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HomeMy WebLinkAbout2025.0417.BoA_Packet       NOTICE OF MEETING REGULAR MEETING FOUNTAIN HILLS BOARD OF ADJUSTMENT    Chairman Paul Ryan  Boardmember Erik Hansen Boardmember Nick Sehman Boardmember Heather Swanson Boardmember John Weimer      TIME:5:30 P.M. – REGULAR MEETING WHEN:THURSDAY, APRIL 17, 2025 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 Commission 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     2.ROLL CALL     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 regular and special meeting minutes of the Board of Adjustment June 15, 2023.     5. CONSIDERATION AND POSSIBLE ACTION of Appointing a Chairperson to the Board of Adjustment.      6.CONSIDERATION AND POSSIBLE ACTION: Appointing a Vice Chairperson to the Board of Adjustment.      7.REVIEW the duties and role of the Board of Adjustment and Section 2.07, Appeals and Variances.     8.BOARD DISCUSSION/REQUEST FOR RESEARCH to staff.    9.SUMMARY OF BOARD REQUESTS from Development Services Director.    10.REPORT from Development Services Director.    11.ADJOURNMENT     Dated this ______ day of ____________________, 2025. Board of Adjustment Meeting of April 17, 2025 2 of 3   Dated this ______ day of ____________________, 2025. _____________________________________________  Paula Woodward, Executive Assistant   The Town of Fountain Hills endeavors to make all public meetings accessible to persons with disabilities. Please call 480-816-5199 (voice) or 1-800-367-8939 (TDD) 48 hours prior to the meeting to request a reasonable accommodation to participate in the meeting or to obtain agenda information in large print format. Supporting documentation and staff reports furnished the Board with this agenda are available for review in the Development Services' Office. Board of Adjustment Meeting of April 17, 2025 3 of 3   ITEM 4. TOWN OF FOUNTAIN HILLS STAFF REPORT    Meeting Date: 04/17/2025 Meeting Type: Board of Adjustment Agenda Type:                   Submitting Department: Development Services Prepared by: Paula Woodward, Executive Assistant Request to Board of Adjustment (Agenda Language):  CONSIDERATION AND POSSIBLE ACTION: Approval of the regular and special meeting minutes of the Board of Adjustment June 15, 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 regular and special meeting minutes of the Board of Adjustment June 15, 2023. SUGGESTED MOTION MOVE to approve the regular and special meeting minutes of the Board of Adjustment June15, 2023. Attachments Special Meeting Minutes  Summary Minutes and Verbatim Transcript  Form Review Form Started By: Paula Woodward Started On: 03/12/2025 05:02 PM Final Approval Date: 03/12/2025  Board of Adjustment Special Meeting June 15, 2023 1 of 1 TOWN OF FOUNTAIN HILLS MINUTES OF THE SPECIAL MEETING OF THE BOARD OF ADJUSTMENT JUNE 15, 2023 1. CALL TO ORDER Chairman Ryan called the Special Meeting of the Board of Adjustment held on June 15, 2023, to order at 4:30 p.m. 2. ROLLCALL Boardmembers Present: Chairman Paul Ryan: Vice Chairwoman Carol Perica; Boardmember Erik Hansen; Boardmember Nick Sehman; Boardmember Jeremy Smith Staff Present: Town Attorney Allen Quist and Executive Assistant Paula Woodward 3. ADJOURN INTO EXECUTIVE SESSION MOVED BY Chairman Ryan to recess into Executive Session. SECONDED BY Vice Chair Percia. Vote: 5-0 Passed – unanimously 4. EXECUTIVE SESSION A. Discussion or consultation for legal advice with the attorney or attorney of the public body, pursuant to A.R.S. Section 38-431.03 (A)(3) and(A)(4). . I. Variance criteria 5. ADJOURNMENT Chairman Ryan adjourned the Special Meeting of the Fountain Hills Board of Adjustment held on May 18, 2023, at 5:27 p.m. TOWN OF FOUNTAIN HILLS Paul Ryan, Chairman ATTESTED AND PREPARED BY: Paula Woodward, Executive Assistant Board of Adjustment June 15, 2023 1 of 2 TOWN OF FOUNTAIN HILLS MINUTES OF THE REGULAR MEETING OF THE BOARD OF ADJUSTMENT JUNE 15, 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 June 15, 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 Chairwoman Carol Perica; Boardmember Erik Hansen; Boardmember Nick Sehman; Boardmember Jeremy Smith Staff Present: Development Services Director John Wesley, Town Attorney Allen Quist 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 May 18, 2023. MOVED BY Vice Chairwoman Perica to approve the regular meeting minutes of the Board of Adjustment May 18, 2023. SECONDED BY Boardmember Hansen. Vote: 5 - 0 passed – Unanimously 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. Chairman Ryan opened the public hearing. The following resident addressed the Board: Krista Andreae Chairman Ryan Closed the public hearing. MOVED BY Vice Chairwoman Perica to DENY the Variance requested by Jay Schlum for the property located at 17114 Fairway Ct. SECONDED BY Boardmember Sehman. Vote: 5 - 0 passed Boardmember Sehman Aye Boardmember Smith Aye Boardmember Hansen Aye Vice Chairwoman Perica Aye Chairman Paul Ryan Aye Board of Adjustment June 15, 2023 2 of 2 6. BOARD DISCUSSION/REQUEST FOR RESEARCH to staff. No action taken. 7. SUMMARY OF BOARD REQUESTS from Development Services Director. No action taken. 8. REPORT from Development Services Director. No action taken. 9. ADJOURNMENT Chairman Ryan adjourned the Regular meeting of the Fountain Hills Board of Adjustment held on June 15, 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 June 15, 2023. I further certify that the meeting was duly called and that a quorum was present. DATED this day of June 20, 2023. Paula Woodward, Executive Assistant TOWN OF FOUNTAIN HILLS Page 1 of 29 JUNE 15, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 1 of 29 Post-Production File Town of Fountain Hills Regular Meeting Fountain Hills Board of Adjustment June 15, 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 29 JUNE 15, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 2 of 29 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: Take a moment to remain standing and have a moment for all our soldiers that are overseas. [MOMENT OF SILENCE] RYAN: Thank you very much. So that, we'll have a Call to the Public. Is that -- for any issues that are -- oh, sorry, roll call. I just, my screen -- WOODWARD: Okay. RYAN: -- and my scrollers is not working well. Go ahead, Carol, sorry. WOODWARD: Chairman Ryan. RYAN: Present. WOODWARD: Vice Chairman Perica. PERICA: Present. WOODWARD: Board member Sehman. SEHMAN: Present. WOODWARD: Board member Smith. SMITH: Present. WOODWARD: Board member Hanson. HANSEN: Here. WOODWARD: Thank you. RYAN: So next will be Call to Public. WOODWARD: No Call to the Public. RYAN: Okay. Thank you. And then, consideration of approval of the minutes meeting for May 18th, '23. PERICA: I move that we approve the minutes for the meeting of May 18th, 2023. RYAN: And is there a second? HANSEN: Second. RYAN: Okay. Then meetings are approved -- well, I'll just have a voice vote of approval. Is that approved -- everybody approve the minutes of the meeting, yes or no -- aye. TOWN OF FOUNTAIN HILLS Page 3 of 29 JUNE 15, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 3 of 29 ALL: Aye. RYAN: And then the -- WOODWARD: Five, zero. RYAN: -- five, zero, thank you. And then the Public Hearing of Jay Schlum's variance for a front yard setback. John, could you repeat what that is, please. WESLEY: Go back here. This is a hearing, consideration of possible action regarding a request from Jay Schlum for a variance to reduce the minimum front yard setback from 20 feet to approximately 8 feet to allow for the additional of a patio cover in the front yard and a setback area at 17114 East Fairview [sic] Court in the R-1, single family zoned district. RYAN: Okay. And has there -- I think during the last hearing we asked about, have you -- could you go back and take a look at some of the properties that were cited in the previous hearing that were not -- that appeared not to be in conformance with the front setback. WESLEY: Yes. And I have that information in your packet. And I do have it here in my PowerPoint if needed. It's -- I'll put it at the end but it's available if we need to see that. RYAN: Was there a general finding? Can you kind of illucinate [sic] to the folks in the audience a little bit what you found? WESLEY: Or I go ahead and just go straight down to that. So the three property -- so the property shown in red here is Mr. Schlum's property. The three shown in blue were the ones that were highlighted as having possible deviations from the Town code. The one at the northwest corner of Fairview, basically one of the things we found was in the County code at the time, if you own a corner property, the front yard setback was 20 and the street side yard setback was half the front yard setback. RYAN: Huh. WESLEY: So in this case, the front yard is the Fairview Court side. And so the portion of the house along the side street should have a 10-foot setback. Measuring from the aerial, which isn't exact, because you really can't see where the base is, it looks to be at about 8 foot at the closest. So, yeah, maybe it does encroach, but maybe it doesn't, too, you know, you'd have to go out with a survey to know for sure. TOWN OF FOUNTAIN HILLS Page 4 of 29 JUNE 15, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 4 of 29 RYAN: Okay. WESLEY: But we did also find that the wall along Fairview Court at the one that's circled there and the diagonal, that would not meet the code requirements. The new one that was added recently does meet that 20-foot setback requirement. To the south, in this case, the Fairview Court side is the side street and it has a 10-foot setback when it was built in the County. I measured that about 13 feet. So that meets the code requirements. The other was this house on the adjacent cul-de-sac. And it does encroach in the setbacks, the side yard and the front yard setback. But you also see that significant topography that they had to deal with on this particular lot. This property was built back in the early '70s while it was in the County. I don't have any records of whether a variance was granted for that, but there are significant topographic features on that property. RYAN: Okay. And thank you. And were there other questions that remain in people's minds from last week that were -- okay. Let me -- I want to explain to the audience a little bit about, we promised we would go and take a look at State law and the Town ordinances. That's why Allen Quist, the lawyer is here. We've asked him for a couple questions. And I think John and I participated in a conversation with him, too, about an interpretation of these versus the State law. Are the ordinances in conformance, essentially? Or were they embellished to have a little different meaning and found two things. One, that the ordinances in Fountain Hills are pretty much, almost exactly aligned with the State. They even use the same verbiage. And then the second thing we found was that, the question that was brought up, I think, by somebody in the audience, that said, some towns have been known to give one out of the four and that would constitute a variance. Some would do the majority. Some would take interpretations that were their own. And the Board of Adjustment has a right to do that. But this Board of Adjustment, especially after studying the State statutes and the ordinances of the Town, is going to discuss those four criteria tonight and see if those are in either compliance or they don't meet Board variance criteria that we can actually make a judgment, a positive or negative judgment without some discussion. TOWN OF FOUNTAIN HILLS Page 5 of 29 JUNE 15, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 5 of 29 So I'm going to have a brief discussion about each one of these in the order that we get them so the public knows our rationale for making the judgment. The first one -- could you read the first one for me? PERICA: "There exists special circumstances or conditions regarding the land, building, or use referred to in the application, which does not apply to other properties of the district". RYAN: Okay. A comment there was made if I -- this is my memory, in the hearing that someone questioned about the topography being a factor. It looks like, at least from the data we have, that the topographies are pretty much pretty normalized in that particular neighborhood. John, would you agree, disagree with that? Or what's the Town's guidance on that? WESLEY: Chair, yes, we did not see anything particularly unique about the topography on this lot compared to other lots in the neighborhood or around the town. RYAN: Okay. And no other special circumstance that we could note on there -- WESLEY: Not that the staff -- RYAN: -- flood things and -- WESLEY: -- knew anything about. RYAN: -- water drainage, that kind of stuff. So if someone to make a motion on that first one, I think that would be the proper thing to do at this point. QUIST: Mr. Chair, I would recommend -- Allen Quist with the Town Attorney -- that the motion be holistic as to the entire variance as opposed to each individual criteria. So that the variance is to either approve or deny the variance and then make findings based on whatever that the motion is. PERICA: Chairman Ryan, if it pleased this board, I would like to just go over the four criteria that we have to make the variance. QUIST: Oh, and I apologize for interrupting again. But have we opened this to a public comment -- RYAN: So our -- yeah, that's a good point. We'll open it to the public. So are there any other comments from the public that we want to add to the record so far on this particular case? WOODWARD: Chairman, I have a speaker card, a request to comment from Christa TOWN OF FOUNTAIN HILLS Page 6 of 29 JUNE 15, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 6 of 29 Andreae. ANDREAE: I would like to wait. I would really like to hear what you guys have to say. RYAN: Okay. ANDREAE: If it's all right. I'd like to, if I may -- WOODWARD: Chairman. ANDREAE: -- not that I need to. RYAN: I think -- PERICA: I can't hear her. UNIDENTIFIED SPEAKER: The applicant is here and would like to speak, too. RYAN: What's that? UNIDENTIFIED SPEAKER: The applicant would like to get up and -- RYAN: Oh, sorry. SHEA: Mr. Chairman, thank you very much. I apologize, last time I had a family emergency and had to leave. A couple things that have already been said. RYAN: Um-hum. SHEA: I already gone through and clarifications from the last meeting. The purpose of any process inside the variance is to vary from that process which the planning department has decided is standard and applicable. When I said last time that other cities have multiple terms in them that would require that type of a zoning, it's one ordinance that says shall and gives a list of all the things inside of that that is shall meet. RYAN: Um-hum. SHEA: In this particular instance, we've chosen four things out of the multitude of things that could grant a variance. RYAN: Um-hum. SHEA: And said that we've decided that these four all need to be adhered to. RYAN: Okay. SHEA: As well as -- RYAN: Do you mean through the Town ordinance? SHEA: -- through the Town ordinance, but it doesn't list -- RYAN: Okay. SHEA: -- it that way in the Town ordinance. It lists it as a shall for each one of these -- TOWN OF FOUNTAIN HILLS Page 7 of 29 JUNE 15, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 7 of 29 RYAN: Well, in the State constitution or the State law doesn't list them one, two, three, four either. SHEA: No. But it puts a common between each one that lists them as each one -- RYAN: Okay. SHEA: -- separately. So again, it's the way the laws are grafted and how it works in -- RYAN: Sure. SHEA: -- interpretation of the zoning ordinance is that -- RYAN: Yeah. SHEA: -- become inherent. If it's the criteria that every variance that's ever negotiated or talked about has to meet all specific items on an opinion basis, my personal opinion, between the northwest corner of 17114 -- RYAN: Um-hum. SHEA: -- East Fairway Court to the southeast corner -- RYAN: Um-hum. SHEA: -- is about a 15-foot drop. RYAN: Um-hum. SHEA: That's a substantial grade. Is it different than the rest of the houses on the lot? No. All of them have the same huge drops from their neighbors in back. An opinion is that, no, it's pretty standard for the neighborhood. RYAN: Um-hum. SHEA: It's also on a radius lot. It is, as you recall, that does impact how the house would fit on the lot originally. On the high side of the lot, you can't put the driveway. You'll never get up it. We all experience that in Fountain Hills. So how houses lay out on lots and how they go together, that's what John showed you on that one lot with the hillside ordinance. To be honest with you, they didn't really enforce a lot of the setbacks in Fountain Hills when it was County. RYAN: Yeah. SHEA: They just -- it was kind of wild west. But all of that being said, the Schlum's lot does have -- RYAN: Um-hum. SHEA: -- different obstacles on it that aren't standard to a subdivision lot. The zoning TOWN OF FOUNTAIN HILLS Page 8 of 29 JUNE 15, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 8 of 29 ordinances you're reading are written, like you said, they're almost verbatim for the State. RYAN: Um-hum. SHEA: They don't incorporate what happens in Fountain Hills. They're not specific to Fountain Hills. RYAN: Um-hum. SHEA: So when you say that there's no topography different, in Fountain Hills it isn't, but if I was in Mesa -- RYAN: Um-hum. SHEA: -- it would be, every lot is flat. So this would be an extreme. RYAN: Okay. SHEA: But that's kind of the -- RYAN: And so what -- PERICA: May I -- RYAN: -- how does it -- PERICA: -- may I comment to that? RYAN: Sure. PERICA: We're not comparing other cities or states; you are, I believe. And it isn't our job to compare what other people do. We have these four criteria that we have always gone by and that's it. That's what we are legally, I think -- RYAN: So let me embellish -- PERICA: Go ahead. SHEA: I'm not trying to compare it. I'm saying there is a huge difference. RYAN: I understand. But you brought it up. It's a reasonably valid point but it doesn't really matter in this particular case in Fountain Hills because Fountain Hills decided as a town to grab the State law, sure they put numbers in some instead of commas or colons, and it doesn't really matter. The rules are pretty well laid out, as they are in the State, as to the kind of things you have to meet the criteria of on a variance to make it happen. The State law, by reading it, and we've done that ad nauseum through these -- last month or so, is to understand that they separated those major points. SHEA: Um-hum. RYAN: The very first point is, is there something on that lot outside of the normal TOWN OF FOUNTAIN HILLS Page 9 of 29 JUNE 15, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 9 of 29 topography, location, all the words they have in this statute, that is different than the neighborhood and doesn't meet normal standards for topography in Fountain Hills. We kind of don't care that Peoria is flat, right? SHEA: No, I get it, right. RYAN: So I understand your point. It is slanted. It's not unusual for Fountain Hills to have that. And what the law requires is that we are conforming to the wording of that law, both by the State and the Town. And we're doing it, it's pretty literal, they repeat it, actually, in the ordinance. So that everybody understands, there's got to be, number one, that something that is unusual about that lot, special circumstances in this particular case, that's why after we get the public testimony, I'm going to ask the panel if they think there is or isn't a special circumstance. I mean, each person has to make a -- we haven't talked about it, so -- we've been mostly talking about the law. And so that's what we're going to judge this on, is that very first thing, according to the statute. So that's what we're doing. And I understand it's a normal, obvious, human question to say, well, if the whole world's not doing the same thing you're doing while you do it, that's the will of the people of Fountain Hills and that's why we're here to adjudicate, essentially. SHEA: Thank you, Mr. Chair, I'm not looking to -- RYAN: No, no, I know you're not. You haven't done -- SHEA: -- I'm really not trying to compare Fountain Hills to any other town. RYAN: Yeah, I wouldn't -- I think that you're, every one of them is different. SHEA: I spend a lot of time (indiscernible) -- RYAN: I bet you do. And it puzzled us, too, a little bit about why there is that, but the fact that there is doesn't really change Fountain Hills -- SHEA: I'm not going to try to raise that -- RYAN: -- adjudication. SHEA: -- that point -- RYAN: Yeah. SHEA: What I am going to say is the entire process -- RYAN: Yeah. TOWN OF FOUNTAIN HILLS Page 10 of 29 JUNE 15, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 10 of 29 SHEA: -- for a variance -- RYAN: Um-hum. SHEA: -- by adding, conglomerating, or making all of the requirements on it -- it is, it's an interpretation, I'm not trying to -- RYAN: Um-hum. SHEA: -- argue your interpretation. RYAN: Um-hum, yeah. SHEA: I'm not trying to say it's wrong -- RYAN: Yeah. SHEA: -- on that stuff. I am -- sets back the entire process -- RYAN: Yeah. SHEA: -- of what a variance is. You're varying from an ordinance and that word, not varying from an ordinance, we're varying form multiple ordinances. RYAN: I understand what you're saying. SHEA: So -- RYAN: Yeah. I appreciate that. SHEA: (Undiscernible). SCHLUM: Thanks. Obviously, there's some neighbors here tonight again. And thank -- they're very nice. Some were out of town, but you know, all the neighbors are fine -- RYAN: They sure were last time, too. SCHLUM: -- that was nice to hear, because they'll enjoy the covered patio. RYAN: Yeah. SCHLUM: I don't think it matters, but maybe it can in the future someway through some change in the zoning or something, to where this is a patio cover. It's not like another bedroom or -- RYAN: Um-hum. SCHLUM: -- extension of a -- RYAN: Um-hum. SCHLUM: -- the property, the living, the finished area -- RYAN: Right. SCHLUM: -- inside the house. TOWN OF FOUNTAIN HILLS Page 11 of 29 JUNE 15, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 11 of 29 RYAN: Right. SCHLUM: The patio is already there, we want to have some shade so that we can, obviously, we're in Arizona, and can use the patio more and be comfortable. The lot shape, obviously, has that curve. So that probably impacts the setback as well. And then, obviously, just getting to a variance. If your hands are so tied to needing to have somebody that had a -- their rock slide removed part of their land, now they need a variance because of something happening, that just doesn't seem that there's a lot of wiggle room or ability to be objective -- RYAN: Right. SCHLUM: -- in giving a variance, if that's what you guys have learned as you may or may not (indiscernible) -- RYAN: No, I -- we've been doing -- I've been doing it almost ten years, Jay. I don't feel hamstrung. I think this group probably knows, I ask more questions about the law than most human beings. SCHLUM: Well, let me start with that. RYAN: Yeah. SCHLUM: Thank you for putting the time into look into this. RYAN: That's right. SCHLUM: I don't think -- because I know you're here to serve the Town and (indiscernible) -- RYAN: Well, we try to be fair, because again, as Carol has pointed out, probably every meeting we've been together, and for a long time. SCHLUM: Yes. RYAN: That we have immense empathy for the folks here. We're property owners, too, right? And we'd like our place to be perfect and if I -- but I understand sometimes why John, who probably feels the same way, he'd like to be Mr. Yes to everybody, has a job to do. That it is guided by the law. It's not really even a hamstrung situation. You don't feel like you're -- I have to do this, otherwise it could put five bots up here and run the thing. I think it's more like, we want to hear the testimony and we have allowed variances in the past. And I think tonight we're going to do what most Boards that I've studied over the TOWN OF FOUNTAIN HILLS Page 12 of 29 JUNE 15, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 12 of 29 last couple of years don't do, we're going to go through these things and we're going to answer each one. It isn't just one size fits all, that you can say, you know, if two of these out of the four, the law is, they all have to be there. That's the reading of the law by, really, any lawyer I've ever talked to, whether the legislature won or the Town won. So I just wanted that you guys understand the depth that we kind of dug into this to make sure that we are being fair. Because I think our history is to be very fair. And also to go through the rationale. Sometimes it's popular. Sometimes it's not. But I think we want to, the people of Fountain Hills, to understand we take this very seriously and we look at both sides very seriously and have our own disagreements with it, usually on this panel, in public, right? So that's kind of our mode of operating. And I think I'm actually very proud of the way that thoroughness kind of has consumed this Board. And I'm very happy with that. So we do the best we can at interpreting law. We go out and get lawyers and get opinions. Some of which, I'm sure Allen would tell you, we don't necessarily agree with it. That's okay. It's our call, you know, it's not Allen's call to make this judgment. And we take that seriously. And we consider all sides. So just so you know, that's how we conceive of our jobs up here. So let's -- SCHLUM: You've always had good people serving, so. RYAN: -- well, hopefully it is that -- SCHLUM: When I was on the Board, the Planning and Zoning Commission, '97, '98 until '03. For the longest time, we couldn't get past a cut that was more than ten feet. RYAN: Yeah. SCHLUM: Then we realized, well, we have hills here. RYAN: Yeah. SCHLUM: And the cut will never be seen -- RYAN: Yeah. SCHLUM: -- because they'll be a property there -- RYAN: Yeah. SCHLUM: -- rather than elevate the house, let's allow them to cut -- RYAN: Yeah. SCHLUM: -- and put in. So it evolves. We figure things out -- TOWN OF FOUNTAIN HILLS Page 13 of 29 JUNE 15, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 13 of 29 RYAN: It evolves. SCHLUM: -- as we go along. So perhaps -- RYAN: And you make a great point about patios not being an extension of room in the house, right? SCHLUM: -- maybe there's something that gets in there -- RYAN: And that needs to be considered. I mean, I'll make it the public record, this Board, I think, would easily agree with you and say the Town Council needs to understand that may be something you should bring up and talk about because it affects, probably quite a few people. SCHLUM: And then, if there's setback infringement -- RYAN: Right. SCHLUM: -- and is their ability to say, as a Board of Adjustment -- RYAN: Right. SCHLUM: -- well, they need some cover but we're not comfortable going that far, you know, would cutting it back three feet work? That would still cover the majority. I mean, are there options that way to discuss (indiscernible) -- RYAN: Well, there's some -- yeah, they have the leeway to do it. I think, when I was looking at your property, and I think the Board members would agree, there's an ability to build a patio cover out to a certain spot, right? I mean, you -- I think there -- SCHLUM: It's out two feet. RYAN: It, well, no because -- SCHLUM: It wasn't very high. RYAN: -- no, not -- SCHLUM: Two feet off of the -- from what I remember, John, it's like two feet off the dining room, which is the room that does sit out the -- RYAN: -- farthest out, right. But a lot of that coverage over uncovered area that sets back, right? SCHLUM: On what -- that covered area, oh, there is -- RYAN: Yeah. SCHLUM: -- there is a part that comes back, maybe nine feet. RYAN: Yeah, that's what -- TOWN OF FOUNTAIN HILLS Page 14 of 29 JUNE 15, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 14 of 29 SCHLUM: (Indiscernible) -- RYAN: -- I'm talking about. SCHLUM: -- would certainly be covered -- RYAN: Covered. SCHLUM: -- about 11 feet out -- RYAN: Right. Then you get two feet on top of that. So that was my understanding. So I think it's -- I don't know if it's worth getting into that, but there is -- you could have a patio cover to a certain spot. It's not like the whole is eliminated. SCHLUM: Exactly. RYAN: Okay. SCHLUM: That we understand. But thanks for serving and thanks for looking into -- RYAN: Thank you for that. SCHLUM: -- into it further and -- RYAN: I appreciate that. SCHLUM: -- we request a variance. RYAN: I guess -- [LAUGHTER] RYAN: -- no, no. There's no doubt in my mind. UNIDENTIFIED SPEAKER: (Indiscernible). RYAN: Yeah, well, he's good at it, too. So given -- are there any other comments from the public? UNIDENTIFIED SPEAKER: I will. RYAN: Sure, sure, you bet. Come on up. ANDREAE: Bear with me just a second, I'm at -- I did want to reiterate, I feel like if I did come up here as a -- I loved it, Scott, I love living here. I've only been here for five years. RYAN: Yeah. ANDREAE: I hope to die here. Not anytime soon. RYAN: No, I -- ANDREAE: But I feel really frustrated as a resident of this town, that the laws are like, Jay was saying, are so stringent. I feel like there's no creativity for homeowners, TOWN OF FOUNTAIN HILLS Page 15 of 29 JUNE 15, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 15 of 29 appropriate creativity to do beautiful things to their home. Our hands are tied. And then for those of us that live in the NPOA, we kind of get a little bit of a double whammy there. And especially in our area where we have a neighbor who loves to rat on us. That's not very professional. Tell the NPOA on us about everything that we do. So it's frustrating. I wanted to come up here and share with you, maybe Mr. Wesley, that we looked at making some changes. Like a 20-foot setback, it's pretty substantial. How do we, like, adjust that a little bit, you know. I'm sorry that this doesn't have (indiscernible), but I do have a question for Mr. Wesley. I had brought up my wall -- RYAN: You got to, our rules are, you have to address them to the chair, though. Yeah. ANDREAE: -- Okay. Mr. Ryan -- RYAN: Thank you. ANDREAE: -- I mean, you can maybe ask Mr. Wesley. RYAN: Yeah, I will. ANDREAE: I brought up my ten-foot wall in my back yard at the last meeting. RYAN: Um-hum. ANDREAE: And you guys weren't aware of that wall. Which means that no variance or adjustment was requested for it. RYAN: Um. ANDREAE: I would like to know -- I have a great friend here who's trying to go about things the right way. RYAN: Um-hum. ANDREAE: And our laws only help people that go -- or our regulations, I should say, that are going about it the wrong way, like, do it without coming before, you know, putting permits and getting it done that way. RYAN: Right. ANDREAE: They can successfully complete their projects without any problems. RYAN: Um-hum. ANDREAE: So my question is, if the wall in my back yard did not come before the Board of Adjustments -- RYAN: Um-hum. TOWN OF FOUNTAIN HILLS Page 16 of 29 JUNE 15, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 16 of 29 ANDREAE: -- then how was it just approved by the Town? RYAN: Well, I think the real -- ANDREAE: With the new (indiscernible) -- RYAN: -- question is, was it approved by the Town? But John, do you want -- do you have a response to that or -- and I'm not exactly sure where the property you're talking about, but I think -- ANDREAE: It's right in the neighborhood. RYAN: -- so you're asking, since you have a wall that you think may not conform to code -- UNIDENTIFIED SPEAKER: (Indiscernible). RYAN: -- why can't -- well, I don't, but I -- but why can't someone else in the neighborhood -- ANDREAE: Well my question (indiscernible) -- RYAN: -- do that, too, or -- ANDREAE: -- is it the house next door, which was a new build, was allowed to build a ten-foot wall on my side of the property -- RYAN: -- Yeah. ANDREAE: -- because they built the foundation out so far. RYAN: Um-hum. UNIDENTIFIED SPEAKER: And yet Jay and Denise cannot have a patio cover put on the front of their house -- RYAN: No, I understand your question. John, do you have a -- WESLEY: (Indiscernible). QUIST: Chairman, I just want to pipe in to say that under open meeting law, we have a case that's before the Board for decision and discussion today. As far as discussing other cases or other situations, the Board could be moving away from that agendized item. So I'd caution, just to be careful -- RYAN: Allen, Allen, we -- last meeting we had a lot of comments about properties that were coming in to -- and we asked John to check those out. So that's not an unprecedented question she's asking. So I'm just going to overrule that. Finish your question -- John, do you have an answer for that? TOWN OF FOUNTAIN HILLS Page 17 of 29 JUNE 15, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 17 of 29 WESLEY: So Chair, I looked at it briefly, but no, I don't really have a good answer for it. RYAN: Okay. WESLEY: There was no variance for it. I was pretty sure which property she was talking about, but you never actually said the address so I was guessing just a little bit exactly where the issue was -- ANDREAE: I told someone, yes. WESLEY: So okay. UNIDENTIFIED SPEAKER: I did. WESLEY: So anyway, I will -- I'll visit with her afterward and we can -- RYAN: Okay. That's fine. WESLEY: -- (indiscernible). RYAN: If you can supply her with an answer, that's great. ANDREAE: I would love to have an answer because I just feel, like -- RYAN: No. It's a relevant question -- ANDREAE: -- (indiscernible) -- RYAN: -- now, because -- ANDREAE: -- (indiscernible) -- RYAN: -- it was brought up earlier about people's -- ANDREAE: -- yes -- RYAN: -- property encroaching -- UNIDENTIFIED SPEAKER: -- (indiscernible) -- RYAN: Yeah. ANDREAE: -- really, the only other thing that I want to say to you guys, publicly, not necessarily to you guys, but I'm going to make it public. RYAN: Sure. ANDREAE: Jay and Denise, my husband and I are more than happy to help purchase bright blue canopies that I'm quite certain we can anchor down, not permanently, and they'll look really good on the front of your yard. RYAN: Okay. Thank you. UNIDENTIFIED SPEAKER: [LAUGHTER}. TOWN OF FOUNTAIN HILLS Page 18 of 29 JUNE 15, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 18 of 29 RYAN: Thank you for that. ANDREAE: Thanks for your time. RYAN: I appreciate -- your welcome. Any other comments? So let's kind of get to the variance questions, then. So would someone in the panel make a motion on number one, and Carol, would you read it again for me, just so the audience has the exact wording of what we're -- PERICA: The first condition is, "There exists 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." RYAN: And a motion that does or does not apply in this case. QUIST: Mr. Chairman, I would just reiterate or clarify, are you seeking a motion or a discussion on that -- RYAN: A motion. QUIST: Because, typically, that the variance is granted or denied as a package, right? And that -- RYAN: We got to get a motion before but we go through them individually here, Allen, and that's what we're going to do tonight. QUIST: Oh, that's been this Board's practice -- RYAN: Absolutely, for a decade or more -- PERICA: No. We discuss them individually. RYAN: We do, but we go through them as -- each as an entity. We don't make a variance decision and then describe, he's saying, make a variance decision and describe each one of the conditions. Yes, sir. WESLEY: Mr. Chair, I would maybe agree a little more with the Vice Chair. They've been discussed and you've had some consensus as to whether or not you find that, whether there's a special circumstance as you find what this is, you state what it is, if you don't find it, you say, we don't find that, and you move on without actually making amotion. RYAN: Right. WESLEY: You'll -- don't make a motion -- RYAN: So -- TOWN OF FOUNTAIN HILLS Page 19 of 29 JUNE 15, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 19 of 29 WESLEY: -- until the end. RYAN: I will ask the question, does there need to be more discussion about each of these four variance questions? HANSEN: May I ask a question? RYAN: Sure. HANSEN: At first, let me say that this sounds like a wildly popular project within the neighborhood and I appreciate that. You know, if I was a neighbor, I'd probably want it as well. UNIDENTIFIED SPEAKER: Yeah. HANSEN: Second, I think we went into executive session and I believe that the guidance to us was pretty clear, that all four of these different questions need to be answered yes in order to allow the variance, or permit the variance -- UNIDENTIFIED SPEAKER: Right. HANSEN: -- should the Board choose so. RYAN: Um-hum. HANSEN: Am I -- that was my interpretation of the executive session. And third, you know, it's been a while, it's been a month since the applicant came up here and, you know, answered the question, what special circumstances or conditions regarding the property, you know, exist. Is it okay if we have them up there and have their side, real quick, with regards to what those circumstances are. Because we're going to be asked to answer that question again. And, you know, I want to give them a chance to have their say one more time, just so it's clear -- RYAN: Sure, sure. HANSEN: Is that -- do you want to do that? Is that okay? RYAN: Yeah, absolutely. SHEA: So -- RYAN: And again, just let me, we're going to be asked these four questions and it doesn't matter what we think of the project, it's, we got -- it's a yes or no question. UNIDENTIFIED SPEAKER: (Indiscernible) -- UNIDENTIFIED SPEAKER: Yeah. TOWN OF FOUNTAIN HILLS Page 20 of 29 JUNE 15, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 20 of 29 SHEA: So the original package on the original application -- RYAN: Um-hum. SHEA: -- assigned criteria to all four of these as we went in. Any -- I may need help because I don't have the original package with me right now. John, is that in your package? Where we actually -- PERICA: Would -- SHEA: -- in writing, listed all of these points -- PERICA: Mr. Chairman, would you like me to read each one and they can respond to each one as I read them? RYAN: I think he just found it. PERICA: Oh, okay. SHEA: Okay. Topography and the size of the lot. The lot is narrow -- is this part of their package, John? Did this go in with theirs? UNIDENTIFIED SPEAKER: (Indiscernible). SHEA: Okay. With seven-foot side setbacks so that the house is longer -- it's narrow and we've already talked about, well, we believe the topography is -- and it -- and we believe it's different than what would be standard on that type of a zoning area. The covering would be sloped to the -- severely to the southeast, adding a cover to the existing -- for over the patio, would enhance their quality of life for the majority of the year round because of the sun coming in and beating in the windows and doing -- it would create a shade structure, energy efficient leads, everything else. It would also, you can't tell this as long you're a little bit light skinned, would help with the -- being able to enjoy their life -- and do it. You have to excuse me, it's in letter form. The -- at the highest point -- so unexisting [sic] plan right now. And that's one of the reasons there was talk about what was going to happen if -- and my understanding, the Board has negotiated in the past for some form of it and minor impediments on it. The largest point, it adds an additional 11.7 feet of additional patio cover on the front of the house into the setback. In other words, some of the covering would not be in the setback. Some of it would be, the front corner. If you've all gone and looked at the lot, TOWN OF FOUNTAIN HILLS Page 21 of 29 JUNE 15, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 21 of 29 facing the house, the right-hand side as the patio comes out would be covered there. And that might be an option if you decide so to baud that back off and bring it a little further out of the setback on it. So the sun, the radiance, the house, what am I missing, Jay? SCHLUM: I think if, geographically, you're looking at something specifically related to that first question, that it can be unique to our home versus others in the neighborhood, not all, is that our patio where we gather is on the south side and the south side is where you really need some patio cover. There's no real other place where our neighbors can gather easily to meet. It may not be substantial, but there is a difference. Where our neighbors to the side meet easily more in their back yard. And across the street, they're in their back yard but they're on the north side and so on and so forth. So it's -- that's one element that comes to mind. Obviously, Arizona, you're looking for shade because you don't want to be in the sun that can damage you. It also does provide benefit with that, to the windows and to the inside of the structure as well. But I guess that's a geographic function that might fit within that question. SHEA: There was also one more application. I don't know why it's not -- that isn't the letter that I was referencing. We actually listed five items specific to this in opposition to the variance which isn't in the package at all where it is right now so. If you can read the to me, I can pretty much give them back to you, I apologize. PERICA: I guess he's addressed the first. The second one is "That the above special circumstances or conditions are preexisting and not created or self-imposed by the owner or applicant." SHEA: So in that particular instance, if you look at where the lot is located in the general topography, there's only one spot on the lot to put a house. And you can only put the front door facing Fairway Court. You can't put it on the side to shade it or move it around to the other side. So the zoning ordinance requires that you actually have your front door facing the front of your street. So there isn't any other place to put that patio on it. As you look at the backyard, the way the house is structured, you'd have to go out to the very northeast corner of the house, the bedroom side of the house, to put a patio on. You TOWN OF FOUNTAIN HILLS Page 22 of 29 JUNE 15, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 22 of 29 couldn't connect it to the living spaces on the house because it's -- the garage is in the back, the lot drops dramatically. And the way the house is situated with the front yard, it's centrally located and it kind of pie-shapes back out. So -- PERICA: So if I may just say it -- intrude over here so that you're -- what you're saying is that the special circumstances or conditions are preexisting. The size of the lot and where the house is located, that's preexisting. SHEA: Yeah. It can't be changed. It -- there's no other spot on this lot to put that house and that front door. PERICA: Okay. The third is, "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". SHEA: So for seven months out of the year, the Schlum's can't use their front patio because there isn't any cover over it because it's a southwest-facing patio and we live in the desert and it's very hot. PERICA: Okay. The last one is, "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." SHEA: That one -- everybody in this entire neighborhood is in support of this variance. I've -- I've been doing this a long time and I never seen 100 percent, ever, on any of this. There's usually somebody that's pop up (audio interference). SCHLUM: But I do have a lot of dirt on them. [LAUGHTER]. SCHLUM: But the -- that question should overrule all the other questions. But seriously, yeah, that one without question. The others, you can find some things here and there. And obviously it's, you know, your decision and you got to make up your own mind. But as far as the third one about the self -- what was -- how was it worded. UNIDENTIFIED SPEAKER: Self-imposed. SCHLUM: Self-imposed, obviously, we had a patio out in the front and now the front is moved out further to the front where now you can't have a patio cover. A patio cover is definitely necessary. And I'm just hoping there's some way to consider a patio cover versus an addition to a house. A finished area that, obviously is, you know, completely TOWN OF FOUNTAIN HILLS Page 23 of 29 JUNE 15, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 23 of 29 covered. And (indiscernible) in essence, out on a patio where this is (indiscernible) And I wanted to mention, that comes up with a couple of posts. So it's all -- obviously doesn't impact people looking through, (indiscernible) moves, it's not a major addition to the house. But thanks for going through those, and then, again, thank you. UNIDENTIFIED SPEAKER: Sorry, I didn't -- I wanted to appreciate -- SHEA: Yeah. We did -- we did answer those (audio interference). I don't know why SCHLUM: Yeah, I think I recall seeing it was in the application, if I remember right. RYAN: Yes, we had a copy of in the package, yeah. SCHLUM: Okay, good. UNIDENTIFIED SPEAKER: I think it's (indiscernible). SCHLUM: Thanks. PERICA: Before we get a motion, can I get the members' feelings on all of these points? RYAN: So we'll have a discussion on each one. Let's go through that and then we have the discussion, then we'll vote on each one, yeah. So any other comments on the first one which have to do with the special circumstances or conditions on the land? Any questions? No, hearing none, anybody want to make a motion on this particular variance checklist? UNIDENTIFIED SPEAKER: Chairman, can I ask a question? RYAN: Sure, sure. SEHMAN: I'd -- I would actually prefer to look at the variance as a whole, considering all four of the criteria, rather than sort of itemizing them. And If I may, I would -- I think I would just make a couple of comments towards that -- RYAN: Sure. SEHMAN: -- whole if -- if that's acceptable. It's a tough part of this Board, which is sort of separating out a couple of things, which is, this sounds like a fantastic project that would benefit you and the neighborhood, potentially. Separating that and separating another issue, which is that you're talking about making changes to some of these rules, a couple of you have, which potentially might not be a bad idea. It's unfortunately not something that this Board does. This Board can only rule on the guidelines that we have currently. And with those -- with that being the case, if TOWN OF FOUNTAIN HILLS Page 24 of 29 JUNE 15, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 24 of 29 we're going through the items, the first three, there are the amenities and then the benefits that you're talking about are positive. But I don't think that they actually qualify the first three points of the variance, the criteria. The fourth one, the neighborhood turning out is -- it is uncommon. Like, usually, it's just the opposite. People are coming to dive bomb their neighbors. So it sounds like a great neighborhood. I would -- but the first three, I -- in my opinion, looking at what's presented, did not meet the criteria of a variance. RYAN: Okay. I think the tradition of this board, as I pointed out earlier, and I'm willing to change if you guys want to vote that way, is to go through these four criteria so the audience understands which criteria were weighing on us and at that point, either grant or not grant the variance. Is that acceptable? Or we can certainly change our practice. SEHMAN: Chairman, it's acceptable, but we won't be voting on each one separate, I don't -- RYAN: Is -- SEHMAN: -- believe -- RYAN: I think we just comment on them. SEHMAN: Sure. Okay, thank you. RYAN: And then at the end, we can go down the list if somebody requests it. But I think we need -- I think it's fair to the audience to let them know our discussion on each of those, which essentially would be our opinion. I think that's fair, because they spent a lot of time presenting that. All right, so in the first -- I'll go back to the first question again. On the relevance of the circumstances and conditions on the land, any further discussion on that? No. And the second one is, "Are the above special circumstances or conditions preexisting and are created or self-imposed by the owner or the applicant?" Any discussion? PERICA: Well, the circumstances or conditions, I believe they are preexisting with, basically we're talking about the size of the lot, are we not? And they were not created by the owner or the applicant. RYAN: All right. Any other comments on that preexisting conditions -- HANSEN: Chair. RYAN: Yes. TOWN OF FOUNTAIN HILLS Page 25 of 29 JUNE 15, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 25 of 29 HANSEN: If I may. RYAN: Yeah. HANSEN: When answering this one, I mean, do we consider the addition to the house in 2007, 2008? Do we consider that, you know, self-imposed by, you know, them building the patio off that addition? RYAN: Um-hum. HANSEN: And I think that's a tough question to answer because is that the special circumstance that we are looking at? Or is the special circumstance the location of the house as it is and we're not looking at the addition of the build -- RYAN: Um-hum. HANSEN: -- or are we looking at the grading, is that the special circumstance which isn't necessarily tied to the addition to the house, so that wouldn't be a self-imposed special circumstance. So that one is a little bit tough to -- WESLEY: Chair if you don't mind. RYAN: No, no. Please, John. WESLEY: Seems to me that the first thing is, did you find any special circumstances? And I haven't heard him say -- by saying they found any special circumstances, if you haven't found any special circumstances, there's no need to consider if they were self- imposed or not because there aren't any. RYAN: Um-hum. WESLEY: Thank you. RYAN: I would agree with you, John. So let's, I'm just -- at this point, we're just discussing, though. We're not voting yet. So I'm going to -- that was asked by the Board. I think I'm going to allow that to -- the discussion to continue and then we'll vote on the -- I agree with you that, because the rule is all four have to comply, that once you don't met -- but we haven't voted on the first one. As it was requested, we discuss all of them before we vote on any of them. So the next one down is, "Is the variance necessary for the preservation of substantial rights?" So I'm just asking for discussion, please, not a vote. Is there any discussion on that? No. And then the last is, "Will the authorization of the variance be materially detrimental to TOWN OF FOUNTAIN HILLS Page 26 of 29 JUNE 15, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 26 of 29 persons residing in the neighborhood," et cetera, et cetera. Any discussion on that? I think we all kind of applaud the neighborhood for coming out here and expressing themselves. All right. So now, if it's okay with everybody, let's vote on the different -- let's vote on the variance, based on the fact that, well, that's not -- let's go through -- let's go through and just judge on the variance requirements here. The first one is on special circumstances. Does this Board think there are special circumstances presented that are -- that conform to the requirement on this variance criteria? PERICA: That's a tough one. I don't believe there are special circumstances that -- regarding the land, building, or use -- RYAN: Okay. PERICA: -- that does not apply to the properties in the district. I don't think the location and the sun coming in at certain times of day is a special circumstance. RYAN: Okay. Thank you. PERICA: So I would, I would vote that there are not special circumstances or conditions. RYAN: Okay. Are there any other comments? Having no other comments -- SMITH: I would have to agree with Vice Chair. RYAN: Okay. Thank you, Jeremy. So does someone make a motion on this issue, that that is not compliant -- not in compliant -- the request is not in compliance with having a variance for this? PERICA: No you -- QUIST: Mr. Chair -- PERICA: -- vote on the whole thing. QUIST: I guess I'm not familiar with your past practices. This is my first meeting so I'm trying to get up to speed. But typically what I've seen is that Board of Adjustments have one vote and that motion will layout the criteria that it's satisfied or not satisfied. There'll be reference to those. For example, if the motion was to approve the variance, it would be -- RYAN: All right. Let's do it your way, Counselor. Is the Board -- QUIST: And Chairman, I don't want to step on your toes, but that -- TOWN OF FOUNTAIN HILLS Page 27 of 29 JUNE 15, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 27 of 29 RYAN: -- you're not. Is the Board in favor of just voting on this variance and explaining our four reasons or -- PERICA: Yes. RYAN: -- do you want to go through the reasons and then vote on the variance? PERICA: Let's vote and then explain -- RYAN: Fine. PERICA: -- why. RYAN: Is there a motion to accept or deny this variance? PERICA: I'll make a motion to deny the variance based on the first criteria, which is that there do not exist special circumstances or conditions regarding the land. On the second one, "The above special circumstances or conditions are preexisting there and they're not created or self-imposed," they were not self-imposed by the owner, so that's not a negative, so to speak. And the third one, the variance is not necessary for the preservation of substantial property rights. The fourth one, we -- I think it'd be authorizing the variance will not materially detrimental to persons residing or working in the vicinity. It will not be detrimental to anybody in the area or the neighborhood or the public welfare. RYAN: Okay. PERICA: That's what I base my -- RYAN: Is there a second to that motion to deny? QUIST: Just clarify, Mr. Chairman, the motion then is to deny based on criteria one and criteria one only, not being satisfied -- RYAN: I think Carol just went -- PERICA: Okay, I'll -- RYAN: -- through all four of them, Counselor. PERICA: I will redo -- QUIST: I'm just restating -- PERICA: I understand. RYAN: I understand, Counselor. Listen, Counselor, if you could do me a favor. We need to finish this hearing off. I think Carol went through all four reasons that she would TOWN OF FOUNTAIN HILLS Page 28 of 29 JUNE 15, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 28 of 29 deny this variance. That's what I understood her to say. My question to this panel is, would you -- does anyone have a problem with that or have an opposition or would support denying this variance? And then you have, at that point, the right, whoever that member is, to kind of go down those four issues, just like Carol did. So does someone want to second her motion to deny the variance? SEHMAN: I'll second the motion to deny the variance based on that the Board has not found that point one has been met because that -- because there are not special circumstances that we found. The fact that they are -- point number two does not apply -- RYAN: That's fine. SEHMAN: -- point number three, I believe it's the finding of the Board that the variance, that it's not necessary to preserve substantial property rights; however, it would be that the Board, the finding of the Board that the variance would not -- if the variance were granted, that it would not be material -- detrimental to any of the persons currently residing in the vicinity. RYAN: Okay. Good. Thank you for the second. Now, would other members like to express their votes individually and then rationalize them with the four points before I ask for a vote by the Board of Adjustment on denying the variance, which is what the motion is? You good? SEHMAN: Thank you. RYAN: Okay. So then let's have a vote on the denial of variance. Can you call the roll? WOODWARD: Board member Sehman. SEHMAN: I apologize, what -- RYAN: What would -- the motion is to deny the variance. So it's a yes or no question. Are you voting to deny the variance? SEHMAN: I am voting to deny the variance. RYAN: Okay. WOODWARD: Board member Smith? SMITH: I am voting to deny, yes. WOODWARD: Board member Hansen. HANSEN: Yes. WOODWARD: Board member -- Vice Chairman Perica. TOWN OF FOUNTAIN HILLS Page 29 of 29 JUNE 15, 2023 FOUNTAIN HILLS BOARD OF ADJUSTMENT Page 29 of 29 PERICA: I vote to deny the variance. WOODWARD: Chairman Ryan. RYAN: Yes. WOODWARD: Five, zero. PERICA: May I add something? RYAN: Sure. PERICA: I think we all appreciate the fact that you came before the Board rather than just doing the project. So I have to thank you for that. And when we deny a project, it's not because we want to or agree necessarily. I see what you're doing. I think it would be a lovely project. It just does not meet our criteria. RYAN: Any other comments? I just want to thank you guys from the chair for coming out and expressing your views. I think you were civil, courteous, and had a lot of knowledge imparted to this group, and I appreciate that. So without further ado, I adjourn this meeting of the Board of Adjustment. [MEETING ADJOURNED AT 6:25 P.M.] ITEM 5. TOWN OF FOUNTAIN HILLS STAFF REPORT    Meeting Date: 04/17/2025 Meeting Type: Board of Adjustment Agenda Type: Submitting Department: Development Services Prepared by: Paula Woodward, Executive Assistant Staff Contact Information: Paula Woodward, Executive Assistant Request to Board of Adjustment (Agenda Language):   CONSIDERATION AND POSSIBLE ACTION of Appointing a Chairperson to the Board of Adjustment.  Staff Summary (Background) Members of each board and commission shall elect a chair and vice chair from among its own members. Each chair and vice chair shall serve for one year and until such time as a successor is elected. The chair shall preside at all meetings and exercise all the usual rights, duties and prerogatives of the head of any similar organization. The vice chair shall perform the duties of the chair in the chair’s absence or disability. Vacancies created by any cause shall be filled for the unexpired term by a new election. (19-15, Added, 09/03/2019) The Fountain Hills Town Code is current through Ordinance 20-27, passed December 1, 2020. Disclaimer: The town clerk’s office has the official version of the Fountain Hills Town Code. Users should contact the town clerk’s office for ordinances passed subsequent to the ordinance cited above. Related Ordinance, Policy or Guiding Principle Risk Analysis Recommendation(s) by Board(s) or Commission(s) Staff Recommendation(s) SUGGESTED MOTION MOVE to appoint _________ to serve as Chairperson for one year, effective May 1, 2025 through May 31, 2026. Form Review Form Started By: Paula Woodward Started On: 03/12/2025 05:02 PM Final Approval Date: 03/12/2025  ITEM 6. TOWN OF FOUNTAIN HILLS STAFF REPORT    Meeting Date: 04/17/2025 Meeting Type: Board of Adjustment Agenda Type: Submitting Department: Development Services Prepared by: Paula Woodward, Executive Assistant Staff Contact Information: Paula Woodward, Executive Assistant Request to Board of Adjustment (Agenda Language):  CONSIDERATION AND POSSIBLE ACTION: Appointing a Vice Chairperson to the Board of Adjustment.  Staff Summary (Background) Members of each board and commission shall elect a chair and vice chair from among its own members. Each chair and vice chair shall serve for one year and until such time as a successor is elected. The chair shall preside at all meetings and exercise all the usual rights, duties and prerogatives of the head of any similar organization. The vice chair shall perform the duties of the chair in the chair’s absence or disability. Vacancies created by any cause shall be filled for the unexpired term by a new election. (19-15, Added, 09/03/2019) The Fountain Hills Town Code is current through Ordinance 20-27, passed December 1, 2020. Disclaimer: The town clerk’s office has the official version of the Fountain Hills Town Code. Users should contact the town clerk’s office for ordinances passed subsequent to the ordinance cited above.  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) N/A SUGGESTED MOTION MOVE to appoint _________ to serve as Vice Chairperson for one year, effective May 1, 2025 through MOVE to appoint _________ to serve as Vice Chairperson for one year, effective May 1, 2025 through May 31, 2026. Form Review Form Started By: Paula Woodward Started On: 03/12/2025 05:02 PM Final Approval Date: 03/12/2025  ITEM 7. TOWN OF FOUNTAIN HILLS STAFF REPORT    Meeting Date: 04/17/2025 Meeting Type: Board of Adjustment 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 (Agenda Language):  REVIEW the duties and role of the Board of Adjustment and Section 2.07, Appeals and Variances. Staff Summary (Background) Since the last meeting of the Board, two new members have been appointed by the Town Council.  This report reviews the current ordinance and helps orient the new members of the Board. Article 2A-2 of the Town Code establishes the Board of Adjustment along with its various duties and responsibilities.  It is a five-member board with members serving staggered three-year terms.  Three members constitute a quorum of the Board. As listed in Section 2A-2-4 of the Town Code, the duties of the Board are:  A. It shall be the duty of the Board of Adjustment to hear appeals concerning the interpretation or administration of the zoning code made by the zoning administrator. The Board may reverse, affirm, wholly or partially or modify the order, requirement or decision of the zoning administrator appealed from, and make such order, requirement, decision or determination as necessary. 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 subsection 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. self-imposed by the property owner. Decisions of the Board are final, but may be appealed to the Arizona Superior Court.  As a quasi-judicial body, the members of the Board cannot be lobbied outside of a hearing from any side of an issue coming before the Board. Also, since the last time the Board met to review and act on a request for a variance, the section of the Zoning Ordinance providing for appeals and variances has been updated.  A copy of the ordinance as currently adopted is attached for your review.  Overview of Section 2.07, Appeals and Variances A. Purpose.  This section establishes the purpose for this section of the Ordinance.  The purposes are to provide the procedures for applying for an appeal to the Board, appeals from the Board, and for variances. B. Appeals to the Board of Adjustment.  The Town's Zoning Administrator is charged with interpreting, applying, and implementing the Zoning Ordinance.  There can be times when a person disagrees with the Zoning Administrator's actions.  When that happens, the aggrieved individual can choose to appeal the decision of the Zoning Administrator to the Board.  Section 2.07 B. provides the requirements and process to be followed to bring an appeal to the Board of Adjustment for consideration.  After hearing from the staff and interested parties, the Board then makes a determination as to the application of the code.  To the current staff's knowledge, there have been no appeals in the last ten years. C. Variances.  The Zoning Ordinance establishes a wide range of standards and requirements for development and use of property.  There can be times when the standards or requirements make a property difficult, if not impossible, to develop.  When these situations occur, the property owner can apply to the Board for consideration and approval of a variance to the ordinance requirements.  This is stated in Section 2.07 C. 1. as follows:  Any aggrieved person may apply 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. The requirements and process for review and consideration of a variance are provided in this section.  The Town generally averages about one variance application a year. Section 2.07 C. 6. lists the findings that must be made by the Board in order to approve a variance.  In the previous ordinance the required findings were not listed clearly, which led to some discussion and debate on the part of the Board when considering variances.  The requirement is that all four of the tests must be met in order to approve a variance. The required findings as listed in the ordinance are: 6. Findings. A. A variance shall not be granted unless the Board finds sufficient evidence to make a determination that: I. There are special circumstances applicable to the property, including its size, shape, topography, location, or surroundings; and II. Such special circumstances are preexisting and not created by the property owner or appellant; and III. The strict application of the Zoning Ordinance will deprive such property of privileges enjoyed by other property of the same classification in the same zoning district; and IV. Any variance granted will ensure 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. B. 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. D. Appeals from the Board.  When a person does not agree with the findings and determination of the Board, they can appeal the Board's decision to Superior Court.  This section sets out the process for those appeals.     Related Ordinance, Policy or Guiding Principle Town Code Article 2A-2 Zoning Ordinance Section 2.07  Risk Analysis N/A Recommendation(s) by Board(s) or Commission(s) N/A Staff Recommendation(s) N/A SUGGESTED MOTION This is a discussion item, no motions will be made or action taken. Attachments Zoning Ordinance Section 2.07  Form Review Inbox Reviewed By Date Development Services Director (Originator)John Wesley 04/07/2025 03:17 PM Form Started By: John Wesley Started On: 03/31/2025 10:18 AM Final Approval Date: 04/07/2025  Section 2.07 Appeals and Variances A. Purpose. Appeals of decisions by an administrative officer of the Town in the application of this section may be filed by the applicant, by the owner of property, or by any other person aggrieved by a decision under the provisions of this section and who has standing to appeal pursuant to state law. Variances are authorized as set forth in A.R.S. § 9-462.06 and as set forth in this section. B. Appeals to the Board of Adjustment. The Board of Adjustment may hear appeals made by any person who is aggrieved by the Zoning Administrator’s interpretation or administration of this section. 1. Application. A. Complete Application. Appeals shall be filed electronically on the Town’s website using the process established by the Director for such applications within fifteen (15) days after the action appealed from. B. The application shall include a narrative statement specifying the requested appeal and the grounds therefor. C. Filing Fee. The application shall be accompanied by payment of a filing fee in an amount established by a schedule adopted by resolution of the Council and filed in the offices of the Town Clerk. No part of the filing fee shall be returnable. Payment of the filing fee may be waived when the petitioner is the Town, school district, special purpose district, county, state or federal government. 2. Stay of Proceedings. The appeal stays all proceedings in the matter appealed from, unless the Zoning Administrator certifies to the Board that, by reason of the facts stated in the certificate, a stay would, in his opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed, except by a restraining order granted by the Board, on application and notice to the Zoning Administrator, or by a court of record. 3. Review. A. Determination of Complete Application. Before initiating review, the Development Services Director, or designee, shall review the submittal to determine if it is complete and meets the requirements of this section. Applicants will be notified of missing or incomplete application items. Once an application has been determined to be complete, the applicant will be notified to pay the filing fee. When the fee has been received, staff will begin review of the application. B. Staff Review. Staff will conduct a review and analysis of the appeal and will seek additional information and clarification from the applicant as necessary to prepare the appeal for consideration by the Board. Staff will inform the applicant of any revisions needed to bring the application into compliance with Town requirements. C. Following notice requirements, the appeal will be scheduled for hearing by the Board of Adjustment at their next available meeting. Ch. 2 Procedures | Fountain Hills Zoning Ordinance Page 1 of 5 The Fountain Hills Zoning Ordinance is current through Ordinance 24-20, passed November 19, 2024. 4. Notice. Notice of the hearing shall be made by publishing a notice thereof in the official newspaper of the Town and, if applicable, 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. 5. Hearing. A. The Development Services Director shall fix a reasonable time for the hearing of the appeal and shall give notice in accordance with subsection (B)(4) of this section. B. Any party may appear at the hearing in person or by agent or attorney. Parties shall have the right to present their case by oral or documentary evidence, to submit rebuttal evidence, and to conduct such inquiry of facts of opposing parties through the Chairperson. The Chairperson may limit or prevent questions or inquiries that are irrelevant or inappropriate. The Board shall, as a matter of policy, provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence and in furtherance of this policy may limit cross-examination. C. The Board may reverse or affirm, wholly or partly, or modify the order, requirement or decision of the Zoning Administrator or other staff members, appealed from and make such order, requirement, decision or determination, as it may deem necessary. C. Variance. 1. Purpose. Any aggrieved person may apply 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. Nothing herein contained shall be construed to empower the Board to change the terms of this section, to authorize uses which violate any other Town ordinance, to effect changes in the zoning map, or to add to or change the uses permitted in any zoning district. 2. Application. A. Application. Applications for a variance shall be filed electronically on the Town’s website by an owner of real property impacted by the application of the Zoning Ordinance using the process established by the Director for such applications. All such applications shall include the information required in this section. B. Project Narrative. A written statement which includes: I. A narrative describing: (1) The existing and proposed use of the property; (2) The Zoning Ordinance provision that prohibits the desired development; Ch. 2 Procedures | Fountain Hills Zoning Ordinance Page 2 of 5 The Fountain Hills Zoning Ordinance is current through Ordinance 24-20, passed November 19, 2024. (3) The hardships that will occur if a variance is not granted; and (4) The relief sought by the variance. II. A map or other illustration or documentation showing the nature of the property, the proposed development and/or other conditions justifying the variance request. C. A list of names and addresses for all property owners within three hundred (300) feet of the exterior boundaries of the property for which an application is made. D. Filing Fee. The application shall be accompanied by payment of a filing fee in an amount established by a schedule adopted by resolution of the Council and filed in the offices of the Town Clerk. No part of the filing fee shall be returnable. Payment of filing fee shall be waived when the change is initiated by the Council or the Commission or when the applicant is the Town, school district, special purpose district, county, state or federal government. 3. Review. A. Determination of Complete Application. Before initiating review, the Development Services Director, or designee, shall review the submittal to determine if it is complete and meets the requirements of this section. Applicants will be notified of missing or incomplete application items. Once an application has been determined to be complete, the applicant will be notified to pay the filing fee. When the fee has been received, staff will begin review of the application. B. Staff Review. Staff will conduct a review and analysis of the proposed variance and development and will seek additional information and clarification from the applicant as necessary to prepare a report and recommendation to the Board of Adjustment. C. Following notice requirements, the variance will be scheduled for hearing by the Board of Adjustment. 4. Notice. 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. 5. Hearing. A. The Development Services Director shall fix a reasonable time for the hearing of the variance and shall give notice in accordance with subsection (C)(4) of this section. B. Any party may appear at the hearing in person or by agent or attorney. Parties shall have the right to present their case by oral or documentary evidence, to submit rebuttal evidence, and to conduct such inquiry of facts of opposing parties through the Chairperson. The Chairperson may limit or prevent questions or inquiries that are irrelevant or inappropriate. The Board shall, as a matter of policy, provide for the exclusion of irrelevant, immaterial or unduly repetitious evidence and in furtherance of this policy may limit cross-examination. Ch. 2 Procedures | Fountain Hills Zoning Ordinance Page 3 of 5 The Fountain Hills Zoning Ordinance is current through Ordinance 24-20, passed November 19, 2024. 6. Findings. A. A variance shall not be granted unless the Board finds sufficient evidence to make a determination that: I. There are special circumstances applicable to the property, including its size, shape, topography, location, or surroundings; and II. Such special circumstances are preexisting and not created by the property owner or appellant; and III. The strict application of the Zoning Ordinance will deprive such property of privileges enjoyed by other property of the same classification in the same zoning district; and IV. Any variance granted will ensure 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. B. 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. 7. Action. In granting a variance, the Board may impose such conditions and safeguards as are appropriate to ensure that the purpose and intent of this section remain intact. Every variance shall be personal to the applicant therefor and shall be transferable and shall run with the land only after completion of any structure or structures authorized thereby. D. Appeals From the Board. The decision of the Board shall be final; provided, however, that any person aggrieved by a decision of the Board may, at any time within thirty (30) days after the filing of the decision in the office of the Development Services Director, file a special action in the nature of certiorari with the Arizona Superior Court in and for Maricopa County for review of the Board’s decision. Allowance of the writ shall not stay proceedings upon the decision appealed from, unless the court shall grant a restraining order. If a special action is brought for review of a matter in which the Board held a hearing which was not stenographically or electronically recorded, then upon request of any party to the special action or the court, the Board shall forthwith arrange a hearing in accordance with the public hearing and posting requirements for a variance for the purpose of causing a stenographic or electronic record to be made of the evidence presented by the parties. If evidence is presented at this hearing which is new or different from that originally presented, the same shall be noted in the record by the Board Chairman. (24-20, Amended, 11/19/2024) Ch. 2 Procedures | Fountain Hills Zoning Ordinance Page 4 of 5 The Fountain Hills Zoning Ordinance is current through Ordinance 24-20, passed November 19, 2024. The Fountain Hills Zoning Ordinance is current through Ordinance 24-20, passed November 19, 2024. Disclaimer: The town clerk’s office has the official version of the Fountain Hills Zoning Ordinance. Users should contact the town clerk’s office for ordinances passed subsequent to the ordinance cited above. Town Website: www.fh.az.gov Hosted by General Code. Ch. 2 Procedures | Fountain Hills Zoning Ordinance Page 5 of 5 The Fountain Hills Zoning Ordinance is current through Ordinance 24-20, passed November 19, 2024.