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HomeMy WebLinkAboutBA.2015.0718.Minutes TOWN OF FOUNTAIN HILLS MINUTES OF A MEETING OF THE BOARD OF ADJUSTMENT August 18,2015 A public meeting of the Fountain Hills Board of Adjustment was convened and called to order by Chairman Paul Ryan at 6:30 p.m. Tuesday, August 18, 2015, 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, Daniel Halloran, and Nick Sehman. Also present were Development Services Director Paul Mood, Senior Planner Robert Rodgers, Town Attorney Gary Verburg, Board of Adjustment Attorney Kelly Schwab, and Paula Woodward Executive Assistant and recorder of the minutes. Chairman Paul Ryan present Board Member John Kovac present Vice-Chairman Carol Perica present Board Member Nick Sehman present Board Member Daniel Halloran present AGENDA ITEM #2 CONSIDERATION of the Board of Adjustment meeting minutes for February 17,2015. Board Member John Kovac made a MOTION to approve the meeting minutes from the February 17, 2015, Board of Adjustment meeting. Vice Chairman Carol Perica SECONDED and the MOTION passed 5-0,by those present. Roll call: Board Member John Kovac aye Chairman Paul Ryan aye Vice-Chairman Carol Perica aye Board Member Nick Sehman aye Board Member Daniel Halloran aye AGENDA ITEM#3 PUBLIC HEARING to receive comments on an APPEAL OF THE ZONING ADMINISTRATOR'S INTERPRETATION that an Assisted Living Facility's Definition is a residential land use. (Case#AP2015-01) Chairman Ryan declared the public hearing open at 6:35 p.m. Page 1 Chairman Ryan stated the meeting tonight is about a Zoning Administrator's interpretation of the definition of an assisted living facility and this definition is being challenged by the applicant who believes it should be defined as a commercial land use. To hear about those definitions and their rational behind them the Chairman asked to first hear from the applicant. Chairman Ryan invited the applicant to address the board. Bart Shea of Shea Connelly Development Group addressed the board. Mr. Shea stated they (Shea Connelly Development Group) are developing on the property of 3.3 acres where Morningstar is being built. Mr. Shea stated that the basis for contention between commercial and residential land use is that residential zoning affects the financing, tax base, and everything on the product as opposed to commercial. Mr. Shea said that on the original application for the determination that they had asked for a ruling on whether the building only was residential or commercial. The staff determined it was residential. He stated that they researched and concluded it is an I-1 occupancy, which the Town of Fountain Hills, building department agrees is commercial construction. The building is designed that way and has to be designed to meet the criteria for what it is. Staff determined it was a multi-family residential group home. The zoning does not exist. It was a combined zoning which is a group home. We are not contesting that a group home is residential. We are saying this facility is not a group home. It does not meet the criteria of a group home. Mr. Shea listed off what he felt qualifies as a group home; a dwelling with resident staff and a kitchen available for meal prep. Chairman Ryan introduced the Board Attorney Kelly Schwab while Mr. Shea retrieved information. Mr. Shea referenced the April 14th original Zoning Administrator's determination, where staff compared MorningStar to the Hemingway project, another Assisted Living Facility. Mr. Shea provided the board with handouts of the Hemingway product & the Morningstar facility. Mr. Shea stated that the Hemingway is a cluster of group homes,assisted living facility. Chairman Ryan asked if the Hemingway had individual kitchens in each unit or a central kitchen in each building. Mr. Shea stated there are 9 to 16 units in each building. There is a central kitchen in each building. The Hemingway project has about 164 units. Vic Chairman Perica asked if the Hemingway project had Independent living and what portion was Independent Living. Mr. Shea stated Independent living is about 40-50%, assisted living is 40%, and last 20% is memory care. Boardmember Kovac asked for Mr. Shea to review the kitchen requirements for a group home. Mr. Shea stated that the kitchen requirement for a group home must be accessible by residents • to cook and share meals. Page 12 Mr. Shea stated that The single MorningStar is a bui lding g bu dmg with no shared kitchen. The staff is there to assist while residents convalesce. The next stop is memory care or hospice. The average stay is 14 to 20 months. It is a single occupant system. Mr. Shea said that the determination that this is a multifamily residential product and using the group home determination has created a quagmire in the MorningStar construction financing and assets valuing as an apartment complex. Chairman Ryan asked for more details from a loan stand point and taxes. Mr. Shea stated that a construction loan is 70 %debt to 30 %equity as opposed to institutional class at 85% debt, 15% equity. The property would be taxed as an apartment complex as opposed to a nursing home. Mr. Shea referenced an email exchange between Bob Rodgers and The City of Tempe. Mr. Rodgers asked the City of Tempe, does Tempe make any distinctions based on size or number of beds in regards to about 100 plus bed facilities? Tempe replied, from a planning perspective we look at it as residential but for a facility of this magnitude the zoning designation would have to be agricultural or multi-family and is classified as a nursing home instead of a group home, The number of beds is not limited if the proposal meets all zoning and development codes in conjunction with building safety requirements. Chairman Ryan asked about Mr. Shea's other facilities and what the land use is considered for those facilities. Mr. Shea stated that his two facilities located in Glendale and Phoenix are considered as commercial with a special use permit. They are taxed that way. No further questions were asked to Mr. Shea however Chairman Ryan said he may be called upon later in the hearing. Town of Fountain Hills Senior Planner Bob Rodgers was called to present to the board the Zoning Administrator's Interpretation. Mr. Rodgers stated that this property was never zoned residentially. It was never given a residential zoning classification. This discussion is about the definition of an assisted living facility. Assisted living requires a special use permit in the entire Town Center Commercial District. However it is not a defined use. Chairman Ryan said because Fountain Hills does not have a defmition for the term assisted living facility, the closest definition is assisted care facility and you were asked what assisted living facility is for Fountain Hills. Mr. Rodgers stated the original determination, included in the packet, shows step by step how staff came to this conclusion. Mr. Rodgers stated that the Town never defined assisted living facilities as a group home, never defined it as a residence, and never defined it as a dwelling unit. It's a residential land use, meaning that residents live there, people reside there, it's where people live. In this case we are talking about a definition of assisted living and the determination that it is a residential land use rather than commercial. We are not talking about anything in the zoning ordinance other than the definition. No rules. No requirements. We are Page I 3 not talking about zoning districts or where the assisted living facility can locate. We are not talking about how they are permitted, financed, or insured. We are saying "assisted living" is defined as a residential land use because people reside there. Chairman Ryan asked was there any special use permit granted for this to be built as an assisted living facility. Mr. Rodgers stated that the Town Center Commercial Zoning District (TCCD) where this development is located had listed assisted living facilities within the special use permit uses. It's listed as a special use permit use,but not defined. That requirement became mute because this project went through the Planned Area Development process (PAD).The MorningStar PAD allows assisted living as a permitted use regardless of how it's defined. Mr. Rodgers stated that he surveyed other cities and towns and determined nearly all classify assisted living facilities as residential land uses. This is a very fair and rational definition of the use. Any statement to the contrary is misinformed or incorrect. This is not a zoning designation,just a definition of a use. Chairman Ryan stated that Mr. Shea said the other cities that have a MorningStar named them as commercial. When you talked to these other town's did you talk to Glendale and Phoenix and is that statement accurate? Mr Rodgers said the MorningStar in Glendale is considered a residential land use, required to get a special use permit to go into a commercial zoning district. Phoenix considers them regardless of size as a residential land use. Chairman Ryan stated there is a land use definition in real estate law but also to determine a tax base of a property. He asked the Board Attorney Schwab if this is true. Attorney Schwab stated they look to what the property is used for and the specific use of the building to determine the tax base. Vic Chairman Perica asked if assisted living is under the commercial umbrella and needs a special use permit? Mr. Rodgers stated that assisted living is listed in the commercial zoning districts as requiring a special use permit. It's listed in the residential zoning districts as a permitted use. Chairman Ryan inquired how the other existing facilities are defined. Mr. Rodgers stated that Fountain Hills currently has 13 assisted living group homes approved and defined as residential land uses. The Hemingway is also defined as a residential land use in a commercial district. Hemmingway also went through the PAD process. In staffs mind this question of how The MorningStar Assisted Living Facility is defined is moot. The zoning approvals have all been granted. Entitlements are vested and they have started grading the property. The outcome of this appeal will have absolutely no effect upon whether Mr. Shea's assisted living facility is allowed in the current location. Changing the definition only affects the other properties that are given the same definition. Staff requests the board find the Zoning Administrator has defined assisted living in a fair and accurate Page 4 • manner and that the definition is well within the zoning administrator's authority and that the board uphold the zoning interpretation as written. Mr. Rodgers submitted copies of the approved MorningStar PAD and the grading permit for the record. Town Attorney, GaryVerburg addressed the board about the process and guidelines to use when taking the appeal under consideration. The board is being asked to make a change that is important to other land owners that would be impacted. Boardmember Kovac asked about the overall impact and who it affects. Attorney Verburg stated that if the definition of assisted living was to change based on this appeal,existing facilities would be impacted. Chairman Ryan asked if they were to change the definition would they be changing the others to commercial? Attorney Schwab stated that if the definition was to change it would affect existing assisted living facilities and could cause them to be legal non conforming. She also stated that the zoning codes do not address taxation and are not written or adopted for considering the tax impact of zoning. It is not a tax consideration. It is novel in her experience for a request to want to revise a zoning definition for the tax implications. Mr. Verburg asked the board members to review the Morning Star project summary booklet, (applicant's own document), as the applicant refers to the project throughout as a residential facility. Attorney Verburg said Phoenix describes assisted living as residential use. Attorney Verburg questioned if the applicant qualified as an aggrieved party. Chairman Ryan asked Attorney Schwab if this situation fit any kind of grievance or is it hypothetical? Attorney Schwab stated that the findings are the Board of Adjustments responsibility. She would be able to provide legal guidance. However the decision of whether the applicant is a person aggrieved under the code is left to the body(Board of Adjustment.). Chairman Ryan asked Attorney Verburg to explain the hypothetical? Town Attorney Mr. Verburg stated that the appeal is hypothetical because the applicant has been granted the land use approvals he needs to build his facility. This is the legal argument the town would present. Attorney Schwab stated that the ruling tonight regardless of outcome, would not change the land use rights of this applicant and they will continue to build as permitted under the zoning approvals. Chairman Ryan reviewed portions of the agenda packet with the board members. He proposed to strike the multiple findings because the hearing tonight is about one case, this case. It should be a single finding. Page 5 Board Member Sehman stated that he feels there are 2 things the board should focus on when considering this appeal; Classification as a residential land use and the adoption of the working definition of the assisted living care facility. Chairman Ryan asked Mr.Rodgers to give a definition of assisted care facility. Mr. Rodgers advised the board members to refer to the zoning administrator's letter of April 14th determination letter, for the definition of assisted care facility as he did not have it readily at hand. Chairman Ryan asked Mr. Shea if he had any difference of opinion. Applicant Bart Shea stated the question is, is this building a residential use or commercial use? He agrees that the land use itself is a moot point because it has been approved with the PAD. Discussion ensued about the differences between assisted living, nursing home and group homes, licensing and kitchen allocation. Board Member Sehman asked Mr. Shea what is he proposing? Is he asking to change the definition or that this definition does not apply to him? Mr. Shea said he is asking that the building itself have a commercial use determination. Mr. Shea stated the definition of multi-family residential does not apply to the Morningstar building. Vice Chairman Perica asked for clarification about how the land is zoned and the amount of property. Mr. Rodgers stated that the land is zoned as Morningstar PAD. It was never un- zoned. There is no such thing as un-zoned property in Fountain Hills. This is three lots within the overall property. Chairman Ryan asked the resident speaker to come forward. Mr.Phillip Blackerby spoke in favor to support the applicant. Town AttorneyVerburg called upon Mr. Paul Mood,Development Services Director who read from a portion of the packet regarding the City of Mesa's definition of assisted living: that it is a Residential Care Institution. He also stated that another Morning Star, located in the city of Glendale is in a commercial office district which required a PAD process to allow MorningStar in a commercial district. Glendale considers it a residential land use - Building codes have nothing to do with the land use. This is about the land use. Chairman Ryan asked what does Glendale define MorningStar's land use? Mr. Mood referred to an email he sent to Mr. Rodgers regarding Glendale's definition of assisted living care which falls under Glendale's Congregate Care Facility and is defined Page 16 under article 2 of Glendale's Zoning Ordinance. In Glendale the facility is a long term residential facility. Chairman Ryan stated he understands the zoning portion but questioned is the land use in Glendale residential or commercial. Mr. Mood stated it is residential because it is a congregate care facility. Chairman Ryan said that Mr. Shea mentioned earlier his interpretation of MorningStar in Glendale as commercial. Mr. Shea stated the entire project in Glendale was originally a commercial PAD, Sunrise, (MorningStar) was cut out from that and ran with a conditional use permit. Shea Group was not involved in the lending process on the Sunrise project. Mr. Shea stated the current one he is working on in Glendale requires rezoning and a PAD with a conditional use permit. Vice Chairman Perica asked Mr. Shea, if he had mentioned at some point earlier that there is a difference between an assisted living facility and an assisted care facility. Mr. Shea said it depends on the licensing from the state. Chairman Ryan asked Paul Mood about the information he had about the MorningStar land use in Phoenix. Mr. Mood provided the board with Phoenix's Residential Care Institution definition which is residential and included in the packet. Chairman Ryan asked if there is anything in the State of Arizona Law about assisting living that defines it as a commercial or residential property? Mr. Mood said when the application is received from the state,they only ask if the property is zoned for this facility. Attorney Schwab stated there are licensing requirements under the state but what matters is the land use definition here in the town. That is where we have jurisdiction. Chairman Ryan declared the public hearing closed at 7:52 p.m. AGENDA ITEM#4 CONSIDERATION of an APPEAL OF THE ZONING ADMINISTRATOR'S INTERPRETATION that an Assisted Living Facility's zoning definition is as a residential land use. (Case#AP2015-01) Discussion took place amongst the board members about land use and what other municipalities have done with assisted living facilities. Vice-Chair Perica asked if there is a difference between zoning and what the use is on that 41) zoning. Page 17 0 Attorney Schwab confirmed that assisted care facilities are permitted with a special use permit in the Town Center Commercial District (TCCD). A Planned Area Development (PAD) was approved for this use by Town Council for this project. Thus not requiring a special use permit. Attorney Schwab addressed the board stating she cautions the board about trying to find a definition that fits this individual applicant's needs because the zoning ordinance and land use definitions are for everyone's use. It is an impact larger than just this case. Chairman Ryan read out loud the town's definition of an assisted care facility. He went on to ask board members if they felt comfortable with the discussions and are they ready to make a decision? Board Member Sehman stated he agreed the Zoning Admininistrator interpretation was reasonable and accurate and suggested the board find the same way. Chairman Ryan asked if we find this a residential land use at tonight's hearing, will it impact the other existing and future facilities? Attorney Schwab explained based on the testimony presented here tonight the historical interpretation has been as a residential land use so she does not believe a finding of residential land use would create a negative impact on the uses already on town. Vice Chairman Perica and Board Member Kovac agreed that the Zoning Administrator's interpretation is correct and reasonable. Board Member Kovac made a MOTION to find the Zoning Administrator's Interpretation that an an assisted living facility is a residential land use, as well as the adopted working definition of Assisted Living Facilities, are both reasonable and accurate. Vice Chairman Perica asked Board Member Kovac if he would entertain an addition to his motion. Board Member Kovac replied yes. Board member Perica asked this interpretation apply to the MorningStar project exclusively. Attorney Schwab advised the board against adding the exclusivity clause. The Zoning Administrator's Interpretation is an official record and provides guidance to future projects and developers. This is the way similarly situated properties will be treated. Boardmember Perica withdrew her admendment. Chairman Ryan stated Boardmember Kovac's motion and asked for a second. Vice chairman Carol Perica SECONDED and the MOTION passed 5-0,by those present. 11) Page 18 C Roll call: Board Member John Kovac aye Chairman Paul Ryan aye Vice-Chairman Carol Perica aye Board Member Nick Sehman aye Board Member Daniel Halloran aye AGENDA ITEM#5 ADJOURMENT The meeting adjourned at 8:20 p.m. FOUNTAIN HILLS BOARD OF ADJUSTMENT ATTEST: aijl Chairman Pau 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 18th day August of 2015. I further certify that the meeting was duly called and that a quorum was present. Dated this 18th day of August 2015. iqual ( ), Paula Woodward,Executive Assistant Page 19