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HomeMy WebLinkAboutBA.2018.0719.Minutes TOWN OF FOUNTAIN HILLS MINUTES OF A MEETING OF THE BOARD OF ADJUSTMENT July 19,2018 A public meeting of the Fountain Hills Board of Adjustment was convened and called to order by Chairman Paul Ryan at 5:30 p.m. Tuesday, July 19, 2018, in the Town Hall Council Chambers located at 16705 E. Avenue of the Fountains, Fountain Hills, Arizona. AGENDA ITEM #1 CALL TO ORDER, PLEDGE TO THE FLAG, MOMENT OF SILENT REFLECTION,AND ROLL CALL. Present for the meeting were Chairman Paul Ryan, Vice-Chairman Carol Perica and Board Members John Kovac III, and Nick Sehman. Also present were Marissa Moore, Senior Planner, Town Attorneys Mitesh Patel and Scott Holcomb, and Paula Woodward Executive Assistant and recorder of the minutes. Boardmember Daniel Halloran was absent. Chairman Paul Ryan present Board Member John Kovac III present Vice-Chairman Carol Perica present Board Member Nick Sehman present AGENDA ITEM #2 CONSIDERATION OF THE BOARD OF ADJUSTMENT MEETING MINUTES FOR March 15,2018. Ci) Vice-Chairman Carol Perica made a MOTION to approve the meeting minutes from the March 15, 2018, Board of Adjustment meeting. Boardmember Sehman SECONDED and the MOTION passed 4-0,by those present. Chairman Ryan announced at 5:37 p.m. the Board will take a short recess and resume the meeting at 6:00 p.m. AGENDA ITEM #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) Chairman Ryan resumed the meeting and opened the public hearing at 6:00 p.m. Marissa Moore, Senior Planner, presented a staff report and PowerPoint presentation(copy on file in the Development Services Department.) Ms. Moore referenced page five of seven, paragraph two of the staff report, line four. She said there was a typo. The correction should be that Echo Hill Drive is the front of the property and Brodiea Drive is on the side of the property. She encouraged the Boardmembers to provide justifications for findings when reviewing each of the variance criteria. Ms. Moore provided an Aerial Site Plan showing the lot has frontage on both Brodiea Drive and Echo Hill Drive. By the zoning definition, on a corner lot, the front lot line is the narrower of the two lot lines adjoining a street right of way. Although corner lots can have frontage on more than one street, it is the shorter of the two which determines the front of the property. Many homes on corner lots are situated to the rear or side property line to take advantage of views, ease of access, 1 of 10 etc. The facing of a house,the front door and garage do not determine the property line definitions in the zoning ordinance. An address does not determine what is the front of a property.What is Coe being questioned tonight is what is that definition and how the Zoning Administrator interpreted the code. The second part of the applicant's appeal is for a request for a variance. How this came about was a garage was built without a building permit. Had a request for a building permit been submitted to the Town for review, two issues would have come into light at that point in time. The setback from the front is twenty feet, the setback from the street side is twenty feet and the rear setback is twenty-five feet. The garage was constructed in the rear setback. The second issue was a utility easement which has been addressed. This permit would have been denied because it was in the rear yard setback. The applicant is asking for a variance if the appeal of the Zoning Administrator is not approved. Mr. Patel stated that if the Zoning Administrator's interpretation is upheld that the front of the lot line is as is defined in the code then it would move on to the variance appeal. Boardmember Sehman asked, if the front yard and side yard were reversed, would the garage and the existing structure meet the set back criteria? Ms.Moore said if they were reversed it would be possible for a structure to exist. Ms. Moore reviewed the variance criteria. She referenced the staff report which was prepared by Bob Rodgers, Development Services Director. She referred to the PowerPoint slide displaying the variance criteria. Ms. Moore read out loud variance criteria number one, "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." Ms. Moore said there are over one hundred corner lots in Fountain Hills and corner lots are not irregular. Chairman Ryan commented that the most narrow section is considered the front throughout the town. Ms.Moore confirmed that was correct. Chairman Ryan mentioned that the county rulings before the Town was incorporated are the same as the current ordinance. The property line definitions have been the same for a very long time. Ms. Moore replied that even if the ordinance was different before incorporation, the current ordinance would override anything previous. Ms. Moore read out loud variance criteria item number two, "The above special circumstances or conditions are preexisting and are not created or self-imposed by the owner or applicant." Ms. Moore said there are no special circumstances, nothing is preexisting. The applicant self-imposed the building of the garage structure. Ms. Moore read out loud variance criteria item number three, "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." What would be considered substantial property rights would be the use of the property as single-family residential dwelling,pool and normal structures. If there was something unusual about this lot that would not allow for substantial property rights then there would be a consideration to have met this criteria. Cor, Ms. Moore read out loud variance criteria item number four, "The authorizing of the variance will not be materially detrimental to persons residing or working in the vicinity, to adjacent property, 2 of 10 or to the neighborhood or the public welfare." This is a detriment to the neighbor because the neighbor has an expectation there are setbacks. Ms. Moore said that staff believes the applicant has not met any of the criteria and recommends denial of the variance. Chairman Ryan stated for clarification, if the Board agrees with the Zoning Administrator's interpretation, the variance is for allowing the garage construction that normally would not be allowed under the zoning ordinance.The board is not redefining in this variance what the front and side are defined; making a variance to an existing defmition to front side and rear. Ms. Moore said the variance is not to change any definition or interpretations. The variance is stated that there is something unusual that's precluding them from using the property that would not be a detriment to the neighbors that would allow for this structure. Vice Chairman Perica said that the Board's decision is to determine whether or not the structure is in the setback. In response to Boardmember Kovac, Chairman Ryan replied that the rear of the property is what is in question. The applicant is building a structure on the rear of the property in the rear yard setback. Ms.Moore stated the applicant's attorney is present and would like to address the Board. Mr. Chris Enos, Attorney representing Mr. And Mrs. Mandel, addressed the Board. Mr. Enos said he had a small issue with Ms. Moore's presentation. Mr. Enos referenced the zoning code with states the shorter side of the property is the front and the longer side of the property is the side.Mr. Enos said his client is asking for a variance that would allow the longer side of the property to become the front and the shorter side to become the side of the property. Mr. Enos said in researching he could not fmd any reason why the long side of a property could not be the front and the short side be the side of the property. He said he did not see that as an impediment for the Board to say in this case, given the circumstances, given what's going in this particular property and going back to 1989 thence forward to make the long the front and the short the side as they did in 1989. Mr. Enos referred to the Maricopa County Board of Adjustment variance (for property located at 15809 East Brodiea Drive) discussion on August 9, 1989. Mr. Enos said a variance was allowed for the same property. Chairman Ryan said he had some comments and questions regarding the 1989 variance Mr. Enos referenced. Chairman Ryan said the notes the Board were given about the 1989 ruling is about fences. The Maricopa County Board of Adjustment allowed variances for fences and left the definitions of lot lines alone. Mr. Ryan stated he did not see any communication in that decision that changed the definition of the front, side or rear. He asked Mr. Enos if that was a correct reading. Mr.Enos replied that,"Yes, it is." Mr.Ryan replied to Mr.Enos,"You just now said they interpreted the front as the long. I don't see that here in writing." Mr. Enos said yes it is fact by what they allowed. They allowed a wall to be put up as a side wall. That's a wall that can only be put up as a side wall.The builder went before the Board in 1989 and asked for a variance in order to build the side and rear wall. Mr. Enos said due to unique circumstances the builder was asking the Board in 1989 to waiver the zoning requirement for the front and rear yard as by reason of the same definition on the front yard found in the current 3 of 10 .,mot. Fountain Hills Zoning. He could have asked for the same variance the Mandel's are asking for but the builder did not. Due to unique circumstances the q board allowed the wall to be built on the CO) Echo Hill Drive side where it shouldn't have been and a wall at the rear near the pool and another wall to be built. The de facto is the front of the house faces Brodiea Drive. The Board could have said no but they didn't. They allowed it to be built. Mr. Enos said in his humble opinion to the Board, should the board so decide,the Board would be allowed to say the same thing. Mr. Enos asked, How does this apply to the Zoning Administrator? The Zoning Administrator is a professional and his opinion accounts for a lot but if you look at his opinion he never addressed the very same variances. If he accounted for those variances, I respectfully submit,that this board can say that his opinion should have allowed the ruling of the board in 1989. Vice Chairman Perica asked Mr.Enos,"Who are you referring to when you say `they'?" Mr.Enos replied,Maricopa County Board of Adjustment. Chairman Ryan said he hadn't seen any evidence that the Maricopa County Board of Adjustment made any ruling that changed the lot definitions of front,back and sides. Mr.Enos replied, "not in so many words." They ruled in favor of a variance. Mr. Enos asked the board to take into account the 1989 Maricopa County Board of Adjustment ruling to rule in favor of the Mandel's variance request. Vice Chairman Perica referenced the 1989 case and stated she did not see where lot definitions were the reason for the variance request. She referenced the 1989 meeting minutes that stated the variance request was granted for the fence height only. Boardmember Kovac referenced an additional case in the staff report that the Board of Adjustment recently had an identical case which a fence-wall height variance was granted to allow a six foot wall with the required front yard setback. There was never any thought that allowing a taller wall in front would re-define the definition of the front lot line as a side or rear lot line. Chairman Ryan said the focus should be not on the walls or fence but on the Zoning Administrator's interpretation. Chairman Ryan recapped that the Board in 1989 had an opportunity to change the orientation but did not after they allowed the change of the wall heights. Mr. Enos said he agreed except they were not asked to change it. With regards to what constitutes the address on Brodiea Drive, there is nothing factual that indicates this is anything other than Brodiea Drive. The only thing the Zoning Administrator could not get past is the long verses the shorter in the lot line. He believes this Board is entitled to find this to be the front on Brodiea Drive. Boardmember Kovac asked Ms. Moore to confirm that Mr. Enos stated that the Board has the right to change the front lot line. Ms. Moore replied that they are asking the Board to reconsider the Zoning Administrator's interpretation of a front lot line. Town Attorney Mitesh Patel addressed the Board and reminded them that according to the Towns Chapter 2 Procedures, Section 2.07 "Nothing herein contained shall be construed to empower the Board to change the terms of this ordinance, to 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." 4 of 10 • Vice Chairman Perica asked should we not vote on this first because the outcome would affect the second item vote. Chairman Ryan confirmed the public hearings are to be presented together and voted separately. g g Mr. Enos said that there is also a part of the"Town Code 2-8-4 A., It shall be the duty of the Board of Adjustment to hear appeals concerning the interpretation or administration of the Zoning Code made by the Zoning Administrator. The Board may reverse, affirm, wholly or partially or modify the order, requirement or decision of the zoning administrator appealed from, and make such order,requirement, decision or determination as necessary." Chairman Ryan said we will take that into consideration if it comes down to it. Dave Montgomery of Montgomery Engineering Fountain Hills, addressed the Board. Mr. Montgomery said the property was surveyed by his firm. The results of the surveyor showed: In the front, the garage is twenty-three feet back compared to the twenty foot requirement. The garage is twelve feet from the existing house which exceeds the six foot minimum requirement. There is no infringement on the east side of the property. At the north east line, which is the rear of the property, there is a twenty-five foot setback required and the actual is an 8.43 foot setback. This lot is a little unusual because in between this lot and the lot next door there is a 10 foot parcel owned by the Town. This was set aside for a drainage or utilities easement. The garage is ten foot actually further from the neighbor than the eight foot setback. Chairman Ryan asked if by adding the eight foot setback and the ten foot setback, it's actually eighteen feet? Boardmember Sehman commented that the ten additional feet are not the Mandel's or neighbor's property but belong to the Town. Mr. Montgomery said that with the existing house and addition of the garage the total lot coverage would not exceed the thirty percent lot coverage maximum allowed. This garage would have been allowed in 1989 under the County Ordinance. The 1989 County Ordinance allowed for accessory structures to be built in the rear setback. Since then the Town changed the ordinance that does not allow accessory structures in the set back. Mr. Montgomery displayed a photo taken by a drone fly over. He noted the garage addition, existing house and pool location. He said the whole house is oriented north, south, the pool area feels like the rear property line and the property line on Brodiea feels like the front. Mr. Montgomery said that Mr. Enos asked him to review the garage structure. Mr. Montgomery said he is a structural engineer and inspected the garage. He said there were minor changes he would suggest but other than that it was a sound structure. He concluded he was finished and available for questions. Chairman Ryan asked the Board how would they like to proceed with taking the public hearing in a row or separately. Attorney Patel reminded the Board if they wanted to hear each item separately that each public hearing requirement is that they are opened and closed individually. After each public hearing closed the vote would be taken. Public speakers would be taken during each public co, hearing. Chairman Ryan asked if there was anyone from the public who wanted to address the Board. 5 of 10 • Recorder Ms. Woodward said there were 10 speaker cards. Nine who did not wish to speak but indicated they are in favor of the application and one speaker who wished to address the Board. Anthony Loshiavo, a Fountain Hills resident, addressed the Board and said he was not in favor of the applicant. If the applicant is allowed to build the garage in violation of the ordinance, how would that prevent others from doing the same thing? The following nine individuals did not wish to address the Board but indicated they are for the applicant; Connie Bousselaire, Maggie Caligiuri, Linda Carroll, Nancy Hinkston, Richard Durran, Lisa Murray, Claire Lashly-Head, Joanne Bedard and a Fountain Hills homeowner. Chairman Ryan asked if any other individuals wanted to address the Board at this time. Jon Axelson, a Fountain Hills resident and neighbor of the applicant, addressed the Board with two questions. He asked if the short and long property line definition is still relevant today and shouldn't the property's address determine the front, side and rear of the lot? Connie Bousselaire, a Fountain Hills resident and neighbor of the applicant, said she originally did not want to speak but changed her mind. She said she is in favor of the applicant to build the garage and have the variance. She said the Mandel's did not do anything out of malice or ill intent. She said it is assumed when you hire a contractor they are going to do their job. Ms. Bousselaire said if a hundred people were asked where the front of the Mandel's house is, they would say Brodiea Drive. It is just common sense. Maggie Caligiuri, a Fountain Hills resident and neighbor of the applicant, said she originally did not want to speak but changed her mind. She said when the builder situated that house and pool at that time and the Board allowed the fence variance there was an implicit redefinition at that point even though they didn't write it down. Chairman Ryan and Ms. Caligiuri had a discussion and Attorney Mitetsh reminded the Board that procedures state that the Board shall not have dialogue or on-going discussion with the public during the meeting. Mr. Enos said in regards to that issue it's important to abide by the rules. Mr. Mandel would like to address the board. There are no lot line changes requested just that the front lot line is on Brodiea Drive. There are no safety issues because the driveway is located where it's suppose to be. Mr. Enos said that Mr. Mandel would like to explain how he got into this predicament. Chairman Ryan said that unless it has to do with the Zoning Administrator's interpretation it should wait till the next section's discussion regarding the variance. Chairman Ryan closed the public hearing at 7:02 p.m. AGENDA ITEM #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) 6 of 10 • Chairman Perica MOVED 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 (Yr Zoning Ordinance, Section 1.12 - Front Yard and Boardmember Sehman SECONDED and the MOTION passed 4-0,by those present. Boardmember Sehman Aye Boardmember Kovac Aye Vice-chairman Perica Aye Chairman Ryan Aye AGENDA ITEM #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 Chairman Ryan resumed the meeting and opened the public hearing at 7:04 p.m. Ms. Moore said earlier she reviewed the four criteria that all should be met in order to approve for a variance. She asked if the Board would like her to review them again. Chairman Ryan replied that was not necessary since the Board deals with the criteria all the time. He asked Ms. Moore to review any of the Town comments that if this structure violates any setback laws and if so,how much, including the public utility easement. Ms.Moore said the structure as Mr. Montgomery presented is a little more than eight feet from the CO rear property line, the setback is twenty-five feet. The public utility easement along the rear property has since been vacated so it is no longer an issue. However the structure is still in the setback. Ms. Moore explained in detail the setback requirements on the overhead displaying the property. The variance would be seventeen feet in order to allow for the structure to be eight feet from the rear property line. Mr. Enos said a seventeen foot variance is not what he is asking for. He said he asked for a variance from the other code provision. This Board is privileged and allowed to give the variance from the short verses long definition of what are the side and front yards. Mr. Enos said the Mandels are asking for a variance for the front to be the long side. Chairman Ryan stated that the variance is not about the length or the reinterpretation of the lot layout, side and including the setbacks. This variance is whether this structure can be built on the current lot definition. Mr. Enos replied yes,but this is from a different zoning code provision. Chairman Ryan said that issue was dealt with earlier. Mr. Enos said basically there are the same special circumstances that existed in 1989. Mr. Enos requested those be included in the Boards consideration now. The property owner did not create these special circumstances. The property owner did not create the topography. He did not create anything to cause the front to be where it is on Brodiea Drive so he can now only build a garage here if this variance is granted. Anybody else can put up a garage if they want to. It's not a special permitted use. It's a permitted use to have an accessory building. If he built the garage in 1989 he would not have needed to ask the Board's approval. Now, it's 7 of 10 required to ask the Board, to request the Board permit him, by reason of giving the variance of the short verse long definition in the zoning code. It would be demonstrable hardship due to the fact in the absence of relief, the home owner would be unable to build either this garage or anything else in this area on his property. There probably would be room for a three foot shed. That having been said, he is being denied the opportunity to do what others have with this much available property, and want to put a garage at the end of their driveway, where they are parking cars. He is asking to do the same thing. Mr. and Mrs. Mandel are asking for permission to build this garage with the prevailing architecture and within the town building code requirements. There is no setback problem if this Board gives us a variance from the definition of the front lot line as the Board determined to be. Mr. Montgomery testified there are no other variances required. Mr. Enos asked that all prior points made be considered by the Board. He called on Mr. Mandel so the Board can hear how he got to this point. Mr. Mandel addressed the Board. He said he has owned the house for two years and the address has always been on Brodiea Drive. He apologized that he never intended to be in the position to hide anything or do anything illegal. He came across a contractor whom he hired to build the garage. It turned out the name he gave,the permit that he never got and the plans that were never received were all a lie but he didn't know that at the time. Mr. Mandel said he just wants to finish the project and thanked the Board for their time and consideration. It was noted no one from the public requested to speak. Chairman Ryan closed the public hearing at 7:15 p.m. AGENDA ITEM #6 CONSIDERATION OF THE APPLICATION OF ROBERT AND BARBARA MANDEL FOR A REQUESTED VARIANCE FROM THE FOUNTAIN HILLS CI; ZONING ORDINANCE. SECTION 1.12 DEFINITIONS — FRONT LOT LINE AS IT RELATES TO THE PROPERTY LOCATED AT 15809 E. BRODIEA DRIVE. (CASE #Z2018-04) Vice Chairman Perica stated she appreciates Mr. Mandel's honesty and the neighbor's support of the Mandels. However,the Board of Adjustment has to judge on a criteria not, the heart. She read the four criteria the Board of Adjustment uses to make a ruling. Boardmember Sehman said that he would be interested in giving the homeowner's attorney another opportunity to address the four criteria and explain to the Board why he thinks they have been met. He expressed empathy for the Mandels and what they have gone through. The Board can only approve a variance if all four of the points have been met for this project. Chairman Ryan suggested that Mr. Enos review the list of the criteria and address each, one by one. Mr. Enos started off saying first on the list is the special circumstances regarding the size, shape and topography of this particular parcel. There are circumstances that make this application so the approval of it will alleviate a hardship that is not self made. Those circumstances were set forth and they exist by reason of seeing particular narrowness, shallowness, shape and unusual topographical conditions, being the grade differential, that allow this board to make the determination these special circumstances allows for the garage to be built in this location. Mr. Mandel did not create these circumstances. These are the same circumstances that existed in 1989. He did not change the topography. He did not change the lot line. Where they have been parking a car is where they want to build a garage. With regard to whether or not this is a special privilege that is not afforded to other residences, again, the special privilege was not created by him. If this board wants to determine the lot 8 of 10 line that is short should be the front then this would be considered under the same circumstances as a setback variance. The requirements here are consistent with all town codes as long as the requested variance that being for the front yard now being allowed to be the longer of the lot lines. Chairman Ryan said he wants Mr. Enos to address each item. Chairman Ryan replied that regarding number one, you are saying there are special circumstances based on Mr. Montgomery's testimony and based on things you presented. Number two item, the above special circumstances or conditions are preexisting and are not created or self-imposed by the owner or applicant Mr. Enos said in regarding item number two, the topography, narrowness, shallowness of the lot, shape and difficulties of building on this lot were not created by this owner. These are the same conditions that existed in 1989. He then referenced item number three, The variance is necessary for the preservation of substantial property rights. Ordinarily owners have a right to build an accessory garage. It`s a permitted use. If this is denied then Mr. Mandel unlike anybody else who has a house with a sufficient side yard on his driveway where they could build this garage, he could then not, unless the variance is granted. .Everyone else can build a garage as long as they meet the setbacks. If this is not granted. Mr. Mandel, will not be able to build any garage or use any part of that property. It is dead property to him where other people could use that property. That is a substantial property right. Mr. Enos referenced the fourth requirement and stated that the Board heard from the surrounding neighbors in favor of the project. The architecture would not change and would be identical to the primary residence. Other people have accessory garages. He stated he believed the four criteria have been met in order for the Board to grant the variance. 1111) Vice Chairman Perica said she was ready to make a motion but would like to hear from the other Boardmembers. Boardmember Kovac asked what is the setback requirement if a variance was granted. Vice Chairman Perica replied they have an eight foot setback. The requirement is a twenty- five foot setback. Boardmember Kovac stated that not all of the four criteria were met. Boardmember Sehman referenced the Board of Adjustment Procedures that reads, "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." He said listening to the applicant, the neighbors and Mr. Montgomery, he can see there is personal inconvenience and financial hardship, however the variance has to meet the four point criteria and he believes the four points have not been met. Vice Chairman Perica said regarding the required four criteria they are looked at as one. She agreed that all four criteria had not been met. Boardmember Kovac MOVED that the Board of Adjustment DENY the applicant's (1100 requested Variance and Vice Chairman Perica SECONDED and the MOTION passed 4-0, by those present. Boardmember Sehman Aye 9 of 10 Boardmember Kovac Aye Vice-chairman Perica Aye Chairman Ryan Aye AGENDA ITEM#7 ADJOURNMENT. Chairman Ryan adjourned the meeting at 7:30 p.m. FOU HILLS BOARD OF ADJUSTMENT B : ATTEST: 704Q 1i Chairman aul Ryan Paula Woodward, Executive Assistant CERTIFICATION I hereby certify that the foregoing minutes are a true and correct copy of the minutes of the meeting of the Fountain Hills Board of Adjustment held on the 19th day of July 2018. I further certify that the meeting was duly called and th uorum was prese Dated this 19th day of July 2018. 047 Paula Woodward, Executive Assistant 4klrr 10 of 10