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HomeMy WebLinkAboutBA.1991.0212.Minutes TOWN OF FOUNTAIN HILLS MINUTES OF THE MEETING OF THE BOARD OF ADJUSTMENT FEBRUARY 12 , 1991 A public meeting of the Fountain Hills Board of Adjustment was convened and called to order by Mr . Gary Jeppson at 6 : 00 p .m. , Tuesday February 12 , 1991 at the School Administration Building located at 14605 N . Del Cambre Blvd. , Fountain Hills , Arizona . ROLL CALL - Roll call was taken and present for roll call were the following members of the Fountain Hills Board of Adjustment : Commissioner George Bard, Commissioner Roland Britten, Commission Paul Kolwaite and Commissioner Earl Stavely . Also present were Community Development Director Gary Jeppson and Connie Riley . Commissioner Katleman arrived at 6 : 25 p.m. AGENDA ITEM #3 - INVOCATION AND PLEDGE TO THE FLAG Invocation was given by Mr . Jeppson and the pledge to the flag was given. AGENDA ITEM #4 - INTRODUCTION BY GARY W. JEPPSON Mr . Jeppson turned this item of to the Town Attorney, Mr . William Farrell , who gave the introduction. Mr . Farrell stated that the Mayor Cutillo , the Council , and the Town Manager extended their deep appreciation to the Board for their desire to serve. He went on to say that the Board of Adjustment is a very special and very unique body , created by law, far different than most other boards and commissions within the framework of town government in Arizona . He stated that he was going to give a brief overview of some of the legal aspects of the job of Board of Adjustment . He told them they would be given a copy of a pamphlet titled "You as a Public Official" . He stated that it is a synopsis of five of the important laws that elected and appointed officials need to be aware of . Two of them are important to the Board. Those two items are the "Open Meeting Law" and the "Conflict of Interest Law" . Mr . Farrell went on to explain to the Board that even though they are not paid for their services , they are covered by the Town' s general liability insurance, if they are sued over a decision made by the Board. 1 Mr . Farrell discussed the "Open Meeting Law" . He said that the Arizona Legislature in their infinite wisdom, passed what is known as the Sunshine or Open Meeting Law . However , they exempted themselves and they are able to make decisions behind closed doors . However the Board of Adjustment must have all decisions in an open meeting . The "Open Meeting Law" requires that a meeting be posted in at least three (3) conspicuous places in the community, no less than 24 hours prior to the meeting, which would give the general public a description of what it is that will be discussed or decided at the meeting . The "Open Meeting Law" also then requires that when the Board convenes that a record, in the form of either a transcription or minutes be kept of the meeting and that that be available for inspection within 72 hours after the close of the meeting . The "Open Meeting Law' does not require that the Board give the people in attendance an opportunity to speak . He stated that the Board could make a policy to limit either the time or number of public citizens . The Chairman has the right to limit and control the access of the public to the proceedings . And once the public portion of the meeting is closed , if the Board does decide to have public comment , then the deliberation should not be interrupted by people saying, "Gee I ' ve just got one more good idea . " He said that staff will by and large always do the work to make sure the agenda meets the qualifications and bring the Board in totally conformance with the "Open Meeting Law" . He went on to explain that the members of the Board can still socialize with one another and do not have to post that , but if they decide to make a collective decision on a matter that is pending before the Board, at that time they are in violation of the letter and the spirit of the "Open Meeting Law" . On the subject of "Conflict of Interest" Mr . Farrell said that the Board is subject to what is known as the "State Conflict of Interest Laws" . The law says that a member has a conflict of interest and can not vote if the member has a substantial interest in the decision that is before them. However , the law fails to define in any way what a conflict of interest is . However, it does say in subsequent cases that have interpreted substantial interest , that it must be a proprietary or pecuniary interest . In layman ' s terms that means that the member must either own the property or stand to make some money off the property . If the member, his employer , or any relatives in the second degree, have an interest in the real property, coming before the member, that member has a conflict of interest . If the member has an ownership position either through professional employment or what is done for a living and the member stands to gain from the granting of the variance, then a conflict of interest exists . Once a member has a conflict of interest , it is the members job, with staff ' s help, to make that known in the official record and abstain from doing two ( 2 ) things . Those two ( 2 ) things are: to abstain from voting and to abstain from attempting to influence the other members of the Board. 2 Commissioner Stavely asked Mr . Farrell if the decision impact on the member , is there a conflict of interest? Mr . Farrell answered that generally speaking , if it impacts on the member no differently than it does on the member as a member of a class , then there is no conflict of interest . Mr . Stavely used an example of if his neighbor wanted to encroach on a side yard, then that would impact him very definitely . Mr . Farrell answered that to the extent that that person was his neighbor then in that interest , it might . However, if the variance , in the members opinion, would not change the real estate value either upwards or downwards , then the mere fact that the member may know the person, or live on the same block , does not disqualify the member . Mr . Farrell went on to say that he is available and he does help on those things and anything the members share with the Town Attorney , regarding conflict of interest , is absolutely privileged . He said that he will ask some serious questions of the member about what the potential conflict is and if it is serious enough he would write an opinion letter which, if the letter says there is no conflict , and the member acts on it , is an absolute defense against a lawsuit . Mr . Farrell explained that the decision of the Board of Adjustment became final in thirty ( 30) days . Any interested party can file an action in Superior Court thirty (30 ) days down the road, from the decision and get a judicial determination of the Boards actions . Mr . Farrell said that if the Board is sued, they are sued on the basis of the record that is before the Board, at the time they made the decision. That record consists of the tape and all the documents the Board had to read. The judge can not hear any additional testimony and the Board can not be compelled to go down and give any testimony . The record is sent to the judge and the judge makes a decision that either the Board made the right decision or the Board should take the whole case back and reconsider it , and will give the Board some reasons as to why the Board should reconsider it . He stated that the suits are never ones where there is money involved, only to affirm or to reverse with a direction to hear the case again. Mr . Farrell went on to say that if the Board had a contested matter that is going to require some very specific legal advice, what Mr . Farrell would probably do, after talking to Mr . Jeppson about the case, is to suggest to the Mayor and Council that a private attorney be hired to give the specific advise to the Board of Adjustment . The reason for this is if the decision is one that causes a majority of the Council to want to have a point of law contested in court , and Mr . Farrell had given the Board the information, then the Council would be without the services of the Town Attorney . 3 Mr . Farrell explained that one exception to the "Open Meeting Law" is the executive session. One of the legitimate exceptions is to meet with the attorney for advice and discussion regarding pending or actual lawsuits . Mr . Farrell explained the difference between the Board of Adjustment and the Planning and Zoning Commission . Basically boards of adjustment came into existence to relieve individual property owners of the harsh applications of zoning laws . The Board of Adjustment is a quasi- judicial board, rather than a legislative board. The Mayor and Council are a legislative body . They can enact laws and can make decisions . The Planning and Zoning Commission is a legislative body and they can make recommendations . The Board of Adjustment is an administrative body . The Board sits very much like a Superior Court Judge . The Board is presented facts and there is a standard consisting of four ( 4) criteria that have to be met in the Boards mind. Then facts are presented to the Board and the Board weighs those facts and the Board decides that the four ( 4) criteria have been met or not been met . Mr. Farrell went on to explain that as a quasi-judicial body the Board should avoid ex-parte contact . In other words , if there is a variance that is going to come before the Board, the Board should try to avoid meeting with the applicant or meeting directly with Mr . Jeppson, at Town Hall , about the particular matter . The Board can certainly ask for as much information as they like. They can go look at the property. They are discouraged from having direct contact with the applicant and having direct contact with the Town Staff about the specific facts of the case. Material will be presented to the Board by both the staff and the applicant and the testimony presented during the hearing by staff , the applicant and interested parties , should form the basis for the Board' s decision. He stressed that all comments and opinions , regarding the case, should be done at the hearing while the tape is running. Commissioner Stavely asked if the Board could accept proxy input from the neighbors? Mr . Farrell said certainly . Mr. Farrell explained that the Board is not bound by the Committee of Architecture ' s decisions , nor is the Committee of Architecture bound by the Board' s decisions . This concluded Mr . Farrell ' s talk . AGENDA ITEM #5 - ELECTION OF CHAIRMAN AND VICE-CHAIRMAN Commissioner Stavely suggested that Commissioner Britten be the Chairman and it was so decided. It was then decided that Commissioner Bard be Vice-Chairman. 4 AGENDA ITEM #6 - ESTABLISHING A PERMANENT MEETING DATE, TIME, AND PLACE After a brief discussion it was determined that the Board would meet once a month, on the Tuesday preceding the second Thursday of the month, at 7 : 00 p .m. , at the Town Hall . AGENDA ITEM #7 - REVIEW AND CONSIDERATION OF BYLAWS AND RULES FOR PROCEDURE Commissioner Kolwaite made a MOTION to accept the Bylaws . Vice- Chairman Bard SECONDED and the motion passed unanimously . During the discussion regarding Rules of Procedure it was decided that Chairman Britten and Vice-Chairman Bard would serve one (1) year terms and the rest of the Board would serve two ( 2 ) year terms . Commissioner Kolwaite made a MOTION to accept the Rules of Procedure . Vice-Chairman Bard SECONDED and the motion passed unanimously . AGENDA ITEM #8 - VARIANCE #90-001 - NEW AMERICAN HOMES Mr Jeppson presented the variance request . New American Builders were seeking a twenty ( 20 ) foot variance from the front yard setback requirements of the R1-35 Zone . An R1-35 Zone has a minimum front yard setback requirement of forty ( 40) feet . New American was seeking the variance due to the topography and to protect the natural landscaping . Mr. Jeppson stated that for New American to conform to the minimum setback requirements , it would violate the Hillside Development Standards . He went on to say that two conflicting statutes were in existence and that New American was seeking relief from the front yard setback requirements so that they could conform with the Hillside Development Standards , to reduce disturbance to the hillside and to provide a view for the house. Commissioner Kolwaite was concerned about two Saguaro Cactus ' that would have to be removed if the variance was granted. Chairman Britten pointed out that the Saguaros could be moved and replanted. Vice-Chairman Bard asked how many other homes had had this type of variance . Mr . Jeppson stated that that information was hard to get from Maricopa County. Mike Nuessle, New American Homes , stated that on the same street a house, just two blocks up , has a twenty ( 20 ) foot setback variance. He went on to say that this type of variance is probably the most common type of variance here in Fountain Hills , on a R1-35 lot , when dealing with Hillside Development Standards . 5 After some further discussion, Commissioner Kattleman made a MOTION to approve the variance, as applied for . Commissioner Stavely SECONDED and the motion passed unanimously . Variance was granted. AGENDA ITEM #9 - ADJOURNMENT Chairman Britten made a MOTION to adjourn. Vice-Chairman Bard SECONDED and the motion passed unanimously. The meeting adjourned at 7 : 20 p.m. FO /,7 AAIIN HILLS RD OF ADJUSTMENT By : AA [ �s� .�.Q� land Britten, Chairman ATTEST: /)��l.fl�.Q , ,� �' 1S.1'u-P7l- _. Claire Wilhelm, Administrative Assistant CERTIFICATION I hereby certify that the foregoing minutes are a true and correct copy of the minutes of the meeting of the Fountain Hills Board of Adjustment held on the 12th day of February, 1991 . I further certify that the meeting was duly called and held and that a quorum NNW was present . 6 RECEIVEr) TOWN OF FOUNTAIN HILLS ro1:;41-AIN, t;,,,_; Try:. ; CLL1 . 410 VARIANCE REQUEST APPLICATION IO`(9 ). FEE: $75.00& $25.00(Signs) Property Owner (Applicant) Name: rO PROPEPTTRc TNC Address : P.O. BOX 17795 Phone No. 1-602-837-9660 Address of Subject Property: 15924 E. Tumbleweed Drive Legal Description : Plat 601-D, Block 1, Lot 1 1. Describe the problem The ordinance calls for the 6' wall to be 10' from the side property line. We are reciveatingtn mn fruci-±1 o wall on the property line. This does not create any site distance problems. 2 . From what Section of the Zoning Ordinance are you seeking relief? Articles VII, 7.2-(10) Pg. VII -6 (Fences) 3 . What kind of relief are you seeking? Moving wall 10' south 4. What special circumstances exist with your property that deprive you from enjoying your land as other property in the same Zoning Classification is being used? This creates a maintenance and upkeep problem since the homeowner owns the 10' but cannot build on it. Also, it hurts the salability of the lot.