Tempe Board of Adjustment Meeting on August 24, 2011: Appeal of Variance Denial for Brown Residence
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Tempe Board of Adjustment Meeting – August 24, 2011
The Board of Adjustment met on Wednesday, August 24, 2011, at 2:15 PM (local time) to consider an appeal of the July 19, 2011 Hearing Officer’s decision denying a variance for Douglas Brown’s property at 12244 South 71st Street in the AG (Agricultural) district. The applicant sought to reduce the street side yard setback from 30 feet to 10 feet to construct a garage and gardening shop. The board heard over 90 minutes of public testimony, reviewed written support from 24 neighbors and one opposition letter, and ultimately voted 5-2 to overturn the hearing officer’s decision and grant the variance with conditions.
Consent Calendar
- Approval of Meeting Minutes (April 28, 2010): The board approved the minutes of the previous meeting by a unanimous vote of the four members who had attended that meeting.
Public Comments & Testimony
- Staff Presentation (Sherry Lesser, Planner): Provided background on the appeal, noting the applicant had modified his request from a zero setback to a 10-foot setback. She confirmed 24 letters/emails of support received and one opposition letter.
- Applicant (Douglas Brown): Explained that the property is on a one-acre corner lot abutting Warner Road, which carries over 23,000 vehicles per day (over 8 million annually). He argued that the lot’s unique conditions—size, corner location, and adjacency to a major arterial—create special circumstances justifying a variance. He noted that many neighbors have outbuildings within setbacks and that his proposed 10-foot setback aligns with the existing garage of the property to the west. He also mentioned that he had relied on city staff assurances from 1996-97 that a variance would be obtainable.
- Supporters (12 speakers total): Residents and professionals (including architects Bob Hunt, Jack Hoffman, and Joe Salvatore) praised the design, argued that the building would be a good buffer from Warner Road, and stated the variance would allow Mr. Brown to use his property similarly to his neighbors. A neighbor, Archer Shelton, said the variance would let Mr. Brown “enjoy his land in a way consistent with other residents.” Lynel Cady and Sharon Ashby supported the project, emphasizing the quality of the applicant’s property maintenance and the reasonableness of the request given the busy street.
- Opponent (John Hodgson, neighbor on 71st Street): Objected on aesthetic grounds, calling the proposed 14-foot-tall stucco wall (69 feet long, with a 28-foot copper barrel-vault section) an “aesthetical incursion” that would be visible from the south. He argued the variance would set a bad precedent and that the applicant knew the zoning and setback requirements when he bought the property. He also questioned the validity of the support petitions, noting that many signatories might not live in the immediate neighborhood.
Discussion Items
- Board Deliberation: Members debated whether the variance met the four statutory criteria (special circumstances, no self-imposed hardship, no grant of special privilege, and consistency with the zoning ordinance’s intent).
- Board Member Dodd expressed concern that the applicant’s reliance on past staff assurances was weak given his professional experience, and questioned whether the special circumstances were significant enough.
- Board Member Ardondo emphasized that the location on Warner Road and the lot’s corner status created genuine hardship, and that the building would be largely screened by existing walls and proposed landscaping.
- Board Member Dr. Stem noted that the building’s size (larger than many homes) and the potential visual impact on neighbors had to be weighed, but the fact that the lot faces a busy road reduced the impact on residential properties.
- Board Member Mazza supported the 10-foot setback, citing the unique conditions and the applicant’s willingness to compromise. He suggested that requiring a larger setback (e.g., 16 or 20 feet) would likely make the project infeasible.
- Staff Clarification: Planner Lesser clarified that the standard side setback for a key lot in AG is 30 feet; a reduction to 20 feet could be considered through a use permit process, but staff recommended denial of the variance as originally proposed. She also noted that conditions of approval could include design elements, though single-family projects do not normally require design review.
Key Outcomes
- Motion by Board Member Mazza, seconded by Board Member Ardondo: To approve the appeal and grant a variance reducing the street side yard setback from 30 feet to 10 feet, subject to the following conditions:
- The street side yard setback is modified to 10 feet.
- All necessary building permits and engineering clearances must be obtained.
- Trees shall be planted in the right-of-way as proposed, with a maintenance agreement to ensure their survival (per city code, property owner is responsible).
- Vote: 5 in favor (Mazza, Ardondo, Pozowskis, Gillen, Dr. Stem) and 2 opposed (Dodd, Sell).
- Result: The hearing officer’s denial was overturned, and the variance was granted.
- Adjournment: The meeting was adjourned by unanimous consent.
Meeting Transcript
Good evening and welcome to the uh this meeting uh this public hearing of the Board of Adjustments. I'd like to call the meeting to order. Uh the Board of Adjustments is authorized by the Arizona Revised Statutes and the City of Tempe zoning ordinance. Its function is to grant relief where a literal enforcement of the zoning ordinance would result in an unnecessary property hardship to interpret provisions of the zoning ordinance and to hear appeals from any person or city official aggrieved by the decision of a person responsible for the enforcement of the zoning ordinance. The board has the City of Tempe Development Services Department report on these items being considered at this meeting, and uh and we'll use that report for this deliberation. Uh I wanted to quickly say welcome. We have a new member with us tonight and go through our staff to my left, Jan Sell is a new member joining us. Chris Dodd, who is also the new vice chairman of this board, uh Dr. Wallace STEM on my right, I have John Gillen, John Pozowskis, and Joe Ardondo. I'm Dave Mazza, Chairman of the Board. Uh I want to let everyone know that this is a public hearing and to assure that all the applicants and interested citizens have a fair fair hearing order must be maintained. Uh as we get into the process, when we after a staff report, the applicant will be allowed five minutes to present, and uh and we we may have some some questions for you, and then we'll allow a uh open into the floor uh and and follow that procedure. When we go uh and again, has everyone turned in a speaker's card that wishes to speak? Get that on camera. Um we'll allow three minutes of input for each uh citizen that wishes to uh to voice their opinion, uh and we also ask that if there uh if your uh support, either for or against is similar to one comment, or if you could please keep it short and refer to uh agreeing uh with someone else. That'd be terrific. And uh and please remember that all outbursts, applause, and other actions uh should not be allowed to happen. Uh we want to uh uh get to our first order of business, which is the approval of our previous minutes. Uh it's been a while since this board met, so the voting is limited to members that were at the meeting of August or April 28th of 2010. Uh if we could uh review those, do we have a motion? I move that we have second. I second second from Dr. Wallace Stemm. The uh minutes can be officially entered. Oh, we need to vote on that board. All in favor? Aye. And uh any opposed to that of you four members, terrific. Now we're good. We will move into the specifics for tonight's meeting. Uh tonight we will hear a request to appeal the July 19th hearing officer's decision denying a request by the Brown residents located at 1244 South 71st Street. That address is not correct. Is 12,244 South 71st Street in the agricultural district? Uh, variance number is VRA 1100 1.4. The uh the applicant has modified his request as well as that. So, all information tonight that you'll be presenting to the board, uh, we will take it as a uh a new application, and and we will weigh the evidence presented to us against the standards we're presented with in our development code. Uh Sherry Lesser, as staff planner, would you like to? Mr. Chair, members of the board, good evening. I will not bore you with a really long presentation, just a brief introduction of where we are and give you a little history. Um as you stated, this case was heard before our hearing officer, and the applicant asked at the time for a zero setback, and the variance was denied. He's here tonight to appeal that decision to your body. Um he has changed his plans to modify the setback to a 10-foot setback, which is allowable. It's not greater, a greater variance than what he was requesting before. For reference, this property is located in the Tallyhoe subdivision. It's on the north side of Warner, and it's west of rural. Um the site plan in your packet shows, as I stated, a 10-foot setback, and the building height is 14 feet in height. Um during the pre-session, I gave you um 24 letters of support or emails of support that I've received since the packet was issued, and we also received one letter in opposition. Um with that, I'll be happy to answer your questions, or we can just move on to the applicant and uh let them make their presentation. Thank you.
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