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HomeMy WebLinkAboutBA.2018.0719.Agenda ell A IN 44. °, cri MEETING NOTICE OF THE . opp BOARD OF ADJUSTMENT 9�� •.�_� `A+ ibat Is MU' Board Members: Chairman Paul Ryan, Vice-Chairman Carol Perica Board Members John Kovac III, Nick Sehman and Daniel Halloran Pursuant to A.R.S. 38-431.02, notice is hereby given to the members of the Fountain Hills Board of Adjustment and to the general public that the Fountain Hills Board of Adjustment will hold a meeting, which is open to the general public, on July 19, 2018, a t 5:30 p.m. in the Fountain Hills Community Center, 13001 N. La Montana Drive, Fountain Hills,Arizona. WHEN: THURSDAY,JULY 19,2018 TIME: 5:30 P.M. WHERE: TOWN OF FOUNTAIN HILLS COUNCIL CHAMBERS AGENDA ITEMS 1. CALL TO ORDER,PLEDGE TO THE FLAG,MOMENT OF SILENT REFLECTION,AND ROLL CALL. 2. CONSIDERATION of the Board of Adjustment meeting minutes for March 15,2018. 3. PUBLIC HEARING of the application of Robert and Barbara Mandel to receive comments on a requested APPEAL of the ZONING ADMINISTRATOR'S INTERPRETATION of the Fountain Hills Zoning Ordinance, Section 1.1 Definitions—FRONT LOT LINE as it relates to the property located at 15809 E.Brodiea Drive.(Case #Z2018-03) 4. CONSIDERATION of the application of Robert and Barbara Mandel for a requested APPEAL of the ZONING ADMINISTRATOR'S INTERPRETATION of the Fountain Hills Zoning Ordinance,Section 1.12 Definitions— FRONT LOT LINE as it relates to the property located at 15809 E.Brodiea Drive.(Case #Z2018-03) 5. PUBLIC HEARING of the application of Robert and Barbara Mandel to receive comments on a requested VARIANCE from the Fountain Hills Zoning Ordinance,Section 1.12 Definitions—FRONT LOT LINE as it relates to the property located at 15809 E.Brodiea Drive.Case #Z2018-04 6. CONSIDERATION of the application of Robert and Barbara Mandel for a requested VARIANCE from the Fountain Hills Zoning Ordinance,Section 1.12 Definitions—FRONT LOT LINE as it relates to the property located at 15809 E. Brodiea Drive. (Case #Z2018-04) L Page 1 of 2 a 7. ADJOURNMENT. Supporting documentation and staff reports furnished the Board with this agenda are available for review in the Planning& Zoning Department. DATED this 5th day of July 2018 By: o rt Ro s,Development Services Director The Town of Fountain Hills endeavors to make all public meetings accessible to persons with disabilities. Please call 837- 2003 (voice)or 1-800-367-8939(TDD)48 hours prior to the meeting to request reasonable accommodations to participate in this meeting. A majority of the Council Members may be in attendance. No official action will be taken. L Page 2 of 2 0 ‘ 4tntnr yi�t POST ACTION MEETING AGENDA 4. 4, MEETING NOTICE OF THE °# 'hat is A{�qo BOARD OF ADJUSTMENT Board Members: Chairman Paul Ryan, Vice-Chairman Carol Perica Board Members John Kovac III, Nick Sehman and Daniel Halloran Pursuant to A.R.S. 38-431.02, notice is hereby given to the members of the Fountain Hills Board of Adjustment and to the general public that the Fountain Hills Board of Adjustment will hold a meeting, which is open to the general public, on July 19, 2018, a t 5:30 p.m. in the Fountain Hills Community Center, 13001 N. La Montana Drive, Fountain Hills,Arizona. WHEN: THURSDAY,JULY 19,2018 TIME: 5:30 P.M. WHERE: TOWN OF FOUNTAIN HILLS COUNCIL CHAMBERS AGENDA ITEMS 1. CALL TO ORDER,PLEDGE TO THE FLAG,MOMENT OF SILENT REFLECTION,AND ROLL CALL. 5:30 PM 2. CONSIDERATION of the Board of Adjustment meeting minutes for March 15,2018.APPROVED RECCESS @ 5:37 PM 3. PUBLIC HEARING of the application of Robert and Barbara Mandel to receive comments on a requested APPEAL of the ZONING ADMINISTRATOR'S INTERPRETATION of the Fountain Hills Zoning Ordinance, Section 1.1 Definitions—FRONT LOT LINE as it relates to the property located at 15809 E.Brodiea Drive.(Case #Z2018-03) OPEN ED: 6:00 PM, CLOSED: 7:02 PM 4. CONSIDERATION of the application of Robert and Barbara Mandel for a requested APPEAL of the ZONING ADMINISTRATOR'S INTERPRETATION of the Fountain Hills Zoning Ordinance,Section 1.12 Definitions— FRONT LOT LINE as it relates to the property located at 15809 E.Brodiea Drive.(Case #Z2018-03)NOT APPROVED 5. PUBLIC HEARING of the application of Robert and Barbara Mandel to receive comments on a requested VARIANCE from the Fountain Hills Zoning Ordinance, Section 1.12 Definitions—FRONT LOT LINE as it relates to the property located at 15809 E.Brodiea Drive.Case #Z2018-04 OPENED: 7:04 PM, CLOSED 7:15 PM 6. CONSIDERATION of the application of Robert and Barbara Mandel for a requested VARIANCE from the Fountain Hills Zoning Ordinance, Section 1.12 Definitions—FRONT LOT LINE as it relates to the property located at 15809 E. Brodiea Drive. (Case #Z2018-04) NOT APPROVED L Page 1 of 2 7. ADJOURNMENT. 7:30 PM Supporting documentation and staff reports furnished the Board with this agenda are available for review in the Planning& Zoning Department. 2 DATED this 5th day of July 2018 By: o ert Ro s,Development Services Director The Town of Fountain Hills endeavors to make all public meetings accessible to persons with disabilities. Please call 837- 2003 (voice)or 1-800-367-8939 (TDD)48 hours prior to the meeting to request reasonable accommodations to participate in this meeting. A majority of the Council Members may be in attendance. No official action will be taken. Vr► S Page 2 of 2 sfAIN yjC TOWN OF FOUNTAIN HILLS 44° .�N Planning and Zoning X Board of Adjustment �4at is A��ti AGENDA ACTION FORM Meeting Date: July 19, 2018 Meeting Type: Regular Agenda Type: Regular Submitting Division: Development Services Staff Contact Information: N/A REQUEST TO PLANNING & ZONING COMMISSION: CONSIDERATION for approving the BOARD OF ADJUSTMENT REGULAR MEETING MINUTES from March 15,2018. Applicant: N/A Applicant Contact Information: N/A Property Location: N/A Related Ordinance, Policy or Guiding Principle: Policy or Guiding Principle: A.R.S. §38-431.01 Staff Summary (background): The intent of approving previous meeting minutes is to ensure an accurate account of the discussion and action that took place at that meeting for archival purposes. Approved minutes are placed on the Town's website in compliance with state law. Risk Analysis (options or alternatives with implications): N/A Fiscal Impact (initial and ongoing costs; budget status): N/A Recommendation(s): Approval Staff Recommendation(s): Approval SUGGESTED MOTION: Move to Approve the BOARD OF ADJUSTMENT REGULAR MEETING MINUTES from MARCH 15,2018. Attachment(s): N/A Submitted by: Approv d by: 07/05/2018 07/5/2018 Paula Woodward, Executive Assistant Date Bert R gers, Development Services Director Date Page 1 of 1 oJ�di pjty�,C TOWN OF FOUNTAIN HILLS 4 �� Planning and Zoning ` X Board of Adjustment AGENDA ACTION FORM Meeting Date: July 19, 2018 Agenda Type: Regular Meeting Type: Regular Submitting Department: Development Services Staff Contact Information: Bob Rodgers, Development Services Director, 480-816-5138, rrodgers( fh.az.gov REQUEST TO BOARD OF ADJUSTMENT: PUBLIC HEARING of the application of Robert and Barbara Mandel to receive comments on a requested APPEAL of the ZONING ADMINISTRATOR'S INTERPRETATION of the Fountain Hills Zoning Ordinance, Section 1.12 Definitions — FRONT LOT LINE as it relates to the property located at 15809 E. Brodiea Drive. (Case #Z2018-03) CONSIDERATION of the application of Robert and Barbara Mandel for a requested APPEAL of the ZONING ADMINISTRATOR'S INTERPRETATION of the Fountain Hills Zoning Ordinance, Section 1.12 Definitions — FRONT LOT LINE as it relates to the property located at 15809 E. Brodiea Drive. (Case #Z2018-03) PUBLIC HEARING of the application of Robert and Barbara Mandel to receive comments on a requested VARIANCE from the Fountain Hills Zoning Ordinance, Section 1.12 Definitions — FRONT LOT LINE as it relates to the property located at 15809 E. Brodiea Drive. (Case #Z2018-04) CONSIDERATION of the application of Robert and Barbara Mandel for a requested VARIANCE from the Fountain Hills Zoning Ordinance, Section 1.12 Definitions — FRONT LOT LINE as it relates to the property located at 15809 E. Brodiea Drive. (Case #Z2018-04) Applicant: Robert & Barbara Mandel Applicant Contact Information: 15809 E. Brodiea Dr. Fountain Hills, AZ 85268 480-861-2168 Property Location: 15809 E. Brodiea Dr. APN 716-16-545 Related Ordinance, Policy or Guiding Principle: Town Code Article 2-8-4 -Board of Adjustment Duties Town Code Article 2-8-6 -Variances 2006-2010 Strategic Plan - Conformance with Town Regulations Zoning Ordinance Section 1.12 Definitions—Front Yard Zoning Ordinance Section 2.07.A—Appeals to the Board of Adjustment Zoning Ordinance Section 2.07.E—Variance Zoning Ordinance Section 5.06.E Yard Lot and Area Requirements Zoning Ordinance Section 10.09 Density, Area, Building and Yard Regulations Arizona Revised Statute 9-462.06— Board of Adjustment Page 1 of 7 15809 E.Brodiea Dr. (Case AP 18-0I) BOA 7/19/18 APPLICABLE i OWN CODE REQUIREMENTS: Article 2-8 BOARD OF ADJUSTMENT Section 2-8-4 Duties B. It shall be the duty of the board of adjustment to hear and decide appeals for variances from the terms of the zoning code only, if because of special circumstances applicable to the subject property, including its size, shape, topography, location or surroundings, the strict application of the zoning code will deprive such property owner of privileges enjoyed by owners of other property of the same classification in the zoning district. Any variance granted is subject to such conditions as will assure that the adjustment authorized shall not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zone in which such property is located. C. The board of adjustment may not: 1. Make any changes in the uses permitted in any zoning classification or zoning district, make any changes in the terms of the zoning code or make changes to the zoning map, provided the restriction in this paragraph shall not affect the authority to grant variances pursuant to this article. 2. Grant a variance if the special circumstances applicable to the property are self-imposed by the property owner. Section 2-8-6 Variances Every variance shall be personal to the applicant and shall run with the land only after completion of any structure or structures authorized thereby. APPLICABLE ZONING ORDINANCE REQUIREMENTS Chapter 2 PROCEDURES Section 2.07 Appeals and Variances B. Variance. 1. Any aggrieved person may appeal to the Board of Adjustment for a variance from the terms of the Zoning Ordinance if, because of special circumstances applicable to the property, including its size, shape, topography, location, or surroundings, the strict application of the Zoning Ordinance will deprive such property owner of privileges enjoyed by owners of other property of the same classification in the same Zoning District. Any variance granted shall be made subject to such conditions as will assure that the adjustment authority shall not constitute a granting of special privileges inconsistent with the limitations upon other properties in the zone in which such property is located. 2. The Board shall hear the appeal at the next regularly scheduled meeting after the required advertising requirements have been fulfilled. Notice of the hearing shall be made by publishing a notice thereof in the official newspaper of the Town and by posting the property affected not less than fifteen (15) days prior to the hearing. The notice shall set forth the time and place of the hearing and include a general explanation of the matter to be considered. 3. A variance shall not be granted by the Board unless the alleged hardship caused by literal interpretation of the provisions of this ordinance results in more than personal inconvenience and/or personal financial hardship, and is not the result of actions of the applicant.r 4. In granting a variance, the Board shall impose such conditions and safeguards as are appropriate to ensure that the purpose and intent of this ordinance remain intact. 5. No nonconforming use or violations of this ordinance with respect to neighboring lands, structures, or buildings in the same Zoning District, and no permitted use of lands, structures or buildings in other zoning districts shall be considered grounds for granting a variance. Page 2 of 7 i 15809 E.Brodiea Dr. (Case AP 18-0I) BOA 7/19/18 6. Every variance shall be personal to the applicant therefore and shall be transferable and shall run with the land only after completion of any structure or structures authorized thereby. 7. Nothing herein contained shall be construed to empower the Board to change the terms of this ordinance, to 4 authorize uses which violate any other Town ordinance, to affect changes in the zoning map, or to add to or change the uses permitted in any Zoning District. Chapter 5 GENERAL PROVISIONS Section 5.06 Yard, Lot, and Area Requirements Sub-Section B. Application No building shall be erected, nor shall any existing buildings be altered, enlarged, moved, or rebuilt, nor shall any open space surrounding any building be encroached upon or reduced in any manner, except in conformity with the yard, lot, area and building location regulations hereinafter designated for the zone in which such building or open space is located, except as otherwise specifically provided. Chapter 10 SINGLE FAMILY RESIDENTIAL ZONING DISTRICTS Section 10.09 Density, Area, Building and Yard Regulations Zoning Ordinance Summary Chart Town of Fountain Hills Zoning Ordinance Chapter 10 FOUNTAIN MILLS ZONING ORDINANCE SUMMARY SINGLE FAMILY DISTRICT 1)IS I III I ARL.1 WIl)'fll LII DC 1.OT DIS'L NC'L (SQ.FF.f_7) (FEET) 1-1EICGI1T COVERAGE BETWEEN (I1.F.Il ISL.DOS (I'ELT) 81Ir RI)S1 1 A1211 SETBACKS 1 Ro\'I SiDE STREET RI. l) SIDE. R1-1941 19I,00)f 300g 30 60 30 60d 611 S"o 6 11.1-43 43,560 f 145 g 30 40 30 40 d 40 20°° 6 121-.35 35.000 r 145 g 30 40 20 20 40 20°n 6 R 1-3511 35,000 f 145 g 30 20 20 20 d 40 2000 6 R 1.18 18,000 f 120 g 30 20 I0 20 d 30 25°0 6 121-10 10.000 f 80 g 30 20 7 20 d 25 300o 6 R1-10A 1(1.000 f 80 a.g 30 20 7 20d 20 40°° 6 R I-8 8.000 f 80 g 30 20 7 20 d 25 35°n 6 Rt-8A 8.000 I' 80 a.g 30 20 b.d.c 7 20 d 20 40°0 6 R 1-6 6.000 r 60 g 30 20 5 20 d 25 40°C 6 RI-6A 6.000 cf 60 a.g 30 20 b 5 20 d 10 50°. 6 Zoning District= R1-10 Required Building Setbacks Front =20' Side =7' Street Side=20' Rear =25' Staff Summary(background): Near the end of 2017 the property owners of 15809 E. Brodiea Drive (the Mandels) hired an unlicensed contractor to construct a detached 2-car garage in the rear yard of their corner lot. No inquiries were made to the town, and no Building Permit was requested. Had the homeowners checked with the town, or requested a permit they would have been Page 3 of 7 15809 E. Brodiea Dr. (Case API 8-01) BOA 7/19/18 informed that their chosen location for the garage was not viable due to the existing building setbacks as well as an existing Public Utility Easement which was also located in this location along the rear lot line. On January 8, 2018 the Chief Building Official discovered the unpermitted construction activity and issued a stop work order. Shortly thereafter the Mandel's unlicensed contractor disappeared and the Mandels hired an attorney in an effort to keep the garage. During the course of discussions, the applicants requested and received a zoning interpretation on April 30, 2018 that confirmed the illegally built garage's rear setback violation. The applicants have challenged the Zoning Administrator's interpretation of the zoning ordinance's definition of a front lot line. When their house was built the original owner chose to face it toward the street side rather than toward the front property line. This is a common occurrence due to a variety of factors such as views, ease of access, etc. There are even instances in which houses have been turned completely around to face the rear in order to take advantage of views. Additionally, corner lots are routinely allowed to change their address to reflect the road on which the driveway connects. The facing of a house or its driveway connection are completely at the discretion of the homebuilder and do not, and can not, alter any property line definitions in the zoning ordinance. Appeal of the Zoning Administrator's Interpretation: The applicant's appeal is a very straight-forward appeal. The circumstances of the illegally constructed garage are not in question and are irrelevant to this appeal as it is questioning the Zoning Administrator's understanding of the definition of a front lot line. The question is; Either the Zoning Administrator interpreted the definition of"Front Lot Line" correctly, or he didn't. This is not a negotiation. The answer is either Yes, the interpretation is correct. Or, No the interpretation is incorrect. Below is the ordinance language. Chapter 1 INTRODUCTION Section 1.12 Definitions Lot Line, Front:In the case of an interior lot, a line separating the lot from the street right-of-way. In the case of a corner lot, the narrower of the two lot lines adjoining a street right-of-way. As previously noted, the property in question is a corner lot. Therefore, the second sentence in the above definition applies. The lot has road frontage on both Brodiea Drive and Echo Hill Drive. As can be seen in the attached Aerial Site Plan the lot has 150.86' frontage on Echo Hill Drive, and 222.75' frontage on Brodiea Drive. As such, the Zoning Administrator's interpretation is that according to the zoning definition of"Lot Line, Front", the property line along Echo Hill Drive is the Front Lot Line. The applicants have challenged this interpretation because the house faces Brodiea Drive and because they have always assumed that their front yard was facing Brodiea Drive. Request for Variance from Zoning Ordinance Section 1.12 Definitions—Lot Line, Front: The applicants have requested that if the Board of Adjustment's decision is that the Zoning Administrator's interpretation is correct, they would like a variance from the definition so that they don't have to remove the garage. The applicant has submitted a large packet of information in support of this request and this staff report will attempt to address the arguments their packet contains. LOT SHAPE Applicant:The subject property is an irregular lot. Staff: There are over a hundred similar lots in Fountain Hills. Corner lots are not an irregularity. COUNTY BOARD OF ADJUSTMENT Applicant: The Maricopa County Board of Adjustment granted a variance in 1989 for the fence-wall height within the required front yard setback along Brodiea Drive. In granting the variance to allow a 5'6"fence-wall within the required front yard, the applicant argues that the County Board of Adjustment effectively re-defined all four lot line definitions. Staff: Staff disagrees that the County board had any discussions or findings about re-defining any of the property line definitions. Nothing regarding the definitions of Front, Side or Rear property lines was even discussed at the County board's hearing. Certainly nothing was waived or re-defined. In fact, the minutes clearly show that the Board was granting the wall height variance in the"required front yard". 411) Page 4 of 7 15809 E.Brodiea Dr. (Case API 8-0I) BOA 7/19/18 As an additional case in point, the Fountain Hills Board of Adjustment recently had an identical case in which you granted a fence-wall height variance to allow a 6' wall within the required front yard setback area of a residence on Sycamore Drive.There was never any thought that allowing a taller wall in the front yard would somehow re-define the definition of the front lot line as a side or rear lot line. The entire discussion related to wall heights and the merits of allowing a taller wall to be built in the front yard under the circumstances. Staff does agree that the County Zoning Ordinance contained the same language as the current Fountain Hills Zoning Ordinance as regards lot line definitions. Staff also agrees that the County Board of Adjustment granted a variance for the fence wall height to be 5'6" within the required front yard setback (Brodiea Drive)where the ordinance would have only allowed a 3-1/2'tall wall.They also allowed up to an 8' high fence-wall within the required side yard setback (Eastern property line) as well as in the required rear yard setback (Northern property line) where the ordinance would have normally only allowed a 6' tall wall. LOT LINE DEFINITION Applicant: The front lot line should be the lot line that is in front of the house. The driveway accesses Brodiea Drive and the other houses on Brodiea Drive all have their front yards facing Brodiea Drive. The town's interest in enforcing the previously waived arbitrary definition is diminimis. Staff: The house does face Brodiea Drive in a similar manner as other houses on the street.That however does not alter the zoning definitions of the front and/or rear property lines. Staff disagrees that the definition is arbitrary and diminimis. Staff believes that this argument is only being made because the applicant is in violation of the regulation. A variance from a definition is not logical. The notion that if some of the Town's regulations are changed or ignored that the illegally built garage is somehow then in conformance is ridiculous. CONTRACTOR IS AT FAULT Applicant: The Contractor told the homeowners that he was licensed and that he would get the proper building permits.Then when he was caught by the Building Official he disappeared and cheated the homeowners. Staff: While the circumstances, if true, are unfortunate, any personal issues between the property owner and the contractor are not relevant to either the appeal of the interpretation or the variance criteria. The responsibility ultimately lies with the property owner to properly monitor the activities occurring on their property. The applicant admits that any hardship that may exist is self-imposed. The town is under no obligation to issue a variance due to a lack of diligence on the part of the property owner or the poor ethics of their contractor. The Town has also filed charges with the Registry of Contractors and will assist in the prosecution of the contractor if/when he is caught. GARAGE CONSTRUCTION Applicant: The applicant's civil engineer has stated that the garage appears to have been built in a structurally sound manner and within the building code requirements. Staff: The applicant's engineer may well be qualified to render such an opinion. However, he is not the Building Official and the town does not allow self-certification of construction. Additionally, the engineer's opinion neglects to note that the building codes require compliance with local zoning.The fact that the garage was built without a permit, in violation of both the Zoning Ordinance and the Building Codes, and without any inspections is not changed by the engineer's opinion. GARAGE LOCATION Applicant: The applicant's civil engineer has provided "as-built" plans in order to better show the current situation. These plans show measurements indicating that the encroachment into the setback is minor. Staff: The applicant's plan incorrectly labels the required side and rear building setbacks. The plan instead shows the setbacks as if the property lines had been re-defined,which they have not.The plan depicts the rear setback as 7'when in fact it is 25".The plan is not an accurate as-built plan. It is more of a"proposed" plan. Page 5 of 7 15809 E.Brodiea Dr. (Case AP 18-01) BOA 7/19/18 PUBLIC UTILITY EASEMENT Applicant: After the garage construction was stopped, the applicants have requested and been granted an abandonment of the Public Utility Easement along the rear property line. Staff: The public utility easement was 10' wide. The rear setback is 25'. The abandonment was necessary for the garage to be built in its current location. However, the easement was not the only issue with the location. The building setback remains at 25' and the garage encroaches approximately 16-1/2' into the setback and remains a violation. FINDINGS: The four findings which must be made by the Board of Adjustment in order to grant a variance are listed below. The applicants have provided their written justifications for each criterion in their attached narrative. The applicants have also provided photos of the current buildings as well as other supporting documents. Staff's responses are noted below: 1. There exist special circumstances or conditions regarding the land, building or use referred to in the application which does not apply to other properties in the district. Staff: There are no special circumstances or conditions regarding the land, building, or use referred to in the application that do not apply to other properties in the district. The proposal may seem reasonable at first glance. However, there is no topographic issue on the lot that requires that a new 2-car garage be constructed without a permit and encroaching into both the rear yard setback as well as a public utility easement.The new garage construction creates a new non-conformity where none previously existed. Hiring an unlicensed contractor who ran away when caught building without a permit does not qualify the homeowner for a variance because the project blew up. On the contrary, it demonstrates the self-imposed nature of the hardship. Staff does not believe that this criterion has been met. 2. The above special circumstances or conditions are preexisting and are not created or self-imposed by the owner or applicant. Staff: There are no special circumstances or conditions that are preexisting. All circumstances in this case are recently created and admittedly self-imposed by the owner/applicant and his contractor. The home, as well as the attached garage were fully conforming prior to the illegal construction of the detached garage which does not conform to the Town's setback requirements. Building without a permit in a location that is in violation of zoning setbacks is practically the definition of a self-imposed hardship. Staff does not believe that this criterion has been met. 3. The Variance is necessary for the preservation of substantial property rights. Without a Variance the property cannot be used for purposes otherwise allowed in this district. Staff: A Variance is not necessary for the preservation of substantial property rights. The property can be, and is currently used for purposes (Residence with a garage, pool, and other amenities) otherwise allowed in this district. The property is currently being used as a single-family residential dwelling and was, prior to the illegal construction, in conformance with the town's zoning ordinance. No variance is necessary for the property owners to use their property as permitted in the ordinance.There is certainly no requirement that a second garage be permitted in violation of the town's existing zoning setbacks. The rear yard setback encroachment on the north side is clearly and admittedly a self-imposed hardship. There is no loss of substantial property rights. It is not injurious to a property owner to require that they comply with the Building Codes and Town zoning ordinances. Staff does not believe that this criterion has been met. 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. Staff: The authorizing of a variance from a definition will be materially detrimental to persons residing or working in the vicinity of this property' and to the neighborhood, and to the public welfare because it will treat the subject property differently than other similar properties and it would set a poor precedent by rewarding illegal construction activities. Staff does not believe that this criterion has been met. Page 6 of 7 15809 E.Brodiea Dr. (Case API 8-01) BOA 7/19/18 Compliance with State Law: Staff recommends that the Board of Adjustment FIND that no variance may be issued under Arizona law due to the fact that any hardships being addressed in this hearing are clearly and admittedly self-imposed. ARS 9-462.06 H. A board of adjustment may not: 2. Grant a variance if the special circumstances applicable to the property are self-imposed by the property owner. Risk Analysis (options or alternatives with implications): NA Fiscal Impact (initial and ongoing costs; budget status): NA Staff Recommendation(s): Appeal of the Zoning Administrator's Interpretation: Staff recommends that the Board of Adjustment FIND that the Zoning Administrator's interpretation of the location of the Front Lot Line as being the narrower of the two street frontages (In this case Echo Hill Drive) of the corner lot located at 15809 E. Brodiea Drive is the correct interpretation of the definition of Front Yard, as stated in Zoning Ordinance Section 1.12—Front Yard, and that the Appeal of the Zoning Administrator's Interpretation be DENIED. Variance from Zoning Section 1.12—Front Lot Line: A variance request from a definition is completely out of the ordinary and staff does not agree that it should be considered. Nevertheless, in order for an applicant to be eligible for a variance the Board of Adjustment must find that all four variance criteria have been met. If even one of the criteria is not met the Board must deny the variance. It is staff's opinion that none of the four required criteria have been met. Staff recommends that the Board of Adjustment FIND that of the required four criteria for granting a zoning variance, none have been met as noted above, and that the requested Variance from the provisions of Zoning Section 1.12 be DENIED. SUGGESTED MOTIONS: Move that the Board of Adjustment adopt the findings outlined in the staff report and DENY the applicant's appeal of the Zoning Administrator's interpretation of Zoning Ordinance, Section 1.12 - Front Yard. Move to adopt the findings outlined in the staff report and DENY the applicant's requested Variance from the provisions of Zoning Ordinance, Section 1.12- Front Yard. Attachment(s): Letter of January 8, 2018 from the FH Chief Building Official Letter of April 30, 2018 from the FH Zoning Administrator Arizona Revised Statute 9-462.06 Aerial Site Plan Applicant's Submittal Package Submitted by: Robe Odgers, Date Development Services Director&Zoning Administrator Page 7 of 7 w° d '(?on o 1 n 44,is At`yoco Town of FOUNTAIN HILLS January 8,2018 Robert P/Barbra M Mandel 15809 E Brodiea Dr. Fountain Hills,Az 85268 RE: 15809 Brodiea DR Parcel: 176-16-545 Fountain Hills Plat 602C TR To whom it may concern: It is unlawful for any person, finn or corporation to erect, construct, alter, extend,repair, move, remove, demolish or occupy any building,structure or equipment regulated by the Building Code, or cause same to be done, in conflict with or in violation of any of the provisions of this code. Pursuant to the 2012 International Residential Code section RI 13.1 Unlawful acts. A detached structure has been constructed without first obtaining Town of Fountain Hills Building Permit approval. The detached structure is located in a rear yard having a minimum required setback from the property line of 25' feet to any building or structure. Town of Fountain Hills Zoning for your parcel is R1-10. No structures are permitted within the setback.No pennit approval will be given as the structure's location violates Zoning Ordinance Chapter 10, Section 10.09. The following actions shall be taken to abate the unpennitted conditions described. A demolition pennit shall be secured within 60 days of receipt of this notice to remove the structure located on the north side of the home. If a permit is not secured and the structure is not removed within the specified time the Building Official will order the building posted to prevent occupancy and may cause the Demolition work to be done and the cost thereof charged against the property owner. Any person having any record title or legal interest in the property may appeal any notice and order or action of the Building Official to the Board of Appeals,provided the appeal is properly filed within 30 days from the date of service of such notice and order; and that 16705 E.Avenue of the Fountains—Fountain Hills,Arizona 85268—(480)816-5100-Fax(480)837-3145 failure to appeal will constitute a waiver of all right to an administrative hearing and determination of the matter. In the event there is a change in record title or legal interest the conditions and stipulations described herein transfer with the property and will have the same time constraints starting from the original date of service. Peter Johnson Chief Building Official Town of Fountain ills 480-816-5127 pills i pjohnson@th.az.gov • �-- P4,^ '-- t U`1 N C,nkf 4`d ) ' i -1 4 16705 E.Avenue of the Fountains—Fountain Hills,Arizona 85268—(480)837-2003-Fax(480)837-3145 O��gAI1V�� TOWN OF FOUNTAIN HILLS . Mgr w . Development Services Department rhat Avvy�o April 30,2018 Mr.Christopher j.Enos Sternfels&White,PLLC 16803 East Palisades Blvd. Fountain Hills,AZ 85268 Re: 15809 East Brodiea Drive Mandel Residence Zoning Ordinance Interpretation Dear Mr. Enos: This letter is written in response to your correspondence dated April 2, 2018, regarding issues surrounding the proposed construction of a detached garage at the referenced residence. As you are aware,those issues include that(i)no building permit has been issued nor applied for from the Town of Fountain Hills ("Town") for the proposed construction; (ii) the garage structure encroaches on certain recorded easements, abandonment of which has purportedly been sought but has not yet been confirmed;and(ili)the placement of the proposed garage within the lot raises issues regarding compliance and minimum setback requirements of the Town Zoning Ordinance. The sole purpose of this letter is to address the setback issues which are raised under the Town Zoning Ordinance as a result of the specific proposed placement of the garage within the lot. This response will not address the lack of a required building permit nor the easement encroachment issues,which must be separately resolved by the owners of the property if they wish to proceed with the proposed garage. The Fountain Hills Zoning Ordinance Section 2.07.A permits an aggrieved party to request the Town's Zoning Administrator to issue an interpretation of provisions of the Zoning Ordinance and/or their application in specific circumstances. That interpretation may then be appealed to the Town's Board of Adjustment. While your recent correspondence did not specifically request such an interpretation,that appears to have been its general intent;so we will treat it as such a request, to which we provide the following response. As explained in prior correspondence and meetings, the Town Zoning Ordinance specifies minimum setback distances from lot lines to structures (such as the proposed garage) to be placed within a lot. Specifically with respect to a lot(such as the subject lot)within an R1-10 Single-Family Page 1 of 2 15809 East Brodiea Drive Zoning Ordinance Interpretation April 30,2018 Residential Zoning District,the minimum setbacks required are 25 feet from the"rear" lot line and 7 feet from the"side"lot line. Town Zoning Ordinance,Ch 10,Section 10.09. As you are presumably aware, based on information provided to the Town, the garage proposed and partially constructed on the subject lot is approximately 8.5 feet from the northeast lot line of the property,and approximately 23 feet from the west lot line. Accordingly,whether the minimum setback requirements of the Town Zoning Ordinance are satisfied depends upon whether the northeast property line is a"side"lot line or the"rear"lot line of the lot. For purposes of the Town Zoning Ordinance, a property's "rear" lot line is defined as that which is "opposite and most distant from the front lot line." Zoning Ordinance Section 1.12 "Definitions." The "front lot line" is defined differently depending on whether the lot is an interior lot or a corner lot:"In the case of a corner lot, [the front lot line is] the narrower of the two lot lines adjoining a street right-of-way." Based on the information provided,including the"As Built"drawing dated January 26,2018 and provided by the lot's owner,the subject lot is a corner lot adjoining the street rights of way for Echo Hill Drive and E.Brodiea Drive. The lot line adjoining Echo Hill Drive is clearly the"narrower" of the two,making that lot line the"front"of the lot by definition under the Ordinance. As a result, under the setback provisions and term definitions of the Zoning Ordinance, the property's northeast lot line is its "rear" lot line, and the placement of the garage only 8.5 feet from that line would constitute a substantial setback violation. The information provided also tells us that,when originally approved and constructed prior to the 1989 incorporation of Fountain Hills, the residence on the lot was subject to the Maricopa County Zoning Ordinance. The County Zoning Ordinance, Section 201, provides similar definitions of the"front,""rear,"and"side"lot lines under which,by definition,the lot line adjacent to Echo Hill Drive would have been the "front" lot line, and the northeast lot line, the closet to the proposed garage,would have been the"rear"lot line. Accordingly, it is the interpretation of the Fountain Hills Zoning Administrator that the location of the proposed garage is not in conformity with the setback requirements of the Zoning Ordinance. The correctness of this interpretation may be appealed to the Town's Board of Adjustment pursuant to the provisions of Section 2.07(A) of the Zoning Ordinance. Alternatively, the owners of the lot may appeal to the Board of Adjustment for a variance from the terms of the Zoning Ordinance in order to permit the construction of the garage in the proposed location despite non-conformity with the Zoning Ordinance. Either procedure will require the submission of the appropriate form (available from the Development Services Department) and payment of the applicable fee. Robe gers Development Services Director&Zoning Administrator Town of Fountain Hills CC:Mitesh Patel,Town Attorney Page 2 of 2 9-462.06. Board of adjustment A. The legislative body, by ordinance, shall establish a board of adjustment, which shall consist of at least five but no more than seven members appointed by the legislative body in accordance with provisions of the ordinance, except that the ordinance may establish the legislative body as the board of adjustment. The legislative body may, by ordinance, delegate to a hearing officer the authority to hear and decide on matters within the jurisdiction of the board of adjustment as provided by this section, except that the right of appeal from the decision of a hearing officer to the board of adjustment shall be preserved. B. The ordinance shall provide for public meetings of the board, for a chairperson with the power to administer oaths and take evidence, and that minutes of its proceedings showing the vote of each member and records of its examinations and other official actions be filed in the office of the board as a public record. C. A board of adjustment shall hear and decide appeals from the decisions of the zoning administrator, shall exercise other powers as may be granted by the ordinance and adopt all rules and procedures necessary or convenient for the conduct of its business. D. Appeals to the board of adjustment may be taken by persons aggrieved or by any officer, department, board or bureau of the municipality affected by a decision of the zoning administrator, within a reasonable time, by filing with the zoning administrator and with the board a notice of appeal specifying the grounds of the appeal. The zoning administrator shall immediately transmit all records pertaining to the action appealed from to the board. E. An appeal to the board stays all proceedings in the matter appealed from, unless the zoning administrator certifies to the board that, in the zoning administrator's opinion by the facts stated in the certificate, a stay would cause imminent peril to life or property. On the certification proceedings shall not be stayed, except by restraining order granted by the board or by a court of record on application and notice to the zoning administrator. Proceedings shall not be stayed if the appeal requests relief that has previously been denied by the board except pursuant to a special action in superior court as provided in subsection K of this section. F. The board shall fix a reasonable time for hearing the appeal, and shall give notice of hearing by both publication in a newspaper of general circulation in accordance with section 9-462.04 and posting the notice in conspicuous places close to the property affected. G. A board of adjustment shall: 1. Hear and decide appeals in which it is alleged there is an error in an order, requirement or decision made by the zoning administrator in the enforcement of a zoning ordinance adopted pursuant to this article. 2. Hear and decide appeals for variances from the terms of the zoning ordinance only if, because of special circumstances applicable to the property, including its size, shape, topography, location, or surroundings, the strict application of the zoning ordinance will deprive the property of privileges enjoyed by other property of the same classification in the same zoning district. Any variance granted is subject to conditions as will assure that the adjustment authorized shall not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zone in which the property is located. 3. Reverse or affirm, in whole or in part, or modify the order, requirement or decision of the zoning administrator appealed from, and make the order, requirement, decision or determination as necessary. H. A board of adjustment may not: 1. Make any changes in the uses permitted in any zoning classification or zoning district, or make any changes in the terms of the zoning ordinance provided the restriction in this paragraph shall ot 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. I. If the legislative body is established as the board of adjustment, it shall exercise all of the functions and duties of the board of adjustment in the same manner and to the same effect as provided in this section. J. In a municipality with a population of more than one hundred thousand persons, the legislative body, by ordinance, may provide that a person aggrieved by a decision of the board or a taxpayer who owns or leases the adjacent property or a property within three hundred feet from the boundary of the immediately adjacent property, an officer or a department of the municipality affected by a decision of the board, at any time within fifteen days after the board has rendered its decision, may file an appeal with the clerk of the legislative body. The legislative body shall hear the appeal in accordance with procedures adopted by the legislative body and may affirm or reverse, in whole or in part, or modify the board's decision. K. A person aggrieved by a decision of the legislative body or board or a taxpayer who owns or leases the adjacent property or a property within three hundred feet from the boundary of the immediately adjacent property, an officer or a department of the municipality affected by a decision of the legislative body or board, at any time within thirty days after the board, or the legislative body, if the board decision was appealed pursuant to subsection J of this section, has rendered its decision, may file a complaint for special action in the superior court to review the legislative body or board decision. Filing the complaint does not stay proceedings on the decision sought to be reviewed, but the court may, application, g on grant a stay and on final hearing may affirm or reverse, in whole or in part, or modify the decision reviewed. L N. -.,' 1o' cps ----` Ni r (NI 40;,‘-ip • -,:e';',0•5 i li 415.. to is g--:51c-- .,,,,, ... . . ..... .. 4z, co il rin". "14/0.7r) 1 1 .I •.., .....:Peei„, sNa in ,..1 \ ..s..,c_...4::, ...4.4.(4\1 % .sa. to ± .. _4:::, ...... , .1,..i. r%. 0 co. ...,t .c> -...014:.:, •...c.,......_ 0 m 00 .,,,.• NI it)• s.6' .42 0 11 OJ II Ai NJ as bo 01:\ t L i-cp � •. •fl � , .C� � o rti �� t E I ti 1) • • o� = ate, a, e A IA ARIII......2.. _..;._.. e. W CO• r a 4V. F I `its!_ .,s, i • `+i t N , ••`lxt Ya M - :1 V °4' h .' 1 N r lot #�:LL qq k • �3^ ; �e O O Zr) f .� 1*'3. , "' a e0-1 N 1� (-Ni N • �a r-1 I I I I II II • .. r� ' is- +t Lit wry E D t� lP1 r Is 4. 1 L Y ♦-+ in QJ R to ` �� "'i.j li V'l'.. -. :, . N Vim) STERNFELS & WHITE, P.L.L.C. Attorneys at Law SHAWN C.WHITE May 23, 2018 ROBERT B.STERNFELS* Via Email Only FREDERICK C.HORN+ "Inactive *ol Ganef Mr. Robert Rodgers, Director Development Services and Zoning Administrator 16705 E. Ave. of the Fountains Fountain Hills,AZ 85268 RRodgers(a,fh.az.gov Re: 15809 E. Brodiea Drive Dear Mr. Rogers: Due to various scheduling conflicts we respectfully request that the hearing(s) concerning the Application for Variance and Appeal of Administrator's Interpretation regarding the above referenced property be conducted at the July 19, 2018, meeting of the Fountain Hills Board of Adjustment. As stated in prior correspondence we will submit documentation to your office prior to June 1, 2018. Thank you. Since FOUNTAIN HILLS OFFICE ris gphe . Enos Stemfels&White,P.L.L.C. 18803 E.Palisades Boulevard Fountain Hills,Arizona 85268 Telephone 480.816.9985 Facsimile 480.816.5342 cc: Paula Woodward via email only poodward@fh.az.gov EMAIL: Shawn C.White,Esq. SWhitelstemtelslaw.com iptridc C.Horn,Esq. ®sternfelslaw.com STERNFELS & WHITE, P.L.L.C. cir Attorneys at Law SHAWN C.WHITE ROBERT B.STERNFELS* May 9, 2018 FREDERICK C.HORN•• Inactive 'O1 Counsel Robert Rodgers, Director Development Services Department and Zoning Administrator Town of Fountain Hills 16705 E.Avenue of the Fountains Fountain Hills,AZ 85268 Re: 15809 Brodiea Drive IDear Mr. Rodgers: Enclosed please find formal, duly executed Planning and Zoning Department Application of Mr. and Mrs. Mandel with supporting Narrative and our firm check #2622 in the sum of OneThousand Two Hundred and Twenty-Five ($1,225.00) Dollars, all relative to the detached garage project located at the above address. As per our conversation, all supplemental documentation materials may and will be submitted prior to June 1, 2018. FOUNTAIN HILLS OFFICE Sternfels 8 White,P.L.L.C. r,- 16803 E.Palisades Boulevard Fountain Hills,Arizona 85268 rist.�. .er J Enos Telephone 480.816.9985 Of Co 1:el Facsimile 480.816.5342 cje/gh EMAIL: Shawn C.White,Esq. HAND DELIVERED SWhiteOstemfelslaw.com Frederick C.Horn,Esq. FHornesternfelslaw.com Town of Fountain Hills tr. v ? i Itl fill thr 1 Dev Services Exec Assist � f1 . o� z AjN�rjl pt; DO Not write in this space —official use only r l �� °� Filing Date •5 z �Z 't Accepted By __- `;i= ', Fee Accepted 4. • Case Manager 9 a ae �• o YP -,. that is Act~ The Town of Fountain Hills PLANNING & ZONING DEPARTMENT - APPLICATION III Abandonment (Plat or Condominium) V Appeal of Administrator's Interpretation II Area Specific Plan &Amendments Concept Plan Condominium Plat Cut/Fill Waiver III Development Agreement HPE Change or Abandonment General Plan Amendment Ordinance (Text Amendment) III Planned Unit Development _ Preliminary/Final Plat II Replat (Lot joins, lot splits, lot line adjustments) III Rezoning (Map) Special Use Permit &Amendments Site Plan Review (vehicles sales) Temporary Use Permit(Median Fee, if applicable) 0 Variance Other PROJECT NAME / NATURE OF PROJECT: LEGAL DESCRIPTION: Plat Name 602C Block 2 Lot 1 PROPERTY ADDRESS: 15809 East Brodiea Drive,Fountain Hills,Arizona 85268 PARCEL SIZE (Acres) 0.5075068861977 Acres ASSESSOR PARCEL NUMBER 176-16-545 NUMBER OF UNITS PROPOSED TRACTS EXISTING ZONING H1-1 U PROPOSED ZONING A licant ✓ Mrs. Hobert manael ana tsarbara Mandel Day Phone 480 861 21s6 ✓ Mr. Ms. Address: 15809 East Brodiea Drive City: Fountain Hill State: AZ Zip: 85268 Email: onsiesta2@gmail corn Owner ✓ Mrs. Hobert manael ana ttaroara manael Day Phone 4tSU-tSb1-�1 bti ✓ Mr. Ms. Address: 15809 East Brodiea Drive City: Fountain Hills State: AZ Zip: 85268 If application is being submitted by someone oth than t ow r of the property under consideration,the section below must be completed. SIGNATURE OF OWNER ' J DATE Ii/. . 1,_/ I HEREBY AUTHORIZE Christopher J. Enos, q. , TO FILE THIS APPLICATION. Please Prir „� _Ibsened and s rnppefof t e m is �s /l day of _ AV , 20 / / LAIthiiilLiC 1140h r I Notary Public ' 's>. MELANIE G.ANDERELLI MUNIS CommtPaFon#516821 APPLICATION # „, ,.' Notary Public-State of Arizona •'.1/�` N1ARICOPA COUNTY My comm.ettpirea October 28,2020 Wednesday, May 09, 2018 Page 3 L front yard (emphasis added) where a maximum 3'6" height permitted, and 2) 8' fence height . . . along southeast side property line and within required rear yard (emphasis added) where 6' maximum height permitted in the R 1-10 Zoning District." In effect, the builder was asking that Board of Adjustment to waive the zoning requirement for the front and rear yards as they were "required" by reason of the same definition of "Front Yard" as is found in the current FHZL. (See, Appendix) The builder cited the unique properties of the site and requested variances to permit construction of walls that was inconsistent and not permitted with the "required" front yard and "required" rear yard. Instead, these walls were consistent and permitted with the front of the property being on Brodiea Drive. Minutes of the meeting of the Board of Adjustment reflect that the unique configuration of the parcel was observed by Board of Adjustment Member Nelson on August 9, 1989, when he noted "that he had visited the subject site and the proposed wall is a necessity as well as enhancing the appearance of the site." The variances for location of the same within "the required front yard" and the "required rear yard,"respectively, were granted. More specifically, the Board of Adjustment on 8/9/1989 (Case BO89-107) stated that the variances be "GRANTED by reason of any peculiar situation, surroundings or conditions of the specific property, or by reason of a specific property, or by reason of particular narrowness, shallowness or shape of a specific lot of record, or by reason of unusual topographical conditions, the strict application of any regulation of the Ordinance would result in practical difficulties or unnecessary hardship upon the owner of such property." The house was then built fronting on Brodiea Drive with all appurtenances constructed consistent with the front of the house being located on Brodeia Drive. The side of the yard on Echo Hill Drive was walled off. 3. More than 25 years later, Robert and Barbara Mandel became bona fide purchasers for value of the above referenced single family residence by Warranty Deed recorded November 30, 2015. The house still sits at the bend of Echo Hill Drive into Brodiea Drive. By all appearances the residence fronts on Brodiea Drive. The postal box, front door, and driveway and garage access are all located on Brodiea Drive. All assessor, taxing authority and other governmental information refer to this site as 15809 Brodiea Drive. The letter from the Town was addressed to 15809 Brodiea Drive. There is no address or access for this home on Echo Hill Drive. The walls and construction approved of in 1989 still stand. 4. In 2017, Mr. and Mrs. Mandel decided to add garage space by building a detached garage in an area that was already paved and used for parking. They hired an individual named Marcus Hill. The construction was to be within Town Code regulations and of a matching architecture to that of the residence. Mr. Mandel had met Mr. Hill when the latter was working on a different project in Fountain Hills. Wednesday, May 09, 2018 Page 4 Mr. Mandel thought that he did good work. Mr. Hill represented that he was a duly licensed contractor. Mr. and Mrs. Mandel then paid a total of$24,337.50 to Mr. Hill for the purpose of constructing a free standing garage in their side yard. Payments made to Mr. Hill included sums for the express purpose of securing an appropriate building permit from the Town of Fountain Hills. However, Mr. and Mrs. Mandel did not know that Mr. Hill was a fraud. He was not a licensed contractor. He had never applied for a permit with the town. He pocketed the money that was supposed to be for a permit. Mr. Mandel is now assisting the Arizona Registrar of Contractors in the prosecution of this individual. 5. During the course of what Mr. Mandel thought was permitted construction, he received a letter dated January 8, 2018, from Peter Johnson, Chief Building Official, Town of Fountain Hills, that indicated, among other things, that from the town's point of view, the left side of the premises was considered the rear of the premises, and therefore, the structure was not set back far enough from the lot line. Mr. Mandel then confronted Mr. Hill, who left the premises. Since that time, Mr. Mandel has undertaken to meet any and all responsibilities owed to the town, including assisting in the prosecution of Mr. Hill. 6. Presented herewith is a project map entitled "As-Built Accessory Garage,a, Mandel Residence, 15809 E Brodeia Drive" that was prepared by Montgomery Engineering & Management, LLC ("the Map") The Map discloses, among other things, that the boundary fences were all constructed consistent with the front of the premises being on Brodeia Drive. 7. The garage structure is located fully within the boundaries of applicant's property. The Map discloses that a small, triangular 2 sq. ft. projection of the structure onto a portion projected into P.U.E&D.E. Mr. Montgomery has obtained letters of abandonment from the respective stakeholder utilities. Mr. Montgomery, who is also a structural engineer, has also posited that the construction as it stands is generally sound and can be completed consistent with town building codes. Wednesday,May 09, 2018 Page 5 vas. APPLICATION #1 -APPEAL OF INTERPRETATION BY THE ZONING ADMINISTRATOR The Town of Fountain Hills Zoning Ordinance, Chapter 1, Secs. 1.08 (3) and (4) provides that the Zoning Administrator shall: 1.08(3) "Undertake preliminary negotiation with, and provide advice to, all applicants for zoning adjustment action, use permits, plan review or other action of the Zoning Administrator, the Planning and Zoning Commission, or the Board of Adjustment." and, 1.08(4). "Subject to general and specific policy laid down by the Planning and Zoning Commission and Town Council, interpret the zoning ordinance to members of the public, departments, and other branches of government." It is respectfully submitted that the Zoning Administrator improperly interpreted the Fountain Hills Zoning Ordinance, Chapter 1, Section 1.12 Definitions, reading "Yard, Front"by failing to take into account (a) the irregularity of the property lines of the subject property that front on Echo Hill Drive and Brodiea Drive, and (b) the prior rulings of the Maricopa County Board of Adjustment as made on August 9, 1989. Description of proposed project. This is an application to build a garage in a R1-10 residential district. Applicant agrees the minimum setbacks required are 25 feet from the rear lot line and 7 feet from the side lot line. Brief explanation of the reasons for the appeal. The Zoning Administrator determined the northeast property line of the subject parcel to be the rear property line and not a side property line, despite all of the foregoing listed facts. The Zoning Administrator correctly stated that the County Zoning Ordinance provided similar definitions of the term "front" lot line at the time of this home's construction. However, he did not address the impact of the granting of specific variances by the Maricopa Board of Adjustment that relieved the builder of this home from adhering to that definition. In effect, his literal interpretation of the code ignored the findings by that board as though they had never been made. That Board of Adjustment determined, albeit without specifically so stating, that the front yard of the parcel was on Brodiea Drive. It is submitted that the Zoning Administrator could have cited that ruling and interpreted the front yard to be on Brodiea Drive for this project. He didn't. However, the Board of Adjustment in hearing this appeal, may reverse or affirm, wholly or partly, or modify the order, requirement or decision of the Zoning Administrator appealed from and make such order, requirement, decision or determination, as it may deem necessary. (emphasis added) It is respectfully submitted that this Board may and Wednesday, May 09,2018 Page 6 L should now recognize the findings of 1989 to be a de facto interpretation that this property fronts on Brodiea Drive, and permit this project to move forward. CONCLUSION TO APPLICATION #1 - APPEAL OF INTERPRETATION BY THE ZONING ADMINISTRATOR It is respectfully submitted that, in this case, interpretation of the FHZO Sec. 1.12 "Lot Line, Front" should be based upon the 1989 waiver by the Maricopa County Board of Adjustment and the physical facts and permitted history of the subject property, all of which demonstrates that the fronts of all subject structures on this lot are located on Brodiea Drive; and, have been deemed so since the construction of the property in 1989. Therefore, it is formally requested that Zoning Ordinance Sec. 1.12 be interpreted to mean that Mr. and Mrs. Mandel's proposed construction complies with town of fountain hills zoning law setbacks. ‘41.. Wednesday, May 09, 2018 Page 7 L APPLICATION #2 - REQUEST FOR A VARIANCE pursuant to Fountain Hills Zoning Ordinance, Chapter 2, Section 2.07(B) from the terms of the Zoning Ordinance, Chapter 1, Section 1.12 Definitions, reading"Yard, Front", because of prior variances having been granted in 1989, and special circumstances applicable to the property. NARRATIVE REPORT PROJECT DESCRIPTION: This is an application to build a detached garage in a R1-10 residential district. Applicant agrees minimum setbacks required are 25 feet from the rear lot line and 7 feet from the side lot line. VARIANCE JUSTIFICATION: "Justification of Variance" addressing each of the following criteria: A. There exist special circumstances or conditions regarding the land, building or use referred to in the application that do not apply to other properties in the toirw district. See, Factual Narrative Items Nos. 1 and 2, supra. Topography, shape and location - Subject parcel was and is a relatively unique and irregular lot. It is at the "intersection" of Brodiea Drive and Echo Hill Drive. However, it is not a standard 90 degree intersection. This peculiarity of this lot was the subject of discussion on August 9, 1989, at a meeting of the Maricopa County Board of Adjustment after which the Board granted variances that effectively reset the front and rear property lines of the property. House across the street(15770 E Echo Hill Drive) also has its front yard on the longer of the two street lines —in that case, Echo Hill Drive. House that is adjacent (15827 E Brodiea Drive) also faces on the continuation of the long curve that is the front of the subject parcel. B. The above special circumstances or conditions are preexisting and are not created or self-imposed by the owner or applicant. The same topography that exists today is the reason that the home was located facing Brodiea Drive to begin with. Physical grade restrictions appear to have been the reason that the front of the house, and all methods of ingress and egress to and from the home, were placed on Brodiea Drive, and not Echo Hill Drive. In 1989, there was a site visit resulting in one of the members of the Board declaring that the proposed wall, and hence the granting of the variance, was a"necessity." See, Extract of Board of Adjustment Minutes of 8-9, 1989, BA 89-107, Case Location: 15809 E. Brodiea Drive, submitted herewith. As noted above, a side wall was permitted to be built on what otherwise would Wednesday, May 09, 2018 Page 8 4164, have been the "Front side" of the corner lot. Therein, the Board Granted the application "by reason of any peculiar situation, surroundings or conditions of the specific property, or by reason of particular narrowness, shallowness or shape of a specific lot of record, or by reason of unusual topographical conditions, the strict application of any regulation of the Ordinance would result in practical difficulties or unnecessary hardship on the owner of such property." The same "particular narrowness, shallowness or shape"and"conditions of the specific property" that existed in 1989 still exist today. Now, as then, "the strict application of any regulation of the Ordinance would result in practical difficulties or unnecessary hardship upon the owner of such property." This same condition of the parcel was not deemed to be a self-imposed hardship to Myers Custom Homes in 1989. It should not be deemed a self imposed hardship on Mr. Mandel today. C. The Variance is necessary for the preservation of substantial property rights. Without a variance, the property cannot be used for proper purposes otherwise allowed in this district. Detached garages are a permitted use within the district. If this is not granted, then such a garage cannot be built on this lot even though there is ample space to do so. Here, As shown on the Montgomery Map, with Brodiea Drive as the frontage, the proposed garage will be located in accordance with all town codes. As per Mr. Montgomery, of Montgomery Engineering and Management, LLC, the building is structurally sound and can be finished consistent with all Town codes. Measurements as set forth on the Map indicate the following: The garage addition is 8.4' to the northeast property line. For R1-10 zoning, the setback is 25' at a rear yard and 7' at a side yard. Also, the addition is 23' from Brodiea where 20' is currently required for a side street or front setback. The building height is under 15' high from current grade. Based upon inspection and photos from the owner, the floor does not appear to be elevated by fill. Therefore, assuming the proper application and fees being submitted to the Town, it would appear that this garage structure is within code. The town's interest in now enforcing the previously waived arbitrary definition of FHZO Sec. 1.12 "Lot Line, Front" is de minimis. There's no serious injury to the town in permitting the completion of the structure. However, the injury to the homeowner would be severe as it would require the demolition of an existing structure that has otherwise been built in accordance with all town building codes. The town would gain a Pyrrhic victory. However, as to Mr. Mandel, the construction would be required to be torn down. Mr. Mandel would suffer the loss of over$24,000 plus the cost of demolition. He would lose the ability to provide for a needed accessory structure. Indeed, virtually all other development of the parcel would be eliminated. Wednesday, May 09, 2018 Page 9 L D. 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. Garage will be constructed consistent with all town building codes and will be architecturally identical to primary residence structure. This is not a use variance. Nor, is it an area variance. It is a variance from the definition of as found in FHZL Sec. 1.12 "Yard, Front: . . . For a corner lot, the front yard is the narrower of the two street side frontages." Other houses on Brodiea Drive have similar lengths to their front yards as the subject property. It would have looked out of place if the side yard of the subject property had been placed on Brodiea Drive. It was not, by permission of the Maricopa County Board of Adjustment. If the variance is granted, then the garage can be built without any other variances, and will look like other garages in the neighborhood. Notably, the house across the street (15770 E Echo Hill Drive) also has its front yard on the longer of the two street lines— in that case, Echo Hill Drive. Also, the house that is adjacent (15827 E Brodiea Drive) also faces on the continuation of the long curve that is the front of the subject parcel. CONCLUSION TO APPLICATION #2 - REQUEST FOR A VARIANCE It is formally requested that Mr. and Mrs. Mandel be permitted a variance from the Definition of"Yard" as found in FHZO Section 1.12 - that would acknowledge the obvious - that 15809 Brodiea Drive is actually on Brodiea Drive. R,o fully Submitted, Christopher J. Enos, of counsel Sternfels & White, PLLC Attorneys for Applicants 16803 E. Palisades Blvd. Fountain Hills,AZ 85268 Telephone: 480-816-9985 Facsimile: 480-816-5342 www.sternfelslaw.com I STERNFELS & WHITE, P.L.L.C. Attorneys at Law l SHAWN C.WHITE ROBERT B.STERNFELS* May 22, 2018 FREDERICK C.HORN** *Inactive Robert Rodgers, Director **Of Counsel Development Services Department and Zoning Administrator Town of Fountain Hills 16705 E.Avenue of the Fountains Fountain Hills, AZ 85268 Re: 15809 Brodiea Drive Dear Mr. Rodgers: Enclosed please find our firm check #2633 in the sum of One Thousand ($1,000.00) Dollars, together with two (2) complete sets of mailing labels %.ftr►' provided as per instructions, all relative to the detached garage project located at the above address. The supplemental documentation materials may and will be submitted prior to June 1, 2018. ery t FOUNTAIN HILLS OFFICE Sternfels s White,P.L.L.C. riisto t J. Os 16803 E.Palisades Boulevard Of cou el Fountain Hills,Arizona 85268 cje/gh Telephone 480.816.9985 �I Facsimile 480.816.5342 HAND DELIVERED EMAIL: Shawn C.White,Esq. v V • •"`P`t i -1--' SWhfteasternfelsl aw.com Frederick C.Horn,Esq. FHom@sternfelslaw.com it L li Lay APPENDIX OF EXHIBITS Re: 15809 East Brodiea Drive 1. Maricopa County Zoning Ordinances (1989) 2. Pre-Construction Variances for Fences on Perimeter (1989) 3. Photographs 15809 East Brodiea Drive (2015) 4. Warranty Deed to Robert and Barbara Mandel (2015) 5. Contract for Garage "Hernandez Contracting, LLC" (2015) 6. Checks Paid to "Marcus Anthony Hill" 7. Garage Construction Photographs (11/2017-1/2018) 8. Letter from Town of Fountain Hills (1/8/2018) 9. Unlicensed Contractor Complaint (3/2018) 10.Letter to Town of Fountain Hills (4/2/2018) 11.Opinion Appeal From: Letter from Town of Fountain Hills (4/30/2018) 12.Application and Letters of Abandonment of PUE's (2018) 13.Montgomery Engineering Existing and Remediation Plans (2018) Wednesday, May 09, 2018 Page 2 coy PLANNING AND ZONING DEPARTMENT APPLICATION Re: 15809 E Brodiea Drive, Fountain Hills, AZ 85268 The following constitutes the supporting narrative for the following applications: • APPLICATION # 1 - APPEAL OF INTERPRETATION BY THE ZONING ADMINISTRATOR made April 30, 2018, pursuant to Fountain Hills Zoning Ordinance, Chapter 2, Section 2.07(A)5 from an interpretation of the Fountain Hills Zoning Ordinance, Chapter 1, Section 1.12 Definitions, reading"Yard, Front: A yard, the depth of which is the minimum required horizontal distance between the front line and the front yard setback line,which yard extends across the full width of the lot. For a corner lot, the front yard is the narrower of the two street side frontages"; and • APPLICATION #2 - A VARIANCE pursuant to Fountain Hills Zoning Ordinance, Chapter 2, Section 2.07(B) from the terms of the Zoning Ordinance, Chapter 1, Section 1.12 Definitions, reading "Yard, Front", because of prior variances having been granted in 1989, and 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; to wit: from that portion thereof that specifies that the "front yard is the narrower of the two street side frontages." DESCRIPTION OF PROPOSED PROJECT AND FACTS PERTINENT TO BOTH APPLICATION #1 and APPLICATION#2 FACTUAL NARRATIVE: 1. This Subject Parcel was and is an irregular lot. It is at the "intersection" of Brodiea Drive and Echo Hill Drive. However, this is not a standard 90 degree intersection. Rather, Echo Hill Drive curves and merges continuously into Brodiea Drive on an arc. This then causes the lot lines of the subject parcel to bend to an interior angle of approximately 85 degrees. Brodiea Drive then proceeds immediately along yet a further arc on Brodiea Drive, making the subject parcel, in effect, an end parcel. 2. This peculiarity of this lot was the subject of discussion on August 9, 1989, at a meeting of the Maricopa County Board of Adjustment. At that meeting, Myers Custom Homes, Inc., the builder of the proposed house on this lot, specifically asked for variances to permit "1) 5'6" fence height . . . to be located within the required MARICOPA COUN ' ZONING ORDINANCES 1989 0 I, N i'• l -1 F.Y W F- b Z c U W \. Z M . . 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C rosive or noxious materials, such as dust, fumes, or noise that could be dangerous, injurious, distasteful, pernicious or obnoxious to man, other organisms or properties; and further excluding any other use otherwise permitted in the zoning district in which the Mini-Warehouse is located. 86) Yard: The open space at grade level between a building and the adjoin min g lot lines, unoccupied and unobstructed by any portion of a structure from the ground upward, except as otherwise provided in this Ordinance. In measuring a yard for the purpose of determining the width of a side yard, the depth of a front yard or the depth of a rear yard, the minimum horizontal distance between the lot line and the principal building is to be used; however, on any lot wherein a setback line has been established by the regulations of this Ordinance for any street abutting the lot, such measurement is to be taken from the principal building to the setback line. See "Yard, Required". 87) Yard, Front: A yard extending across the front width of a lot and being the minimum horizontal distance between the street line and the principal building or any projection thereof, other than steps, un- enclosed balconies and unenclosed porches. The front yard of a corner lot is the yard adjacent to the designated front lot line. 88) Yard, Rear: A yard extending between the side yards of a lot or between the side lot lines in the absence of side yards, and being the minimum horizontal distance between the rear lot line and the rear of the principal building or any projection thereof, other than steps, unenclosed balconies or unenclosed porches. On corner lots and inte- rior lots the rear yard is in all cases at the opposite end of the lot from the front yard. 89) Yard, Required: The minimum open space as specified by the regulations of this Ordinance for front, rear and side yards, as dis- f tinguished from any yard area in excess of the minimum required. See "Buildable Area". 90) Yard, Side: A yard between the building and the side lot line of a lot and extending from the front yard to the rear lot line as de- fined or along the full depth in absence of front and rear yards and being the minimum horizontal distance between a side lot line and the side of the principal building or any projection thereof, other than steps, unenclosed balconies or unenclosed porches. An interior side yard is defined as the side yard adjacent to a common lot line. 91) Zoning District: Any portion of the unincorporated area of Maricopa County in which the same zoning regulations apply. •1 - •4 92) Zoning Clearance: The issuance of a permit or authorization by the Zoning Inspector indicating that a proposed building, structure or use of land meets all the standards contained in this Ordinance. #: - 93) Zoning Inspector: The Director of the Maricopa County Plan- ning and Development Department or his duly authorized representative. 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HH } x 1- - \ \ ® o ) 0 0 0 0 0 0 = \\ - - 20 § - / > ; mggR { } « - m r R e ® « Li) m m «2 !y D / / - o< / o§en 0 o 0 U< < ct 2 2 CD '4 m a � n }. \-J / ® N \ \}\ » . - e g v s R a CD R m@ 0 0 0 \;2 81 o,0 -0 in m R R g en r � � R k = a §j // ; _\\ )% / CVCV CV Ca CNI C., CV CV CVCaca Ca p N a a J . j ., h \ d, d, ' � — L E • PRE-CONSTRUCTION VARIANCES FOR FENCES ON PERIMETER 15809 EAST BRODIEA DRIVE 1989 • 3200-026 Avp. 'Winn lilittrd of . butil.. aprc# MARICOPA COUNTY, ARIZONA District No 2 Application No BA 8 9-10 7 h Receipt No. Amount $75 . 00 Date July 12 , 1989 Richard Myers, Pres . Applicant Myers Custom Homes, Inc. Owner G. Michael Welch Mailing Address P.O . Box 17318 City Fountain Hills Zip Cade85269-7318 Phone (602) 837-0120 Zoning District R1-70 (H.D.) LEGAL DESCRIPTION Assessor - Book 176 Map 15 Parcel 545 Subdivision Fountain Hills Metes & Bounds Sec. 15 & 16 , T3N, R6E Unit No. Plat 602C Block No. 2 Lot No. 1 Location Address 15809 E. Brodiea Drive Zoning Map Page A-51 Document No. --- /Docket --- Page --- Applicable M.C.Z.O. Section Art. IX, Sec . 902 , Pq. IX-1 The above petitioner hereby APPLIES FOR ;11t.torlsr• i (Variance) (lI cRe xr t4x(Other f stl'lke out word not applicable) as indicated below in accordance with provisions of Chapter 58, House Bill 35, an Act of the State of Arizona Nineteenth Legislature, Regular Session: VARIANCES to permit: 1) 5 ' 6" fence height (combination retaining wall/ RrOUEST - wrought iron) to be located within the required front yard where a maximuma' 6"height permitted, and 2) 8' fence height (combination retaining wall/wrought iron) along southeast side within required rear property line and wi 1p ed reartyard where 6 ' maximum height Permitted in the APPLICANT'S STATE (Wardship Involved) Grounds for Appeal "Because the natural tonngraph of the lot does not provide adequate area for a rear yard pool . a retaining wall (5 ' 0" max. height) is utilized at the rear property line to maximize the size of the rear yard and allow an area for a pool. Because this wall creates a 5 ft. (max.) elevation drop and there is a requirement for security fence around the Pool: we request a variance to place a fence on top of the retaining wall to meet these safety and security requirements . " (5 i gned) r �r_Q ,fir Date APPEAL TO SUPERIOR COURT ACTION PERTINENT DATA Posting Date No. Posters References Hearing BP89-2079 SFR & WALL Date Time Initials '28/89 2 Ltr of authorization 8/9/89 9 :00a.m. RB BA89-107 • BA .89-107 APPLICANT: Richard Myers, President DISTRICT 2 Myers Custom Homes, Inc. �._ CASE LOCATION: 15809 E. Brodiea Drive ZONING DISTRICT: R1-10 (H.D. ) REQUEST: VARIANCES to permit: 1) 5'6" fence height (combination retaining wall/wrought iron) to be located within the required front yard where a maximum 3'6" height permitted, and 2) 8' fence height (combination retaining wallArrought iron) along southeast side property line and within required rear yard where 6' maximum height permitted in the R1-10 (H.D. ) Zoning District. Mr. Larry Kivela, Planner, presented the departmental Staff Report to the Board of Adjustment, -and further stated that there are no complaints on record. A memorandum dated August 4, 1989, was received from the County Flood Control District recommending that 1) an Abandonment of Easement from the County Highway Department, and 2) a Drainage Clearance be obtained from the Flood Control District prior to issuance of a Building Permit. A letter dated August 7, 1989, from the Fountain Hills Committee of Architecture, Inc. , recommending approval of subject Variance request was received. Mr. Richard Myers, President of Myers Custom Homes, Inc. , applicant, was present at the hearing. Member Nelson advised the Board that he had visited subject site and that the proposed wall is a necessity as well as enhancing the appearance of subject property. The Board reviewed the information in the Staff Report and then discussed all input received on the matter. After due consideration, the Board took the following action: ACTION: It was moved by Member Nelson that Case BA 89-107, a request for VARIANCES to permit: 1) 5'6" fence height (combination retaining wall/wrought iron) to be located within the required front yard where a maximum 3'6" height permitted, and 2) 8' fence height (combination retaining wall/wrought iron) along southeast side property line and within required rear yard where 6' maximum height permitted in the R1-10 (H.D. ) Zoning District, be WANTED by reason of any peculiar situation, surroundings or conditions of the specific property, or by reason of particular narrowness, shallowness or shape of a specific lot of record, or by reason of unusual topographical conditions, the strict application of any regulation of the Ordinance would result in practical difficulties or unnecessary hardship upon the owner of such property. It was further stipulated that the applicant shall 1) apply for an Abandonment of Easement from the County Highway Department prior to issuance of a Building Permit, and 2) secure a Zoning Clearance/Building Permit from the Department of Planning and Development prior to construction of the combination masonry/ wrought iron fence. Member Teague seconded the motion, which passed unanimously. EXTRACTS OF BOARD OF ADJUSTMENT MINUTES OF �- 1989 CASE NO. �049 _ ,D 7 PHOTOS 15809 EAST BRODIEA DRIVE 2015 A K d } 44 litH' .�a.'F, Z't,- 4. \'Sic;••f ''�'ti' 14 4,y` 1 ,-,.,'fit - ' . _ �`�0-,:E xs }• j L�' 3r ,r j � ,t i x ~�f 0* , if ,_ Sy , a '• ♦ .i.r yr fi'" w 11/ (10? 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',-,i't . , - • ... ,.- - '. •,,, 7 •1 •....' .1(1. ,, .'i' ' '. . 1., is;., •',".'.„ s...,,- --'.:'.I.S.+i ,,,-- = ' - ' , ' .' • ' .:.,;....v.,,,'•;14.-7Az.0:;;4.!.• '.'.-‘'-:., • #' 5i-•-i''.15A,) 1:-.9 4,1-it, ''' •.; ..,,)-'"•$1.--•`1 4 -411 '44'1.:4 •'.kJ-, Air,- 4%4•'" k• 41:' ''.." • I •-• .:'t' 1 z..c...:-;„,t; 'vrg.,... . \-45'.1.i, s..v.•':' ..r, ..,.;;;:,, I f;.C.1.*e."'4ifey .''''A. '..'• ''',%eql, ---,,, 7. 'A-.'',4).4•4','..le.k.". %,-4; •.- 7. .. -- •-:"1, . . • .::' :•:, .--')•.4.A r.t-,'•':}%.•-,..!‘,, - , ,it . 'Now WARRANTY DEED TO ROBERT AND BARBARA MANDEI 15809 EAST BRODIEA DRIVE 2015 OFFICIAL, RECORDS OF MARICOPA COUNTY RECORDER HELEN PURCELL RECORDING REQUESTED BY 20150847130 11/30/2015 12 : 42 OLD REPUBLIC TITLE AGENCY ELECTRONIC RECORDING ORDER #: 4724016295 WHEN RECORDED MAIL TO 4 6 7 7 614 0—2—3—2—— Robert P. Mandel, Barbara M. Mandel chagollaj 2163 Lima Loop PMB 130-274 Laredo, TX 78045 Zo-V Z. SPACE ABOVE THIS LINE FOR RECORDER'S USE WARRANTY DEED For valuable consideration, receipt of which is hereby acknowledged Jeanne H Lachowicz,a widow Do hereby convey to Robert P. Mandel and Barbara M. Mandel, husband and wife the following real property situated in Maricopa County,Arizona: Lot 1, Block 2, FOUNTAIN HILLS ARIZONA, FINAL PLAT NO. 602—C, a subdivision recorded in Book 166 of Maps, page 33, records of Maricopa County, Arizona; EXCEPT all oil, gases and other hydrocarbon substances, coal, stone, metals, minerals, fossils and fertilizers of every name and description, together with all uranium, thorium or any other material which is or may be determined to be peculiarly essential to the production of fissionable materials, whether or not of commercial value as reserved in instrument recorded in Docket 10044, page 496; and EXCEPT all underground water in, under or flowing through said land and water rights appurtenant thereto, as reserved in instrument recorded in Docket 10044, page 496. SUBJECT TO existing taxes, assessments, covenants, conditions, restrictions, rights of way, easements and all other matters of record. The undersigned hereby warrants the title against all persons whomsoever, subject to the matters above set forth. Dated: November 19, 2015 �j �v��.. � • ��� o,,^° ,r TMSUZANA�+A,V L.UV "' Jeanne H Lachowicz � , /CH I! Mobnly Public_Slate of Arizona ] MARICOPA COUNTY ''� , My Commission Exnlres State of Arizona --- January 24 2078 County of Maricopa The foregoing instrument was acknowledged before me this 19th day of November, 2015 by Jeanne H. Lachowicz. Notary 20150847130 Escrow No.: 4724016295 ACCEPTANCE OF COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP Robert P. Mandel and Barbara M. Mandel, each being duly sworn upon oath for himself or herself, and jointly, but not one for the other, deposes and says: That I am one of the Grantees named in that certain Warranty Deed deed which is Dated November 19, 2015 and executed by Jeanne H Lachowicz, a widow, as Grantor and Robert P. Mandel and Barbara M. Mandel, husband and wife, as Grantee and which instrument concerns the following described property: Lot 1, Block 2, FOUNTAIN HILLS ARIZONA, FINAL PLAT NO. 602—C, a subdivision recorded in Book 166 of Maps, page 33, records of Maricopa County, Arizona; EXCEPT all oil, gases and other hydrocarbon substances, coal, stone, metals, minerals, fossils and fertilizers of every name and description, together with all uranium, thorium or any other material which is or may be determined to be peculiarly essential to the production of fissionable materials, whether or not of commercial value as reserved in instrument recorded in Docket 10044, page 496; and EXCEPT all underground water in, under or flowing through said land and water rights appurtenant thereto, as reserved in instrument recorded In Docket 10044, page 496. THAT the interests of the undersigned are being taken by them as COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP, and not as Tenants in Common or as Joint Tenants; and THAT each of us individually and jointly hereby assert and affirm that It is our intention to accept said instrument as such COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP and to acquire any interest in, or any proceeds arisin ut of ai roperty, not as Tenants in Common and not as Joint Tenants, but as COMMUNITY PROP H- OF SURVIVORSHIP. R ert P. r� 977; SUZAfJA f?AV b Ch Barbara M. Mandel ggs' NotaMARICc-StateofMzona iIJ �� FAFtRI.".OPA COUNTY . My Commission Expires ___ `Jaruary 24.2016 State of Arizona County of Maricopa The foregoing instrument was acknowledged before me this 1)0 day of IJU VQ vn b4{,_26 15 by Rob:rt P. Mandel and Barbara M. Mandel. SP/sp CONTRACT FOR GARAGE "HERNANDEZ CONTRACTING, LLC" 2015 Hernandez Contracting LLC Client: Bob Address: 1.5809 E. Brodiea Dr.Fountain Hills, AZ Proposal and Contract 10/27/2017 We proposed to furnish all labor and materials to complete the new change for this project including removal of all debris. INCLUSION: SCOPE OF WORK I. Prep ground work to pour a I 0x20 concrete slab 2. Construct 10x20 single garage 3. Exterior will match existing stucco of house 4. Parapet and roof to match existing house 5. Electrical to be ran to garage 6. Dry wall interior of garage 7. Install a 8x7 garage door with opener(upgraded door optional) 8. Provide plans and permits and pass inspection cir Total Contract Price: $17,500 Time Frame to Completion: 4-6 weeks after blueprints of plans Payment Condition: 1. 60% down at signing of contract ($10,500) 2. 30% down half-way through project completion, Note: GC discretion($5,250) 3. 10% down at completion of project ($1,750) fir.. 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',.Aik , Yl �x r(fir, S f 3� } 014, LETTER FROM TOWN OF FOUNTAIN HILLS 15809 EAST BRODIEA DRIVE 1/8/2018 )} n 9 • Town of FOUNTAIN HILLS •3 , �bAt rs ati'° January 8, 2018 Robert P/Barbra M Mandel 15809 E Brodiea Dr. Fountain Hills, Az 85268 RE: 15809 Brodiea DR Parcel: 176-16-545 Fountain Hills Plat 602C TR To whom it may concern: It is unlawful for any person, firm or corporation to erect, construct, alter, extend,repair, move, remove, demolish or occupy any building, structure or equipment regulated by the Building Code, or cause same to be done, in conflict with or in violation of any of the provisions of this code. Pursuant to the 2012 International Residential Code section R113.1 Unlawful acts. A detached structure has been constructed without first obtaining Town of Fountain Hills Building Permit approval. The detached structure is located in a rear yard having a minimum required setback from the property line of 25' feet to any building or structure. Town of Fountain Hills Zoning for your parcel is R1-10. No structures are permitted within the setback.No permit approval will be given as the structure's location violates Zoning Ordinance Chapter 10, Section 10.09. The following actions shall he taken to abate the unpenmitted conditions described. A demolition permit shall be secured within 60 days of receipt of this notice to remove the structure located on the north side of the home. If a permit is not secured and the structure is not removed within the specified time the Building Official will order the building posted to prevent occupancy and may cause the Demolition work to be done and the cost thereof charged against the property owner. Any person having any record title or legal interest in the property may appeal any notice and order or action of the Building Official to the Board of Appeals, provided the appeal is properly filed within 30 days from the date of service of such notice and order; and that 16705 E.Avenue of the Fountains—Fountain Hills,Arizona 85268—(480)816-5100-Fax(480)837-3145 Low failure to appeal will constitute a waiver of all right to an administrative hearing and determination of the matter. In the event there is a change in record title or legal interest the conditions and stipulations described herein transfer with the property and will have the same time constraints starting from the original date of service. Peter Johnson Chief Building Official Town of Fountain ills ;•' 480-816-5127 ;g I Y 4 pjohnson@fh.az.gov �--" 4%-o 1 J4/4 L ( ru5 €r-sl L 16705 E.Avenue of the Fountains—Fountain Hills,Arizona 85268—(480)837-2003-Fax(480)837-3145 • UNLICENSED CONTRACTOR COMPLAINT 3/2018 Unlicensed Complaint Form ,4,r_ar Departmental Use Only U/' Unlicensed Entities or � .; .'' o Complaint Number: Revoked/Expired Licenses g ' .1. ,i , Mail to: ..- Registrar of Contractors �,. `'•,,.�4s P.O. Box 18243 Phoenix, AZ 85005-8243 Please note that if your contractor was not licensed or the license was revoked or expired at the time of contract, you are not eligible for the Recovery Fund. However, you still have the right to file a civil claim with your local civil court or request restitution in a criminal proceeding. Person Filing Complaint Full Name(First MAdle tjaa t) Business Name(if a licensed contractor or supplier) ROC License Number(s)(if any) Street Address_ City St e Z4ipc n inn L E41m...a wIQ,. �b() #iN 41446 MZ 8Sz.CO Phone Number D to of Birth Email yip-cd61 - 2,1 G St k3 14141 ONS 1 ESY4 2q)4‘0101L,GbM I consent to receive communications electronically in connection with this case X Yes 0 No Name of Attorney(if any) C1lR1s ENOS Street Address of Attorney i Stat Zip /10 /d3 ,Pali54J,ee 4 11.4 . P 1,]l AZ isSZ.6$ Phon Number of Attor e Email of Attorney a5 9.4` 95� Et4o .f414. AEA GA0.Ce rn Contractor Information ame(as shown on cmgqtract/invoice) ROC License Number(s)(if any) Aft .VS I-g PST 14pNI 14%1 , Street Address i Sta —' 1 c I b Lb:YE VCV ,5e4 0 1 IlloCN 1X � Z Sooll Phone Number Email t t?,i, q/ /lr6 Q Name of Person(s)Representing License Did you know contractor was unlicensed? 0 Yes X No c� If no, when did you learn they were unlicensed? _ Z.®1 b Description of Unlicensed Person Age p Height A Weight Race 2,1 Ti i 1 17 O Choose an item LiCr Contract/Project Information . Contract Date C tract Amount Am nt Paid ov IC)1 y 31.5d N �•� o 00 �.;. 3 Date o Da ark Started ork Stopped Datefork Was Completed Address Wheryact Was Negotiat C[i.' Stat�j Zip 1�0°t .Jit61 i A 4L, f• �. `•IZ. $Vt(?) ISParties Prent at Contract Neg lion IS.Mot3AQA V+i•I E,4 4 t1DCUS A,.4N-000 u,1.1,. Jobsite Street A re Ciit�c,. St e Zip I%PI L• Rap MA 1. it f.IN• G % Page 1 of 2 RCC099U 01/16 4 =r_sw, Unlicensed Complaint Form Unlicensed Entities or o '' r Revoked/Expired Licenses Contract/Project Information Continued This complaint is for MAbandonment OPoor Work OOther Have you filed a complaint in court? ()Yes allo ON/A If yes, provide a copy of the civil complaint The contract was ()Written ()Oral NBoth All change orders were ()Written ()Oral 00Both ON/A This project was ()Commercial Residential ()On Tribal Land This project involved ONew Home °Remodel ()Repair it Other NEW ttOMACE °Contractor °Property Owner °Building permit# A building permit was obtained by What city/county issued the permit? The contractor had # 5 employees (list names if known) List and briefly describe each complaint item(attach additional pages if necessary to further describe issues or list complaint items) (limited to 80 characters per line) 1. • [CM o v hrs r,.e�`tfzt - us 4f-i 'rProU44 Flews ai Pam'`wr t 15 2. r 1\ (' �+ DPa SS � a c�'r ¢` r LL- r k l Est •OX �i "Tad` 3. 1 f-- 4. �� 5. 6. 7. 8. 9. 10. Signature • I declare under penalty of perjury that the information and documents contained on this Complaint Form, included with this complaint, or hereafter submitted in support of this complaint are true and accurate to the best of my knowledge. I will assist in the investigation or in the prosecution of the contractor or other parties, and will, if nec a at nd h rings and testify to facts. Printed Name A Signa Dat 4 RCC099U 01/16 Page 2 of 2 LETTER TO TOWN OF FOUNTAIN HILLS 15809 EAST BRODIEA DRIVE 4/2/2018 r i STERNFELS & WHITE, P.L.L.C. f! Attorneys at Law April 2, 2018 SHAWN C.WHITE 11 rl ROBERT B. FREDERICK C.HORN"STERNFELS* Robert Rodgers, Director "I; Development Services Department il and •Inactive 1 Zoning Administrator **Of Counsel { Town of Fountain Hills 16705 E.Avenue of the Fountains Fountain Hills,AZ 85268 11 Re: 15809 Brodiea Drive ti. FORMAL REQUEST FOR DETERMINATION AS TO WHETHER k MR. ROBERT MANDEL'S PROPOSED CONSTRUCTION 1 COMPLIES WITH ZONING ORDINANCES I Dear Mr. Rodgers: c, 1 Pursuant to our conversation this date, the following constitutes our formal i request for determination that Mr. Mandel's proposed construction of a 1/ detached garage complies with zoning ordinances. In the alternative, it is requested that Mr. Mandel be permitted to apply for a further variance from the definition of"Yard" as set forth in FHZO Section 1.12. Thank you for the opportunity for Dave Montgomery (Montgomery Engineering and Management, LLC) and myself to meet with you, Randy FOUNTAIN HILLS OFFICE Harrel, and the other members of the development services team on March 5, 2018. Again, the undersigned represents Mr. Robert Mandel who is one of the Stemfels&White,P.L.L.C. '1 16803 16803 E.Palisades Boulevard I owners of the subject premises. Fountain Hills,Arizona 85268 il Telephone 480.816.9985 The Town of Fountain Hills Zoning Ordinance, Chapter 1, Secs. 1.08 (3) and Facsimile 480.816.5342 (4) provided the context for this meeting. Therein it is provided that the EMAIL: Zoning Administrator shall: 1.08(3) "Undertake preliminary negotiation with, and provide advice to, all Shawn C.White,Esq. SWhite@stemfelslaw.com applicants for zoning adjustment action, use permits, plan review or other action of the Zoning Administrator, the Planning and Zoning Commission, or Frederick C.Horn,Esq. FHomestemfelslaw.com the Board of Adjustment."and, '`ii. Page 1 of 7 1.08(4). "Subject to general and specific policy laid down by the Planning and Zoning Commission and Town Council, interpret the zoning ordinance to members of the public, departments, and other branches of government." At the meeting, the following was discussed: 1. Robert and Barbara Mandel were bona fide purchasers for value of the above referenced single family residence by Warranty Deed recorded November 30, 2015. The house sits on the corner of Echo Hill Drive and Brodiea Drive. By all appearances the residence fronts on Brodiea Drive. The postal box, front door, and driveway and garage access are all located on Brodiea Drive. All assessor, taxing authority and other governmental information refer to this site as 15809 Brodiea Drive. The letter from the Town was addressed to 15809 Brodiea Drive. There is no address or access for this home on Echo Hill Drive. 2. In 2017, Mr. and Mrs. Mandel decided to add garage space. They hired an individual named Marcus Hill who represented that he was a duly licensed contractor. Mr. and Mrs. Mandel paid a total of$24,337.50 to Mr. Hill for the purpose of constructing a free standing garage in their side yard. Payments made to Mr. Hill included sums for the express purpose of securing an appropriate building permit from the Town of Fountain Hills. Mr. and Mrs. Mandel did not know that Mr. Hill was a fraud. He was not a licensed contractor. He had never applied for a permit with the town. He pocketed the money that was supposed to be for a permit. Mr. Mandel is now assisting the Arizona Registrar of Contractors in the prosecution of this individual. 3. During the course of what Mr. Mandel thought was permitted construction, he received the initial letter from Peter Johnson that indicated that from the town's point of view, the left side of the premises was considered the rear of the premises. 4. Since that time, Mr. Mandel has undertaken to meet any and all responsibilities owed to the town, including assisting in the prosecution of the person who defrauded him. 5. Mr. Montgomery presented a project map entitled "As-Built Accessory Garage, Mandel Residence, 15809 E Brodeia Drive." ("the Map") The Map disclosed, among other things, that the boundary fences were all constructed consistent with the front of the premises being on Brodeia Drive. 6. The Map further disclosed that a small, triangular portion of the structure projected into P.U.E & D.E. Abandonment of the P.U.E was discussed as being feasible. Mr. Montgomery is now engaged in the process of Page 2 of 7 obtaining letters of abandonment from the respective stakeholder utilities. Note: The Map has now been revised and submitted to show the total of 2.0 sq. ft. projection. 7. Other documents were obtained at the meeting. These disclosed that the original builder of the home, Myers Custom Homes, Inc. at the time of the home's construction in 1989, sought and received approval for wall fencing height and location that was consistent with the wall being located on a side of the structure. The location of the side walls was to be on Echo Hill Drive. The Echo Hill Drive side was the shorter of the two lot lines. Notably, this was accomplished as variances for location of the same within "the required front yard" and the "required rear yard," respectively. More specifically, the Board of Adjustment on 8/9/1989 (Case B089-107) stated that the variances be "GRANTED by reason of any peculiar situation, surroundings or conditions of the specific property, or by reason of a specific property, or by reason of particular narrowness, shallowness or shape of a specific lot of record, or by reason of unusual topographical conditions, the strict application of any regulation of the Ordinance would result in practical difficulties or unnecessary hardship upon the owner of such property." The house was then built fronting on Brodiea Drive with all appurtenances constructed consistent with the front of the house being located on Brodeia Drive. The side of the yard on Echo Hill Drive was walled off. THE ISSUE The Town's primary concern has been stated as follows: "The detached structure is located in a rear yard (emphasis added) having a minimum required setback from the property line of 25' feet to any building or structure. Town of Fountain Hills Zoning for your parcel is R 1-10. No structures are permitted within the setback. No permit approval will be given as the structure's location violates Zoning Ordinance Chapter 10, Section 10.09." Section 10.09 states: "Density,Area, Building and Yard Regulations. The chart that follows specifies the minimum lot sizes, minimum lot width, maximum building heights, minimum yard setbacks, lot coverage percentages, and distance between buildings." Immediately thereafter is a chart that sets forth the appropriate setbacks in accordance with the lot designation. The subject lot is listed as category R 1-10. The Minimum Yard Setbacks are listed as for Front, Side, Street Side, and Rear without ,.. designation as to which side is which. As per separate FHZO Section 1.12 Page 3 of 7 L Definitions - Yard, for a corner lot, the front yard is designated to be "the narrower of the two street side frontages." Notably, there is no planning rationale for this seemingly arbitrary designation, or any reason as to why the narrower of the of the two sides should be the front and not the side. Here, if the left side of 15809 E. Brodiea Drive is designated to to be the side yard (and not the rear yard), then the structure will be within the required setback for a side yard. POINT 1 - The Front Of The Subject Property Has Been Acknowledged By All Governmental Entities To Be On Brodiea Drive Since Its Inception. The County Board of Adjustment Waived The Designation of The Shorter Lot Line As the Front Line Line In 1989. Based upon the referenced documents obtained at the meeting, as well as the patent appearance of the property, this home fronts on Brodeia Drive, notwithstanding that this is the longer lot line. That frontage has been recognized as such since the construction of the residence. In 1989, Maricopa County, de facto, recognized the front of the property as being on Brodeia Drive - the longer of the two lot lines - notwithstanding any planning or zoning provision to the contrary. In the granting of variances as requested, the county specifically permitted the direction of the home and all structures with tacit recognition of Brodeia Drive as the front of this home. A side yard wall was specifically permitted where the plot plan and code said the front yard should have been. However, the County Board cited the unique shape and contour of this parcel and permitted construction of a side wall to be located where the front of the house was supposed have otherwise been. Echo Hill Drive became the side yard. Brodiea Drive became the front yard. In 1989, the County Board of Adjustment could have then sought to enforce the concept that the front of the lot was on Echo Hill Drive. Nothing had yet been built. The Board could have stood its ground and demanded that the house front on Echo Hill Drive. However, the Board saw no reason to do so. The Board chose not to. Based upon those prior actions of the predecessor Maricopa County Board of Adjustment, it is respectfully submitted that the Zoning Administrator may now interpret Zoning Ordinance Chapter 10, Section 10.09 in its unique application to this particular property to have been waived in 1989, and to permit the same interpretation of this front yard .. to be the longer of the two street frontages. Page 4 of 7 POINT 2 - The Topography Of The Subject Lot Dictated The Direction Of The Home in 1989, and Does So Today. In The Alternative, There Should Be A Further Variance Granted From The Application of FHZO Section 1.12 "Yard." Physical grade restrictions appear to have been the reason that the front of the house, and all methods of ingress and egress to and from the home, were placed on Brodiea Drive, and not Echo Hill Drive. In 1989, there was a site visit resulting in one of the members of the Board declaring that the proposed wall, and hence the granting of the variance, was a "necessity." See, Extract of Board of Adjustment Minutes of 8-9, 1989, BA 89-107, Case Location: 15809 E. Brodiea Drive, submitted herewith. As noted above, a side wall was permitted to be built on what otherwise would have been the "Front side" of the corner lot. Therein, the Board Granted the application "by reason of any peculiar situation, surroundings or conditions of the specific property, or by reason of particular narrowness, shallowness or shape of a specific lot of record, or by reason of unusual topographical conditions, the strict application `w of any regulation of the Ordinance would result in practical difficulties or unnecessary hardship on the owner of such property." The same "particular narrowness, shallowness or shape" and "conditions of the specific property"that existed in 1989 still exist today. Now, as then, "the strict application of any regulation of the Ordinance would result in practical difficulties or unnecessary hardship upon the owner of such property." This same condition of the parcel was not deemed to be a self-imposed hardship to Myers Custom Homes in 1989. It should not be deemed a self imposed hardship on Mr. Mandel today. Therefore, in the alternative, in the event that it is determined that Mr. Mandel would require a variance, then it is submitted that his application for such should be favorably considered as a variance from the Definition of"Yard" as set forth in FHZO Section 1.12 for the reasons above stated. POINT 3 - The Location Of The Detached Garage Structure As Partially Built And As Proposed To Be Completed Is Consistent With All Other Existing Codes. As shown on said map, with Brodiea Drive as the frontage, the proposed garage will be located in accordance with all town codes. As per Mr. Page 5 of 7 Montgomery, of Montgomery Engineering and Management, LLC, the building is structurally sound and can be finished consistent with all Town codes. Measurements as set forth on the Map indicate the following: The garage addition is 8.4' to the northeast property line. For R1-l0 zoning, the setback is 25' at a rear yard and 7' at a side yard.Also, the addition is 23' from Brodiea where 20' is currently required for a side street or front setback. The building height is under 15' high from current grade. Based upon inspection and photos from the owner, the floor does not appear to be elevated by fill. Therefore, assuming the proper application and fees being submitted to the Town, it would appear that this garage structure is within code. Applications for abandonment of the P.U.E & D.E. have been made. All but one letters of abandonment have been received as of this date. It is proposed that any approval for the construction as requested be made specifically conditioned upon abandonment by all interested parties. CONCLUSION and FORMAL REQUEST FOR DETERMINATION THAT THE PROPOSED CONSTRUCTION COMPLIES WITH ZONING ORDINANCES The failure to apply for a building permit was not intentional. It was the action of a fraud pretending to be a licensed and responsible contractor. FHZO Sec. 1.12 states: "Lot Line, Front: In the case of an interior lot, a line separating the lot from the street right-of-way. In the case of a corner lot, the narrower of the two lot lines adjoining a street right-of-way." This is virtually the same as was provided in Maricopa County Zoning at the time of the home's construction. The setbacks and heights of all walls, front, rear and side, were constructed in 1989 consistent with the "Front" line being the longer of the two lot lines — to wit: Brodiea Drive. The County Board of Adjustment waived strict adherence to that provision of the code at that time. The town's interest in now enforcing the previously waived arbitrary definition of FHZO Sec. 1.12 "Lot Line, Front" is de minimis. There's no serious injury to the town in permitting the completion of the structure. However, the injury to the homeowner would be severe as it would require the demolition of an existing structure that has otherwise been built in accordance with all town building codes. The town would gain a Pyrrhic victory. However, as to Mr. Mandel, the construction would be required to be torn down. Mr. Mandel would suffer the loss of over $24,000 plus the cost of ‘tt,,,,. demolition. He would lose the ability to provide for a needed accessory Page 6 of 7 Lay structure. Indeed, virtually all other development of the parcel would be eliminated. It is respectfully submitted that, in this case, interpretation of the FHZO Sec. 1.12 "Lot Line, Front" should be based upon the 1989 waiver by the Maricopa County Board of Adjustment and the physical facts and permitted history of the subject property, all of which demonstrates that the fronts of all subject structures on this lot are located on Brodiea Drive; and, have been deemed so since the construction of the property in 1989. Therefore, it is Formally Requested That Zoning Ordinance Sec. 1.12 Be Interpreted To Mean That Mr. Mandel's Proposed Construction Complies With Town of Fountain Hills Zoning Law. In the alternative, it is formally requested that Mr. and Mrs. Mandel be permitted to apply for a recommended variance from the Definition of"Yard" as found in FHZO Section 1.12 - that would acknowledge the obvious - that 15809 Brodiea Drive is actually on Brodiea Drive. We reserve any and all rights to further this application and any appeal process, including but not limited to providing such other or further information to the Town as may be required. Very truly yours, aticiestofizepg Christopher J. Enos Of counsel cje/gh emailed to: Robert Rodgers, Director Development Services Department and Zoning Administrator Town of Fountain Hills rrodgers@fh.az.gov Randy Harrel, PE, SE, RLS, CFM rharrel@fh.az.gov kitirr Page 7 of 7 } } fBH OPINION APPEALED FROM OPINION OF ZONING ADMINISTRATOR LETTER FROM TOWN OF FOUNTAIN HILLS 15809 EAST BRODIEA DRIVE 4/3 0/2 018 9 .ty,N AIN 4 4 f.1) z 5TOWN OF FOUNTAIN HILLS • �' '4 Development Services Department that is my April 30,2018 Mr.Christopher J.Enos Sternfels&White,PLLC 16803 East Palisades Blvd. Fountain Hills,AZ 85268 Re: 15809 East Brodiea Drive Mandel Residence Zoning Ordinance Interpretation Dear Mr.Enos: This letter is written in response to your correspondence dated April 2, 2018, regarding issues surrounding the proposed construction of a detached garage at the referenced residence. As you are aware,those issues include that(i) no building permit has been issued nor applied for from the Town of Fountain Hills ("Town") for the proposed construction; (ii) the garage structure encroaches on certain recorded easements, abandonment of which has purportedly been sought but has not yet been confirmed; and (iii)the placement of the proposed garage within the lot raises issues regarding compliance and minimum setback requirements of the Town Zoning Ordinance. The sole purpose of this letter is to address the setback issues which are raised under the Town Zoning Ordinance as a result of the specific proposed placement of the garage within the lot. This response will not address the lack of a required building permit nor the easement encroachment issues,which must be separately resolved by the owners of the property if they wish to proceed with the proposed garage. The Fountain Hills Zoning Ordinance Section 2.07.A permits an aggrieved party to request the Town's Zoning Administrator to issue an interpretation of provisions of the Zoning Ordinance and/or their application in specific circumstances. That interpretation may then be appealed to the Town's Board of Adjustment. While your recent correspondence did not specifically request such an interpretation, that appears to have been its general intent; so we will treat it as such a request, to which we provide the following response. As explained in prior correspondence and meetings, the Town Zoning Ordinance specifies minimum setback distances from lot lines to structures (such as the proposed garage) to be placed within a lot. Specifically with respect to a lot(such as the subject lot)within an R1-10 Single-Family Page 1 of 2 15809 East Brodiea Drive Zoning Ordinance Interpretation April 30,2018 Residential Zoning District,the minimum setbacks required are 25 feet from the "rear" lot line and 7 feet from the"side"lot line. Town Zoning Ordinance,Ch 10,Section 10.09. As you are presumably aware, based on information provided to the Town, the garage proposed and partially constructed on the subject lot is approximately 8.5 feet from the northeast lot line of the property, and approximately 23 feet from the west lot line. Accordingly,whether the minimum setback requirements of the Town Zoning Ordinance are satisfied depends upon whether the northeast property line is a"side"lot line or the"rear"lot line of the lot. For purposes of the Town Zoning Ordinance, a property's "rear" lot line is defined as that which is "opposite and most distant from the front lot line." Zoning Ordinance Section 1.12 "Definitions." The "front lot line" is defined differently depending on whether the lot is an interior lot or a corner lot:"In the case of a corner lot, [the front lot line is] the narrower of the two lot lines adjoining a street right-of-way." Based on the information provided,including the"As Built"drawing dated January 26, 2018 and provided by the lot's owner,the subject lot is a corner lot adjoining the street rights of way for Echo Hill Drive and E. Brodiea Drive. The lot line adjoining Echo Hill Drive is clearly the"narrower" of the two, making that lot line the "front" of the lot by definition under the Ordinance. As a result, under the setback provisions and term definitions of the Zoning Ordinance, the property's northeast lot line is its "rear" lot line, and the placement of the garage only 8.5 feet from that line would constitute a substantial setback violation. The information provided also tells us that,when originally approved and constructed prior to the 1989 incorporation of Fountain Hills, the residence on the lot was subject to the Maricopa County Zoning Ordinance. The County Zoning Ordinance, Section 201, provides similar definitions Lor of the "front," "rear,"and"side"lot lines under which,by definition,the lot line adjacent to Echo Hill Drive would have been the "front" lot line, and the northeast lot line, the closet to the proposed garage,would have been the"rear"lot line. Accordingly, it is the interpretation of the Fountain Hills Zoning Administrator that the location of the proposed garage is not in conformity with the setback requirements of the Zoning Ordinance. The correctness of this interpretation may be appealed to the Town's Board of Adjustment pursuant to the provisions of Section 2.07(A) of the Zoning Ordinance. Alternatively, the owners of the lot may appeal to the Board of Adjustment for a variance from the terms of the Zoning Ordinance in order to permit the construction of the garage in the proposed location despite non-conformity with the Zoning Ordinance. Either procedure will require the submission of the appropriate form (available from the Development Services Department) and payment of the applicable fee. Robe gers Development Services Director&Zoning Administrator Town of Fountain Hills CC: Mitesh Patel,Town Attorney L Page 2 of 2 si APPLICATION AND LETTERS OF ABANDONMENT OF PUE'S 15809 EAST BRODIEA DRIVE 2018 FEE, $350.00 RESOLUTION#: 201 - FEE PAID: BOOK: PAGE: To be filled in by Engineering Division. DATE SUBMITTED: �OJ�TAINtitCP TOWN OF FOUNTAIN HILLS EASEMENT ABANDONMENT APPLICATION Property Owner Name: V(h - -\-OCK\ VQ ` \cx'&j • Address: I ‘601 G. Riod( Dc vu tkU ttn `{Il`\ Q�1K0) 1 - 2—� *V52L� Phone: nn Address of Subject Property: 15p1 E. EXCA\Q X, DIP . fO XI{ N11S,i\% `KS21,.Q g Legal Description: PLAT UC, BLOCK LOT I Building/Encroachment Permit#!if ‘able)- APN # I'`( ti - Signature: ? Please provide the followingV 1. Letter from each of the six (6) utility companies indicating no objection to the abandonment. Be sure the utility companies understand that you are requesting an EASEMENT ABANDONMENT. Reverse side of this document contains the name and addresses of these utilities companies. A. Chaparral City Water Company B. Cox Communications C. Fountain Hills Sanitary District D. CenturyLink E. Salt River Project F. Southwest Gas 2. A sample copy of your letter sent to the utility companies requesting the easement abandonment including a map highlighting the easement proposed for abandonment. 3. Names and addresses of all adjacent property owners and of properties possibly affected by the proposed abandonment. 4. Building Permit or Encroachment Permit number(if a building permit for the building, pool or fence, etc has been applied for or construction is in progress but not yet completed). When the above items have been submitted, the Town Engineer will review the abandonment of the easement relative to drainage and any other Town interests. The necessary legal documents will be drafted and the application for easement abandonment will be placed on the next available Town Council agenda (approximately 6-8 weeks from submittal). If necessary, a building permit can be issued upon approval of the abandonment by the Town Council. Recordation of legal documents will be executed by the Town. e:\engineering-randy harrel\easement abandonments\easement abandonment application rev 2015-1.docx ie Tea CenturyLink. CenturyLink 5025 N. Black Canyon Hwy Phoenix,AZ 85015 April 5, 2018 Montgomery Engineering&Management LLC 16716 E. Parkview Avenue, Ste.204 Fountain Hills,AZ 85268 SUBJECT: Robert and Barbara Mandel, 15809 E. Brodiea Dr. Fountain Hills,AZ 85268 Re: Request for Abandonment of the Public Utility Easement as recorded at Book 166,Pg. 33,Final Plat 602C Block 2 Lot 1 more commonly known as 15809 E.Brodiea Dr., Fountain Hills,AZ 85268,APN No. 176-16-545. Request includes a 10'Public Utility Easement on the Northeast property boundary line and the 10' Public Utility Easement on the East property boundary line as noted in Case No.EA201,Town of Fountain Hills Easement Abandonment plat attachment. Qwest Corporation d/b/a CenturyLink QC has reviewed the request for the release of the public utility easement as described and noted on the applicant's application and has determined that it will release the easement and right of ways as noted above. CenturyLink has no facilities in either of these locations. It is the intent and understanding of CenturyLink that this release of easement shall not reduce our rights to any other existing easement or rights we have on this site or in the area. If CenturyLink facilities are found within the vacated area as described,the Applicant will relocate the facilities at Applicant's expense and within guidelines set by CenturyLink and all regulating entities. All relocations will be done under the supervision of a CenturyLink Inspector. If you have any questions,please contact Lisa Gallegos-Thompson, CP at 406-443-0583. Respectfully, t'C area.Cetatte- Karen Caime Network Real Estate Karen.Caime@centurylink.com P798160/N.347025 ' 4�TAIN9f 'c FOUNTAIN HILLS SANITARY DISTRICT 16941 E. PEPPERWOOD CIRCLE FOUNTAIN HILLS, AZ 85268-2901 � `� TELEPHONE: 480-837-9444 FAX: 480-837-0819 1*Y DASD www.az-fhsd.gov March 6,2018 Mr. and Mrs. Robert and Brenda Mandel 15809 N. Brodiea Drive Fountain Hills,Arizona 85268 Re: Abandonment of Easement Plat 602C,Block 2,Lot 1 15809 H. Brodiea Drive Fountain Hills,AZ Dear Mr. and Mrs. Mandel: I have reviewed your request to abandon the easements at the northeast and southeast sides of the above-referenced property. The Sanitary District has no facilities nor does it intend to construct any within these easements. The District has no objection to the abandonment. After you have gone through the Town's formal abandonment process,please provide this office with a copy of the recorded documents. Sincerely, Christopher D. Kiriluk, Assistant District Engineer /cdk FOUNTAIN HILLS SANITARY DISTRICT EASEMENT ABANDONMENT PERMIT APPLICATION L Assessor's Parcel#:n1 L - , -non FHSD Account#:®- 31111 a 9 Property Legal Description: Plat 602C, Block 2, Lot 1 Property Address: 15809 E. Brodiea Drive Fountain Hills, AZ 85268 Applicant: Robert and Brenda Mandel Home Phone#: c/o: Montgomery Engineering and Management Work Phone#: 480-837-1845 Cell#: Fax#: Mailing Address: 16716 E. Parkview Avenue, Suite 204 (If different from above) Fountain Hills, AZ 85268 Purpose of Abandonment: L A site plan is required indicating the location of anything being built,including walls, pools,etc. Applicant's Signature: Application Date: For District Use Only: Site Visit Made? Yes T o Permit Fee Due: $25.00 Method of Payment: Other Fees Due: $ Date of Payment: Total Fees Due: $ a 6 , Employees on Site Visit: Reviewer's Notes: L Revised 2/2/2004 * SOUTHWEST GAS CORPORATION March 15, 2018 Cassie Montgomery Montgomery Engineering & Management LLC 16716 E Parkview Ave, Suite 204 Fountain Hills, AZ 85268 SUBJECT: Public Utility Easement Abandonment REQ 7962— 15809 E Brodiea Drive Dear Ms. Montgomery, After reviewing the plans for the above-referenced project, it has been determined that there are no apparent conflicts between the Southwest Gas system and your proposed abandonment of the public utility easement. Southwest Gas would like to recommend abandonment of the public utility easement located at the above- referenced location. Thank you for your cooperation on this project. Please contact me if you have any questions or require additional information. Sincerely, Susan Mulanax Analyst I, Right-of-Way/Engineering Services 702-364-3669 1600 E. Northern Avenue / Phoenix, Arizona 85020-3982 P.O. Box 52075 / Phoenix,Arizona 85072-2075 / (877) 860-6020 www.swgas.com C0771 March 9, 2018 Cassie Montgomery MONTGOMERY ENGINEEERING & MANAGEMENT LLC 16716 E. Parkview Ave. Suite 204 Fountain Hills, AZ 85268 RE: Amended Abandonment Request for 15809 E. Brodiea Dr. Ms. Montgomery, I have reviewed the amended abandonment request for 15809 E. Brodiea Dr. Fountain Hills, AZ. Based upon the supplied drawings/exhibits that you've submitted, it has been determined that COX has no facilities within the PUE and therefore we approve your request to abandon. Please note that although Cox Communications approves this abandonment we do so with the understanding that we will not assume any construction, relocation and/or repairs costs associated or in result of this abandonment. If I can be of further assistance, please contact me using the contact information below. Kenny Hensman Nenmi Jt erus matt COX Communications Permitting Group Right of Way Agent II kenny.hensman@cox.com E• '`rOR 12021 N Panorama Drive Fountain Hills, AZ 85268 USA epcor.com March 30, 2018 Mr. and Mrs. Mandel 15809 E. Brodiea Dr Fountain Hills, AZ 85268 RE: PUE Abandonment Lot 1 (10'PUE), APN 176-16-545 Mr. and Ms. Mandel, Chaparral City Water Company (CCWC) has reviewed your request of the abandonment of the existing 10' PUE along the back lot line and the 10' PUE along the side lot line after 9' from ROW, of said Lot 1, Block 2 of Fountain Hills Arizona Final Plat No. 602-C in Book 166, Page 33, MCR. The 9' PUE from ROW to wall must be maintained to allow for existing water service line and meter box currently in place outside the wall. CCWC has no objection to the abandonment request of the PUE as stated above. Please feel free to contact me at 623-780-3777 or by email at kdotray(a�epcor.com if you have further questions. Regards, Kimberly Dotray Real Property Manager cc:GIS Mg Pftialat P.O.Box 52025 Phoenix,AZ 85072-2025 (602)236-5900 www.srpnet.com April 4, 2018 Ms. Cassie Montgomery Montgomery Engineering & Management LLC 16716 E. Parkview Ave. Suite 204 Fountain Hills, Arizona 85268 RE: PUE Abandonment 15809 E Brodiea Dr. bear Ms. Montgomery: Salt River Project has no objection to the abandonment of the Public Utility Easement as shown in your site plan received April 4, 2018. All facilities are fed from the front of the property. If you have any questions please feel free to contact me on 602-236-3126. Sincerely, .Vet,2ekvetei Sherry Wagner Land Consultant PAB348 MONTGOMERY ENGINEERING EXISTING AND REMEDIATION PLANS 15809 EAST BRODIEA DRIVE 2018 , c • _„— c_-' K y ko" N y u 6 atl N����,,,,�tJy aF Q�q �[+� 4 L��9�pt,...f., N Syt TIrNN\ JI tlilell /) ) ✓ a 4. a ao 1 // j*, rl If ii.4 r 0., �g O 3 1p JS., \ ` '� yQ b. 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'�— - € . 4r.DRN „�n,Q 16005__..,._ PLAT 602C, BLOCK 2, LOT I 76716 E. HILLS, AVE. S'JIIE 2D4 + m.c AS NOTED � FOUNTAIN HILLS, ARIZONA 85268 v 4g (480)8.77-1845 ,an(480)837-6668 \ AERIAL ENHBIT 15609 E. BRODIEA DRIVE .��M a-melt: DoveO:.ivHAZ.com ero. DM onetnrnov gpfg (lov ftHl 11 a� a b \e A tr''bF"/MMi ENa 00 111E 1 iIiiiiIii " 111111i_. , I! 111 L.1 s 1IIIiOII Ii 'TING :r♦-..C.M ■ @ r. 9 Akii t gi Fgit Ev11 4a Wil ~r� r"M il !L_J Afi '_ll Z ril z S" Z rn0DO I- G8 O Mil €1 Y Om ° J °; - - p3o 10 Ad > C7Dzirn ., i : o � qgR � C7 � �:� mmD � 1 a O O 1 mz Z , KSM d. 26-2015 MANDEL RESIDENCE x. MONTGOMERY _( C Coro - -- ENGINEERING i MANAGEMENT,LI.C. .,.L 1 u�au"D r 18D05 7 'glut,E. PARKVIEV'AVE SUITE 2U4 ('LAT 602C, BLOCK 2, LOT 1TAIN HILLS, AR120NA 852E8 )))` Y.yD 1/4'-1'-0" t "(;$` (480)837-1845 fo (480)837-8E68 \` EXISTING&REMEDIATION PLAN 15809 E. 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That would ance would not be material- The F of Adjustment has turned make the location of the ly detrimental to neighbors publican down an,application by a garage in compliance with living or working within several c local couple to appeal an the setback requirements if the neighborhood or adja- the GO] interpretation by town it were defined as the side cent property. office in staff of zoning regulations yard rather than rear yard. In order for the board to mary el( defining front and side yard The board voted 4-0 to ac- grant a variance all four Among t lot frontage. cept the staff interpretation criteria should be met. In Ken Ben The staff decision relates of the ordinance definitions. this case the board found Senator to a corner lot at Echo Hill The board then took that none of the standards State w and Brodiea drives.For a cor- up the issue of granting could be applied, also with Governo ner lot the Zoning Ordinance a variance for the garage a 4-0 vote. the Repu defines the front property encroachment into the rear The resident explained for govex line as the narrowest street yard setback. how he happened to hire an Bennc frontage. The longer street There are four criteria de- unlicensed contractor, and ters and side frontage is considered fined in the ordinance that both he and his attorney nans ha, the side yard for purposes of must be met for the board to recognized this situation the Due( zoning regulation. consider variance approval. has no bearing on the vari- over the . The case came about Those include exist- ance request. "We d when the town's chief ing special circumstances The couple may appeal anted bu building inspector, Peter related to the site that the decision to the court of ing told," Johnson, noticed an ac- require a variance that do appeals.The town's remedy the last f I cessory building (garage) not apply to surrounding is to have the building re- debt has! under construction on the properties. moved. "That property that had no build- Those special circum- "Obviously,Mr.and Mrs. budget." • ing permit. stances must be preexist- Mandel are disappointed He sai Additional research ing and not created or in the outcome of their ap- have ini found that the building self-imposed by the prop- plications to have the front million.I was encroaching within the erty owner. of their home recognized are being rear-yard setback.The town A variance is necessary as such by the town,"Enos educatioi ordered construction to stop. to preserve substantial told The Times. "At this "The s At about the same time property rights. Without time they are exploring all raises to the contractor building the the variance the property available lawful options." districts garage disappeared. He termine was not licensed. Bennett Attorney Christopher Liberal Ladies to meet getting I Enos asked the board to ised to ec find that Zoning Adminis- tratorLiberal Ladies will meet to a candidates' forum. Benn Bob Rogers' inter Wednesday,Aug. 1. The meeting is from 3 to promised pretation of the ordinance All candidates running 5 p.m. at the Community and reply definitions of the front and for Fountain Hills Town Center. He said i Council and the mayoral RSVP to libladies@ ported tI seat have been invited gmail. McCain' Station (cont.from page 1 A) A TALE OF TWO M center where Fry's grocery store is located will be relo- When asked how each would deal with a catedtoahomebaseatthe Cecil Yates and Ginny Dickey g new station. There will also be space dedicated to the Maricopa GIN N Y .DICKEY County Sheriff's Office in Tr1,,IT =T '74. WOULD ... the new building. ' `-4,-*V The facility is designed ,g _ w at 9,600 square feet with �. ./Increase your property taxe three truck bays and per- -fy t sonal space for six firefight- m/DOUBLE the environmental ers. ems'' Fire Station #2 opened ,,: fee on all homes.' ` t►iu,,yf} TOWN OF FOUNTAIN HILLS Development Services Department S i ik PUBLIC NOTICE NOTICE IS HEREBY GIVEN that on Thursday, July 19, 2018 at 6:00 P.M. in the Town Council Chambers located at 16705 E.Avenue of the Fountains, Fountain Hills, Arizona, The Fountain Hills Board of Adjustment will hold a PUBLIC HEARING to receive comments on a requested APPEAL of the ZONING ADMINISTRATOR'S INTERPRETATION of Zoning Ordinance, Section 1 .12 Definitions — FRONT YARD and/or a VARIANCE from Section 1.12 Definitions — FRONT YARD as it relates to the property located at 15809 E. Brodiea Drive (APN 176-16-545). Case #AP 2018-01 A complete copy of the appeal is available for viewing in the Fountain Hills Planning & Zoning Office, 7:00 AM - 6:00 PM Monday through Thursday. For more information, contact Robert Rodgers, Development Services Director, Town of Fountain Hills, 16705 E. Avenue of the Fountain, Fountain Hills, AZ 85268; or by calling 480-816-5122. All interested citizens are encouraged to attend. Published in FH Times: July 4 and July 11, 2018 2co1x3" 3" $4 . 75/ci/week$57 . 00 + tax Paula Woodward From: Robert'Bob' Rodgers Sent: Wednesday, July 11, 2018 7:25 AM To: Carol Perica (BOA); Daniel J. Halloran (BOA); John Kovac III (BOA); Nick Sehman (BOA); Paul Ryan (BOA) Cc: Paula Woodward Subject: Hearing on July 19th Board members, There is a Board of Adjustment meeting scheduled for July 19th Starting at 5:30 PM. The hearing will be regarding an appeal of the Zoning Administrator's Interpretation or, a Variance from the interpretation if the Zoning Administrator's interpretation is upheld. The meeting packets are very thick because the applicant's attorney has asked that a lot of materials be included. They are too big to email and will be available for pick up at the Town Hall. Thanks. Bob Robert Rodgers , Development Services Director ,0%I% Town of Fountain Hills (480)816-5138 16705 E.Avenue of the Fountains, Fountain Hills,AZ 85268 �'" "'�.• w:www.fh.az.gov e: rrodgers@fh.az.gov 42,. Follow us on: nom .rr✓ 1 Paula Woodward From: Paul Ryan [paulgryanl @gmail.com] Sent: Wednesday, July 18, 2018 1:13 PM To: Robert'Bob' Rodgers Cc: Paula Woodward Subject: Re: Minor correction to the staff report Bob, Paula mentioned when I was in today, that the hearing tomorrow will not start until 6pm. If this is correct, and since the announcement with the package specifies 5:30pm, should there be a general notice of correction sent out on the time? Thanks, Paul On Jul 18, 2018, at 10:17 AM, Robert 'Bob' Rodgers <rrodgers(afh.az.gov> wrote: Board members; RE: Brodiea Drive staff report Members, in paragraph 2, on page 5 of 7 of the staff report, I incorrectly identified Brodiea Drive instead of Echo Hill •�r/ Drive as the front. As you can tell from the rest of the report, this is a typo. It should read (Echo Hill Drive). Maybe I'm just getting old. Sorry for any confusion it may have caused. I will be out of town on Thursday at a funeral. Marissa Moore will be capably presenting the Town's case. As this is a two-part hearing, and there may be a number of rabbit holes to be avoided, I have asked the Town Attorney to also be in attendance should you have any procedural questions. On another note, Board Member Dan Halloran has undergone a triple bypass and will not be attending this meeting. By all accounts he is doing well. We wish him a speedy recovery. Keep him in your thoughts. Thanks. Bob Robert Rodgers Development Services Director Town of Fountain Hills <image002.png> (480)816-5138 16705 E.Avenue of the Fountains, Fountain Hills,AZ 85268 w:www.fh.az.gov e:rrodgers@fh.az.gov Follow us on: 1