, Arizona 85225 232 W Orchid Ln Phone: 602-722-0862 Revisions: Title: Drawn By: Project Number: Date: Case #: Plan Check #: E: hloera1@gmail.com A102 FLOOR PLAN SCALE: 1/4" = 1'-0"1 FLOOR PLAN KEYED NOTES: 1.10" DIA. VIGA COLUMN 2.DASHED LINE INDICATES PARAPET WALL ABOVE 3.EXISTING WALL 4.EXISTING DRIVEWAY 5.EXISTING LOW CMU WALL FLOOR PLAN GENERAL NOTES 1.GENERAL CONTRACTOR SHALL VERIFY ALL DIMENSION PRIOR TO LAYOUT OR CONSTRUCTION. THE DESIGNER SHALL BE NOTIFIED OR ANY FIELD VARIATIONS FROM PLAN DIMENSION PRIOR TO ANY INSTALLATION OR FABRICATION. 2.ALL EXTERIOR CORNERS SHALL BE BULL NOSED. MIN. 3/4" RADIUS. SC H L U M R E S I D E N C E P A T I O A D D I T I O N 17 1 1 4 E . F A I R W A Y C O U R T FO U N T A I N H I L L S , A Z 202211 HL 12/19/22 1ST FLOOR +0' - 0" T.O. PARAPET 4 +16' - 5" T.O. PARAPET 3 +15' - 5" T.O. PARAPET 2 +14' - 5" T.O. PARAPET 1 +13' - 5" B.O. HEADER 2 +10' - 0" 1'-6"2'-8 3/4" 8" 8" 8" 8" 2'-8 3/4"1'-6" 4 A301 3 A301 123 4 5 1ST FLOOR +0' - 0" T.O. PARAPET 4 +16' - 5" T.O. PARAPET 3 +15' - 5" T.O. PARAPET 1 +13' - 5" B.O. HEADER 2 +10' - 0" 1'-6"2'-8 3/4" 8" 8" 3' - 5 " 1 32 4 5 1ST FLOOR +0' - 0" T.O. PARAPET 4 +16' - 5" T.O. PARAPET 2 +14' - 5" T.O. PARAPET 1 +13' - 5" B.O. HEADER 2 +10' - 0" 8" 8" 3' - 5 " 1'-6"2'-8 5/8" 132 4 5 1ST FLOOR +0' - 0" T.O. PARAPET 3 +15' - 5" T.O. PARAPET 1 +13' - 5" ROOF LINE +12' - 2"A301 2 A301 1 A301 3 Chandler, Arizona 85225 232 W Orchid Ln Phone: 602-722-0862 Revisions: Title: Drawn By: Project Number: Date: Case #: Plan Check #: E: hloera1@gmail.com A201 EXTERIOR ELEVATIONS SC H L U M R E S I D E N C E P A T I O A D D I T I O N 17 1 1 4 E . F A I R W A Y C O U R T FO U N T A I N H I L L S , A Z SCALE: 1/4" = 1'-0"1 FRONT ELEVATION SCALE: 1/4" = 1'-0"3 LEFT ELEVATION SCALE: 1/4" = 1'-0"2 RIGHT ELEVATION SCALE: 1/4" = 1'-0"4 SECTION 202211 HL 12/19/22 KEYED NOTES: 1.WESTERN ONE-KOTE STUCCO SYSTEM ON METAL LATH OVER WATER RESISTANT BARRIER, OVER 1" RIGID INSULATION - PAINT TO MATCH EXISTING. 2.DASHED LINE INDICATES ROOF LINE 3.PARAPET 4.ROOF SCUPPER - SEE DETAIL 4/A301 5.10" DIA. VIGA COLUMN Approximate area of proposed addition Subject Parcel