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HomeMy WebLinkAboutBA.1991.1210.Minutes Coe TOWN OF FOUNTAIN HILLS MINUTES OF THE MEETING OF THE BOARD OF ADJUSTMENTS DECEMBER 10, 1991 A public meeting of the Fountain Hills Board of Adjustment was convened and called to order by Chairman Britten at 7:02 p.m., Tuesday, December 10, 1991 in the Town Conference Room located at 16836 E. Palisades Blvd., Building C, 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: Chairman Roland Britten, Vice-Chairman George Bard, Commissioner Joel Katleman, Commissioner Paul Kolwaite, and Commissioner Earl Stavely. Also present were Associate Planner Loras Rauch and Administrative Assistant Joan McCartney. AGENDA ITEM #3 - INVOCATION AND PLEDGE TO THE FLAG After the pledge to the flag, the invocation was given by Vice-Chairman Bard. AGENDA ITEM #4 - CONSIDERATION OF THE MINUTES OF NOVEMBER 12, 1991 Commissioner Katleman made a MOTION to accept the minutes as written. Commissioner Stavely SECONDED and the motion CARRIED unanimously. AGENDA ITEM #5 - VARIANCE #V91-010 - PATRICK AND DIANE PRZYBYSZ Chairman Britten began by reviewing the responsibilities of the Board of Adjustment and by reading the four criteria regulated by State Law that must be met before a variance can be approved regardless of the Board members' personal feelings or opinions. The Board of Adjustment needs to review the case and successfully find the facts or evidence which show: 1. There are special circumstances or conditions applying to the land or building, which do not apply to other properties in the same district. 2. The special circumstances were not created by the owner or applicant. 3. Authorizing the variance is necessary for the preservation and enjoyment of substantial property rights. 4. The authorizing of the variance will not be materially detrimental to persons residing or working in the vicinity, to adjacent property, or to the neighborhood or the public welfare in general. 1 Mrs. Rauch presented the Staff Report and stated that the Applicant had a single-family home in an R1-8 zoning district. The Applicant's lot was considered to be a hillside lot by the County. Mrs. Rauch pointed out on a map, on an overhead projector, the area of the Applicant's property in question stating that the disturbed area was approximately 596 square feet. She went on to say that the additional 596 square feet brought the percentage of hillside lot disturbance to 39.3% and the maximum hillside lot disturbance was 35%. She stated that it was Staff's recommendation that the Applicant's variance be denied and the 596 square feet of disturbed area be restored to it's original state and the area revegetated. Mrs. Rauch added that the Applicant would still have approximately 9,000 square feet in the back yard after the 596 square feet of fill dirt was removed and the area restored. She stated that there was nothing unusual about this lot. Mrs. Rauch stated that it was Staff's opinion that the four criteria had not been met. Vice-Chairman Bard asked if the Hillside Development Standards were developed after the house was constructed and was told by Mrs. Rauch that the Hillside Development Standards were adopted from what the County had used since the 1970's. She went on to say that the Hillside Development Standards were in place prior to Fountain Hills becoming a Town and before the home was developed. She also stated that the Hillside Development Standards had not been revised other than removing the references to Maricopa County and various departments that Fountain Hills did not have. Commissioner Katleman asked if the original builder filled in the same area, would he, too, have had to obtain a variance. Mrs. Rauch kro answered in the affirmative. Mrs. Przybysz began by showing the Board photographs that had been taken both before and after the adding of the fill dirt and the grading. Mrs. Przybysz explained that they had purchased the house after construction of the house. She also explained the erosion problem they were having because of rain runoff, showing the exposed foundation in the photos. Mrs. Przybysz went on to state that the property continued to eroded after the addition of the fill dirt and would continue to do so until the landscaping was completed. Mrs. Przybysz explained that the landscaping had been curtailed since receiving a summons to appear in Court for neglecting to obtain a grading permit prior to filling and grading the property. Mrs. Przybysz stated that she tried to find out if a grading permit was necessary by calling Mr. Gary Jeppson. She stated that Mr. Jeppson informed her that she might need a permit. Commissioner Kolwaite stated that the fill and drainage close to the house was not the issue in question but that the 596 square feet was the area needing a variance. Mrs. Przybysz explained that in order to get the extra fill dirt out, a bulldozer would have to drive through the wash to get to the area, dig the dirt out, and then drive back out the wash. Mrs. Przybysz felt that this option would be more detrimental to the undisturbed area than leaving the 596 square feet in question. Mrs. Przybysz explained that she felt it was necessary to leave the disturbed area to provide a play area for her child. Mr. Przybysz pointed out on the map the steep contours of property and stated that he felt it was unsafe for a child. He also pointed out on the map the undisturbed flat area of the property and stated that he felt that area was not suitable for a play area. L 2 Commissioner Katleman suggested moving the extra fill dirt to a different location next to the house and leveling the contours of the back yard more, which would include the addition of a retaining wall. Mr. Jerry King, Consulting Engineer, informed the Board that the Hillside [Development Standards] Ordinance was adopted by the County in 1988. He stated that this particular property was not an ordinary R1-8 lot and he felt the lot did not have a natural slope. Mr. King went on to explain the Hillside [Development Standards] Ordinance to the Board. Commissioner Kolwaite stated that the house was not in question because the house was not built on the portion of the lot considered to be hillside. Mrs. Rauch stated that the County had accepted the portion of the lot on which the house was built as an 11% grade. Mr. King told the Board that the Planning and Zoning Commission was holding a public hearing on Thursday, December 12, 1991 to consider exempting lots under 18,000 square feet from the percentage development limitations. Mrs. Rauch stated that this particular lot was 20,000 square feet. Commissioner Kolwaite asked the Applicant what they planned to do with the steep bank off to the left of the level area that was not in question. Mrs. Przybysz stated that rip-rap would be used in that area. Chairman Britten stated his concern was for the amount of damage that would be created by driving the bulldozer up the wash and removing the dirt. He stated that he felt a greater problem would be created by removing the dirt than by leaving it. Commissioner Kolwaite stated that a backhoe could come in from the flattened area across the area already disturbed. Mrs. Przybysz said that she was told by the person that graded the fill dirt that to remove the fill dirt, a bulldozer would have to drive through the wash which would also save time. Commissioner Katleman asked Mrs. Przybysz if she was under the assumption that no permit was needed. Mrs. Przybysz said that was her assumption and that since then she has tried to cooperate in every way. Commissioner Katleman asked Mrs. Przybysz why she did not obtain a grading permit and Mrs. Przybysz responded that she was not aware that she needed a permit. Mrs. Przybysz went on to explain that after the dirt had been dumped, the Town Marshal visited the property as a result of a complaint from a Town Council member. Mrs. Przybysz then contacted Mr. Jeppson who suggested that perhaps a permit was required. Mrs. Przybysz stated that she did not obtain a permit because she was unsure of what was required and what would transpire. Mrs. Przybysz stated that someone was sent to her property without notifying her to inspect the backyard after which she received a summons from the Court. Mrs. Przybysz went on to say that everything they intend to do with the yard requires a permit either from the Town or the Committee of Architecture. Commissioner Katleman asked what the cubic yardage of the 596 square feet was and was told by Mrs. Rauch that it had been estimated to be 67 cubic yards. Commissioner Katleman asked if the fill dirt in question could be used elsewhere on the lot and was told by Mrs. Przybysz it could not because of the Hillside Ordinance. Chairman Britten asked if anyone in attendance in the audience was opposed to granting the variance. Mr. Arthur Rogers, whose property borders the Przybysz property, stated that he and his wife did not sign the petition presented by the Applicant because they wanted additional information concerning the variance. Mr. Rogers, asked if the variance was approved, would the 596 square feet of fill 3 dirt need to be removed and was told that, if the variance was approved, the fill dirt would be allowed to stay. Chairman Britten stated that Mr. Rogers' comments directly addressed one of the four criteria concerning whether or not granting the variance would be detrimental to surrounding property owners. Mr. Rogers stated that he did not feel that granting the variance would be detrimental to his property. Mr. Ken Snow stated that the fill dirt added by the Applicant had improved the lot from the way it had been before. Mr. Will Drabenstot stated that he shared the Applicant's concern that hauling out the fill dirt would cause more damage than leaving it as it is. Commissioner Bard suggested that there was still a question as to how the extra fill dirt would be removed. He went on to say that the law could be avoided by self-imposing various conditions that are not acceptable to the law and then saying that it would cause more damage to correct the problem than to allow it. Mrs. Przybysz began to discuss her drainage and foundation situation at this point and was told by Commissioner Kolwaite and Chairman Britten that the issue at hand was the 596 square feet indicated on the map as a black triangle. Commissioner Katleman asked, if the variance was granted, how would the area be landscaped and used. Mr. Przybysz stated that the landscaping plans had not been finalized at this time and had been put on hold until the variance was settled. Mrs. Rauch presented the rough landscape drawing submitted to her by the Applicant. Mr. King stated that many of the lots in Fountain Hills were unbuildable due to the contours of the lot and that when property owners were told that to build on their lot would exceed the 35% disturbance, they became very unhappy with our community and went elsewhere. Commissioner Kolwaite reiterated that that was not the issue before the Board and that the only issue was the 596 square foot area. Mr. King stated that this was an unusual circumstance and the community needed to face up to the problems. Commissioner Stavely added that the problem would get worse before it got better and many of the lots left for sale by MCO were unbuildable under the ordinance. Mrs. Przybysz stated that Mr. Jeppson asked that an engineer be hired to prove that there was no change in the drainage and contours. She went on to say that it was not their intention to change the drainage of the lot which would disrupt the natural flow of water. Commissioner Bard stated that he felt numbers 1 and 3 of the four (4) criteria were lacking. He felt that there were no special circumstances and that a variance was not required for the preservation of substantial property rights. He also stated that it appeared to him that granting the variance would not be detrimental to surrounding property owners. Commissioner Stavely stated that he had one reservation about granting the variance which would be an open invitation to people to do things to their property and then claim ignorance of the law. Chairman Britten read aloud the Justification of Variance to everyone in attendance. He went on to say that all four (4) conditions must be met before a variance could be granted and if any one of them was not met then, by law, 4 a variance could not be granted. He also stated that personal feelings could not be considered and the State Law had to be followed. Vice-Chairman Bard made a MOTION to deny the variance request because two (2) of the four (4) criteria had not been met. The two (2) criteria he felt had not been met concerned the lack of special circumstances and that a variance was not necessary for the preservation of substantial property rights. Commissioner Kolwaite SECONDED the motion. Vice-Chairman Bard and Commissioner Kolwaite voted to deny the variance. Commissioner Stavely made a MOTION to approve the variance and Commissioner Katleman SECONDED. When asked to state on what facts the motion to approve was being based and if it was felt that all four conditions had been met, Chairman Britten stated that he felt all four conditions had not been met but that he was trying to apply some common sense. The motion CARRIED by a vote of three (3) to two (2) with Chairman Britten and Commissioners Stavely and Katleman voting for the approval of the variance. AGENDA ITEM #6 - CONSIDERATION OF AMENDING EITHER THE RULES OF PROCEDURE OR BY-LAWS Mrs. McCartney explained to the Board that the Rules of Procedure, Section II.204, and the By-laws, Section II.E, were not consistent with one another concerning the number of votes required to transact business. Mrs. McCartney explained that when the Rules of Procedure and By-laws were drafted, it was decided that an affirmative vote of no less than three Board members was necessary to transact business, but that in the final draft of the Rules of Procedure an error was made. Mrs. McCartney went on to explain that an amendment needed to be made to either document for consistency. Mrs. McCartney explained the possible alternative wording of each document to the Board and the process through which each would go in order to enact an amendment. Mrs. McCartney stated that the Staff's recommendation was to amend the Rules of Procedure to read, "The Business of the Board shall be transacted by the affirmative vote of no less than three (3) members." Commissioner Kolwaite made a MOTION to amend the Rules of Procedure to read "...by the affirmative vote of no less than three (3) members." at the next regular meeting. Vice-Chairman Bard SECONDED and the motion CARRIED unanimously. AGENDA ITEM #7 - CALL TO THE PUBLIC Commissioner Kolwaite stated that all members of the Board were emotionally involved in the proceedings of the evening and felt badly for the Applicant. He went on to say that, as a group, the Board must be extremely careful about letting emotions overrule the rules of orders that the Board is to apply. Commissioner Kolwaite went on to say that the comment made by one of the Board members indicating that all four (4) criteria had not been met but that the alternative was a worse choice went beyond the scope of the Board and that, in the future, care should be taken to not let emotions rule. Chairman Britten commented that he felt common sense should have been applied in this instance because it would be difficult to remove the extra fill dirt, it was not hurting anyone by leaving it there, and no harm was being done. Vice-Chairman Bard stated he agreed with a previous statement by Commissioner Stavely which pertained to violating the law, coming into the Board of Adjustment and getting approval for violation. Vice-Chairman Bard felt that because Mrs. Przybysz said 5 Mr. Jeppson had said, "Maybe you need a permit" that Mrs. Przybysz should have obtained one as opposed to violating the ordinance. He went on to say that Mrs. Przybysz then came before the Board of Adjustment and "tugged on our heartstrings", so the Board allowed the 596 square feet to remain disturbed. Mrs. Rauch reminded the Board that the meeting was not adjourned. Commissioner Katleman asked about a letter he had written concerning special setback districts and had presented at a previous meeting not being on this meeting's agenda. Mrs. McCartney informed the Board that a copy of the letter had been included in the Planning and Zoning packets. AGENDA ITEM #8 - ADJOURNMENT Commissioner Katleman made a MOTION to adjourn the meeting. Commissioner Bard SECONDED and the motion passed unanimously. The meeting adjourned at 8:15 p.m. FOUNTAIN HILLS BOARD OF ADJUSTMENT By: c /- Geage Bard ATTEST: ( a-2 . %'��`(0,e Joan McCartney, Administrat' 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 10th day of December, 1991.. I further certify that the meeting was duly called and held and that a quorum was present. Dated this 12th day of December, 1991. C/00/// 717) t /.7./1"s1-/C , Joan McCartney, Administrative As sta t 6 STAFF REPORT DECEMBER 10, 1991 CASE NO.: V91-010 ADDRESS: 17123 E. Malta Drive aka Lot 12, Blk. 5, Plat 204 REQUESTED ACTION: Requesting a Variance to allow an increase in the allowable lot disturbance area from 35% as required by the Hillside Development Standards to 39.3% as proposed by the Applicant. DESCRIPTION: Owner: Pat and Diane Przybysz Applicant: Pat and Diane Przybysz Existing Zoning: R1-8 , Single-Family Residential STANDARDS FOR REVIEW ARTICLE X. (R1-8) SINGLE-FAMILY RESIDENTIAL ZONING DISTRICT - 8,000 SQUARE FEET PER DWELLING UNIT 10.5 Intensity of Use Regulations. The intensity of use regulations are as follows: (4) Lot Coverage: The maximum lot coverage shall be thirty-five (35%) percent of the lot area. ARTICLE XXIV. HILLSIDE DEVELOPMENT STANDARDS 24.1 Purpose. The principal purpose of the hillside development standards is to allow the reasonable use and development of hillside areas while promoting the public health, safety, convenience and general welfare of the citizens of the Town of Fountain Hills and maintaining the character, identity, and image of hillside areas. The primary objectives of the hillside development standards are: To minimize the possible loss of life and property through the careful regulation of development; to protect watershed, natural waterways, and to minimize soil erosion; to ensure that all new development is free from adverse drainage conditions; to encourage the preservation of the existing landscape by maximum retention of natural topographic features; and to minimize the scarring of hillside construction. 24.2 General Provisions. 1. All portions of a lot or parcel having a natural slope of fifteen (15%) percent or greater shall be subject to the regulations set forth in this Article.