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HomeMy WebLinkAboutBA.1992.0211.Minutes TOWN OF FOUNTAIN HILLS MINUTES OF THE MEETING OF THE BOARD OF ADJUSTMENTS FEBRUARY 11, 1992 A public meeting of the Fountain Hills Board of Adjustment was convened and called to order by George Bard at 7:01 p.m., Tuesday, February 11, 1992 in the Town Magistrate Court 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: Boardmember George Bard, Boardmember Joel Katleman, Boardmember Paul Kolwaite, Boardmember Earl Stavely, and Boardmember Donald Andrews. Also present were Community Development Director, Gary Jeppson; Associate Planner, Loras Rauch; and Administrative Assistant, Joan McCartney. AGENDA ITEM #3 - PLEDGE TO THE FLAG AND INVOCATION After the pledge to the flag, the invocation was given by Boardmember Katleman. AGENDA ITEM #4 - SWEARING IN OF DONALD A. ANDREWS, JR. The Honorable Stuart J. Shoob presided over the swearing in of Donald A. Andrews, Jr. to the Board of Adjustment. AGENDA ITEM #5 - ELECTION OF CHAIRMAN AND VICE-CHAIRMAN Boardmember Stavely NOMINATED George Bard for the position of Chairman. Boardmember Andrews SECONDED and the nomination CARRIED unanimously. Boardmember Katleman NOMINATED Paul Kolwaite for the position of Vice-Chairman. Boardmember Stavely SECONDED and the nomination CARRIED unanimously. AGENDA ITEM #6 - CONSIDERATION OF THE MINUTES OF DECEMBER 10, 1991 Vice-Chairman Kolwaite made a MOTION to accept the minutes as amended. Boardmember Katleman SECONDED and the motion CARRIED unanimously. AGENDA ITEM #7 - VARIANCE #V92-01 - MARTIN AND TERRY BROWN 15615 E. JAMAICA LANE Vice-Chairman Kolwaite stated that, because he and Dr. Martin Brown were in a dental practice together, he felt there might be a conflict of interest. Vice- Chairman Kolwaite excused himself from the room during the discussion and decision process of this variance request. Mrs. Rauch began by presenting the Finding of Facts, Analysis, and �-- Recommendation included in the Staff Report (see Attachment "A"). 1 ,,. Boardmember Stavely asked if the Hillside Development Standard would be violated if the variance was granted. Mrs. Rauch answered that the Hillside Development Standards would not be violated if the variance was granted. Boardmember Katleman then asked if the variance was not granted would the applicant then have to reduce the size of the construction to comply with both the setback requirements and the Hillside Development Standards. Mrs. Rauch answered that if the setback requirements were in compliance, there would be an additional 4,600 square feet of disturbed area. The 4,600 square feet of disturbed area would exceed the maximum permitted in the Hillside Development Standards. Dr. Brown declined the opportunity to present his request. Dr. Brown also stated that he felt the Staff Report was adequate. Boardmember Andrews stated that if there were two (2) standards in conflict, he felt the Hillside Development Standards should take priority over fundamental building setbacks. Boardmember Katleman made a MOTION to approve the variance requested by the applicant. Boardmember Stavely SECONDED and the motion CARRIED unanimously. At this point, Vice-Chairman Kolwaite returned to the proceedings. AGENDA ITEM #8 - VARIANCE #V92-02 - JAMES AND KRISTINE SERCU 15829 E. CHICORY LANE Chairman Bard asked Mr. James Sercu for an explanation of his video taping the hearing on the requested variance. Mr. Sercu stated that he was keeping a record on his house's development. Chairman Bard asked if there were any restrictions pertaining to the videotaping of Board of Adjustment meetings. Mr. Jeppson answered that he was not aware of anything that would preclude the videotaping of meetings. Mrs. Rauch began by stating that the Applicants were requesting a variance to the percent of hillside disturbance allowed in an R1-8 zoning classification. Mrs. Rauch stated that after the Board of Adjustment packets had been prepared and distributed, the Contract Engineer employed by the Town, Susanna Struble, had recalculated the square footage of the lot that was considered hillside. Ms. Struble found an area of 1,200 square foot that was not considered hillside. Mrs. Rauch explained that the percentage of disturbance proposed by the applicant, as stated in the Staff Report, was sixty-eight (68) percent but after the recalculation, the degree of disturbance was actually sixty-six (66) percent. Mrs. Rauch continued by presenting the Findings of Fact and Recommendation included in the Staff Report (see Attachment "B"). Mrs. Rauch went on to say that the Hillside Development Standards attempt to address the percentage of the natural slope of the lot whether the direction of the slope is front to back or side to side. Mrs. Rauch stated that Staff recommended denial of this request because it did not fulfill the four (4) criteria set forth by the Board. Chairman Bard asked if the Applicant understood the four (4) criteria. Mrs. Sercu stated that it was her belief that they, James and Kristine Sercu, did 2 understand the four (4) criteria by which the Board must abide when making a decision. Boardmember Andrews asked if an Applicant presented their request to the Board and it was denied, how long it would be before they could reapply. Mrs. Rauch stated it would be one (1) year before they could reapply. Mrs. Sercu stated that they had prepared a Review of Staff Report which had been received on Monday, February 10, 1992. Mrs. Sercu distributed copies of the review to the Board members. Mrs. Sercu went on to say that she and her husband had been working on the property in question for a number of months. When it was determined to be a hillside lot and subject to the Hillside Development Standards, they began to question the Planning and Zoning Commission. The size of the lot had been chosen to provide a play area for their child. Mrs. Sercu stated that the future pool area had been shown as such but was not necessarily going to be developed into a pool area by them. Mrs. Sercu went on to say that the disturbance area depicted in the drawing presented by Staff was not what had been depicted by the licensed professional engineer hired by the Sercu's. Mrs. Sercu continued by saying that they had attended Town Council meetings at which the Council had considered an amendment to the Hillside Development Standards. She stated that the Planning and Zoning Commission had been favorable to the amendment but that the Council had voted against it. Mrs. Sercu stated that the dirt that would be removed from the hillside for the construction of the lower level of the home would be moved to the Southern "" corner of the lot known as the future pool area and that no other dirt would either be imported or removed from the property. Mrs. Sercu went over the points listed on the Review of Staff Report prepared by the Sercu's (see Attachment "C") and stated that there were several areas in dispute. Mrs. Sercu pointed out areas on a site plan she presented to the Board, areas of disturbance that were necessary to redevelop the contours of the lot. Mrs. Sercu went on to say that she felt the actual size of the home was irrelevant to the case discussion. She continued by saying that after personally speaking to Mr. and Mrs. McManus who had written the letter of objection to the Town concerning the approval of the variance, she stated that the McManus' had reconsidered their objections. The McManus' had originally objected to the variance because it was their understanding that dirt would either be imported or removed from the property and that their view would be blocked by the Sercu home. Mr. Sercu presented photographs of the property and the surrounding area to the Board. Boardmember Andrews stated that he was very familiar with the area surrounding the property in question because his mother's home was within 300 feet of the Sercu's property. He went on to say that other properties within 300 feet of the Sercu's property had larger level areas toward the front lot line than did Sercu's. Boardmember Katleman asked the Sercu's, if the dirt that was removed from the hillside to construct the lower level was taken off the property instead of grading it onto the future pool area, the percentage of disturbance be in 3 compliance with the Hillside Development Standards. Mrs. Sercu stated that they would be closer to compliance than they are now. Mrs. Sercu answered that it would be more costly to remove the dirt and it was their plan to relandscape the future pool area with natural vegetation because, at the time, they had no plans to build a pool. Boardmember Katleman pointed out that if the future pool area was not filled in, it would not be calculated in the percentage of disturbance, which would then be closer to compliance with the Hillside Development Standards. He also suggested that at a future time, if they decided to build a pool, the future pool area could then be considered for a variance. Mr. Sercu explained that the export and subsequent import of the fill dirt would be costly and there would be significant disturbance of the terrain bringing the trucks of fill dirt across the property. Vice-Chairman Kolwaite asked if the wall depicted on the plans was the intention of the Applicant's. Mr. and Mrs. Sercu responded that the plans indicate the wall as a "snake" wall and was only 36" in height. Chairman Bard asked if the McManus' had supplied the Sercu's with a reconsideration of their objections to the variance in writing. Mrs. Sercu explained that they had just received the Staff Report on Monday. February 10, 1992 and had spoken to the McManus' the evening of the 10th. Mrs. Sercu went on to say that the McManus' had offered to "telex" a letter to that effect but that the Sercu's told them not to go to that expense. Councilman Charlie Fox stated that the Applicant had telephoned him the evening of February 10, 1992 to ask him to attend the February 11, 1992 Planning and "". Zoning Meeting. Councilman Fox asked if the math errors the Sercu's had eluded to in the Staff Report had been discussed with Staff prior to the meeting. Mrs. Sercu answered that they had only received the report on Monday, February 10, 1992. Mrs. Rauch stated that Staff had not received a copy of the Professional Engineer's stamped site plan but had only the site plan Mrs. Rauch previously presented to the Board during her presentation. Mr. Sercu stated that Staff had been informed that he and his wife had been working on reducing the amount of disturbance. Councilman Fox went on to say that Staff had not deliberately tried to mislead anyone, but had only used the information and data provided them by the Applicant. Therefore, the figures Staff presented were not incorrect. Mrs. Sercu asked why it was necessary for Staff to recalculate the figures that had been provided by a Professional Engineer. Boardmember Andrews answered that, regardless of the plans being professionally stamped, it was the duty of the municipality to review the numbers as it was possible for anyone to make an error. Councilman Fox asked the Sercu's and their Engineer what the actual area of disturbance requested was. Mrs. Sercu replied that 7,400 square feet or approximately 54% of the lot was the area of disturbance and not the 10,500 square feet as stated in the Staff Report. Boardmember Andrews stated that he felt what the Applicant's were trying to do was balance the site, meaning that the amount of dirt taken out of the hill would .�.. be redistributed elsewhere on the site. He went on to say that he did not feel 4 .......__. ._ �..- it was the Board's responsibility to grant variances to balance the site and to avoid having to pay for dirt removal from the site. Boardmember Andrews expressed his concern for safety. He stated that it was his feeling that during hard rains, most of that area would be underwater and would cause numerous problems should the future pool area, if filled, later be developed. He went on to say that Staff could only calculate the area to be disturbed by the figures and information they were given. Mrs. Sercu stated that they had only reduced the area. Boardmember Andrews replied that Staff would have then been able to reduce their figures also had they been given the information. He continued to say that regardless of the reduction of disturbance thusfar, the Applicant's were still substantially over the allowed disturbance. Boardmember Andrews pointed out on the site plan the play area and the future pool area and stated that those two (2) areas were what was causing the property to be disturbed significantly over the allowed percentage. Mrs. Sercu asked if what he was stating was that they could build the home but not have the play area and future pool area. Boardmember Andrews reiterated his concern for erosion and flooding from the wash area behind the retaining wall along the rear of the yard. He went on to say the he felt it was his responsibility as a Boardmember to help the Applicant make the correct decisions with the information available. He continued to state that with the information available at that time., he would not be able to approve the variance. He went on to say that the Board was looking for ways to help the Applicants conform to the regulations. Mrs. Sercu stated that the footprint of the home as presented by Staff was arbitrary and that careful care had been taken to place the home on the lot to preserve the hillside as much as possible. She stated that the view of the house across the street had been taken into consideration, as well as the existing vegetation. Mrs. Sercu stated that she felt they had understood the four (4) criteria by which the Board must make their decision but asked which of the four (4) criteria were not met at the time and for what reason they were not met. Chairman Bard stated that it was his feeling that the Applicant's were trying to have the law conform to the house as opposed to the house conforming to the law. Mrs. Sercu responded by saying that it would not be aesthetically appealing to conform to the law and would not meet with the intent of the Hillside Development Standards. Chairman Bard began reading the four (1) criteria by which the Board of Adjustment must abide. 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. 5 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. Mrs. Sercu stated that she did not need them read aloud. She went on to ask the Board what they would consider "special circumstances". The Boardmembers replied that a wash running through the center of the property or unusual easements would be examples of special circumstances. Boardmember Katleman explained that the special circumstances were created by the Applicant because they had chosen that particular house to build on their lot as opposed to another type or size of house. He went on to say that the Board wanted to see them build the type of house the Applicants desired. He suggested that the Applicants take the next thirty (30) days to work through the problems of non-compliance before bringing a revised plan back to the Board to show that they were trying to get in compliance with the regulations. Mr. Jeppson stated to the Board that he and Mrs. Rauch would be willing to help the Applicants bring their plans into compliance. After a brief discussion, it was ascertained that the Applicant's could request a continuance of their variance request and would not have to wait the twelve (12) months that would be required if they received a denial to their request at this meeting. Mrs. Sercu stated that they, the Applicants, wanted to request a continuance. Boardmember Katleman made a MOTION to continued the hearing for one (1) month until the March 10, 1992 meeting and directed the Applicant to work with Staff to arrive at a suitable solution. Boardmember Andrews SECONDED and the motion CARRIED unanimously. AGENDA ITEM #9 - VARIANCE #V92-03 - DALE PHILLIPS 11825 WINCHESTER Mrs. Rauch began by presenting the Staff Report and Findings of Fact (see Attachment "D"). Chairman Bard asked Mrs. Rauch to point out where the sixty- five (65) percent of disturbance would be. Mrs. Rauch indicated on the site plan, shown on the overhead projector, the footprint of the home and stated that the footprint comprised the sixty-five (65) percent. Mrs. Rauch continued by saying that the area of disturbance for the house was not a problem. She went on to say that the building of the retaining wall in the pool area, the filling in behind the wall, and the building of a fence wall above the retaining wall was the area in which Staff found to be in conflict with the Hillside Development Standards for contour preservation. It was established that the wash running diagonally through Mr. Phillips' lot was originally disturbed when Winchester Drive was built and appears to start from out of nowhere approximately twenty (20) feet from the front property line. Mrs. Rauch reported that a letter had been received on the day of the meeting from an adjacent neighbor opposing the variance. 6 Mr. Phillips stated that he differed with the Staff report in that it was his intent to camouflage the rear retaining wall with vegetation. He also stated that he would be filling in the swale toward the Southern rear corner of the lot at a depth of no more than eight (8) feet. Mr. Phillips went on to say that if the variance was denied, he would have to move the pool to the north side of the rear year which would result in removal of a palo verde tree and several barrel cacti on undisturbed land. Mr. Phillips added that a six (6) foot retaining wall would need to be built at the sixty-five (65) percent disturbance line and the eleven (11) foot existing retaining wall along the south property line would remain bare. Mr. Phillips stated that he would be the only one able to see the extra thirty-five (35) percent of undisturbed land that remained in the bottom of the hole created by the surrounding retaining walls where he had proposed filling. Mr. Phillips stated that the Staff Report, Findings of Fact, #9, was incorrect because Mr. VanDam had not disturbed one hundred (100) percent of the property but had disturbed what had been allowed. He went on to say that the property to the south had a twelve (12) foot retaining wall with eleven (11) feet of fill behind it. Mr. Phillips stated that he did not feel it was right to allow eleven (11) feet on one side of a retaining wall and not allow any fill on the opposite side of the same wall. Mr. Phillips also stated that he felt he should be allowed to do what his neighbors had done in the same zoning classification. Mr. Phillips continued by saying that the dirt that would be removed during the construction of the basement would have to be removed from the lot if the variance was denied. He also stated that he would have to build a retaining wall to contain the fill dirt imported to the property to the south of his. Referring to the letter received in opposition to the variance, Mr. Phillips stated that he was trying to build a home that would blend in with the neighborhood and it was not his intention to block anyone's view. He went on to say that he had taken into consideration the view of the neighbors when designing the house. Ms. Maryanne Kesner stated that they owned the property directly across the street from Mr. Phillip's property and had written the letter of opposition to the variance. Ms. Kesner went on to say that the home should be designed to fit the lot instead of the lot designed to fit the home. Boardmember Stavely asked Staff if it was the Board's duty to preserve a view. The Board agreed that view preservation was not something the Board of Adjustment could regulate. Mr. Jeppson stated that view protection was not addressed anywhere in the Zoning Ordinance and could not be guaranteed. Mr. VanDam stated that he would rather see Mr. Phillip's lot filled in than left as it was. He also stated that the wash had already been disturbed with the construction of the street and the property would look much better filled in. Mr. VanDam went on to say that the retaining wall at the rear of the lot would be barely seen from the east and. additionally, the house would look like a one-story house from the street. 7 Boardmember Andrews agreed that there were some existing conditions by which the Applicant could not be held responsible. He went on to say that his major concern was with drainage and safety. He expressed concern over the direction run-off water would take and asked Mr. Phillips to explain. Mr. Phillips explained that he had placed the driveway on the low side of the lot and kept the garage one (1) foot higher than street level. Mr. Phillips also explained that run-off water could run from the front of the lot to the back of the lot along the north side of the lot. Mr. Phillips went on to say that he had kept the front of his lot six (6) inches higher than curb height to keep the run-off water in the street. Mrs. Rauch stated that Staff had suggested that the house be "flip-flopped" to decrease the amount of disturbance and was told by Mr. Phillips that, in order to maintain drainage, the house had to be placed on the lot as shown on the site plan. She stated that the house was not the area of concern but more the proposed pool area that required the excessive percentage of fill and disturbance. Mr. Phillips explained that drainage holes would be placed in the rear wall to allow for run-off in the original, natural direction. Boardmember Andrews stated that he could not see the special circumstances that would require one hundred (100) percent disturbance. He also stated that he was in agreement with the sixty-five (65) percent suggested by Staff because of the conditions created by the road and the existing twelve (12) foot retaining wall. He stated that he did not feel that it was the Board's rights to grant a variance for the extra thirty-five (35) percent disturbance so that the Applicant could build a pool. Vice-Chairman Kolwaite made a MOTION to approved the variance request for one hundred (100) percent disturbance. Boardmember Katleman SECONDED and the vote CARRIED four (4) to one (1). Chairman Bard, Vice-Chairman Kolwaite. and Boardmembers Stavely and Katleman voted "aye". Boardmember Andrews voted "nay". AGENDA ITEM #10 - CONSIDER AMENDING THE RULES OF PROCEDURE Vice-Chairman Kolwaite made a MOTION to amend the Rules of Procedure, Section II.204. Quorum, to read, "The Business of the Board shall be transacted by the affirmative vote of no less than three (3) members." Boardmember Stavely SECONDED and the motion CARRIED unanimously. Chairman Bard stated that the amendment would become effective at the March 1992 meeting. AGENDA ITEM #11 - DISCUSSION OF SPECIAL SETBACK DISTRICTS - J. KATLEMAN Boardmember Katleman explained that he had written a letter on November 12, 1992 concerning a specific hillside district. Boardmember Katleman stated that the Board of Adjustment was increasingly required to make decisions concerning hillside variances. He went on to say that hillside considerations were more general circumstances that Fountain Hills was faced with than special circumstances. He added that, to save the Board's time and Staff's time, it was his intention that his letter represent the Board's position that the Town Council 8 NI... and Staff should find a method of identifying those lots and address them as a general issue rather than individually. Mr. Jeppson stated that the Planning and Zoning Commission was working on a revised draft of the Zoning Ordinance which proposed a twenty (20) foot setback in an R1-35 zoning district instead of the forty (40) foot setback currently required. AGENDA ITEM #12 - ADJOURNMENT The meeting adjourned at 9:35. FOUNTAIN HILLS BOARD OF ADJUSTMENT By: .7/V -, ; R ct....-c...e/C George Bard: Chairman ATTEST: (-11--a (73 (�4 .)"- .1,� Joan McCartney, Administrativ 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 11th day of February. 1992. I further certify that the meeting was duly called and held and that a quorum was present. Dated this 19th day of February. 1992. (__ __-‘0 i '7jc eat,.4,-(_,( Joan McCartney. Administrative ssistant 9