Board of Adjustment Approves Giguere Residence Setback Variance Appeal – April 22, 2015
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Board of Adjustment Meeting – April 22, 2015
The Tempe Board of Adjustment met on Wednesday, April 22, 2015, to consider two agenda items: approval of the August 28, 2013 meeting minutes and an appeal of a hearing officer's denial of setback variances for the Giguere Residence at 534 West 15th Street. After hearing testimony from staff, the applicant, and neighbors, the Board voted 6–1 to overturn the denial and grant the variances.
Consent Calendar
- Approved the minutes from the August 28, 2013 study session and formal meeting. Motion by Mr. Dalton, seconded by Mr. Cosmo; carried with two affirmative votes and none opposed (only members who attended the prior meeting voted).
Public Comments & Testimony
- Kim Pierce (519 West 15th Street) opposed the variance, stating the home is not in compliance with the code. She said neighbors called the city during construction and were told it was fine, and that the applicant, a professional, should have recognized the error. She urged board members to visit the neighborhood before ruling.
- Karen Adams (531 West 15th Street) opposed, describing the house as a "gray ball" that eliminated green space and altered the character of the first Del Webb community. She said she obtained a variance for her own home through proper process and warned against allowing a contractor to "rush something through" and apply for a variance afterward.
- Erin Gittless (1206 South Ash) opposed, arguing zoning standards exist to keep neighborhoods orderly. She said a large dwelling mass moved forward is more egregious than open carports, and that variances should be granted judiciously. She asked that the dwelling be held to the 20-foot setback.
- Frida Rothermel (509 West 15th Street) said her home has no variance and disputed claims that it did. She said carports are different from a permanent dwelling, and that granting this variance would set a dangerous precedent for developers to make "honest mistakes." She suggested the owner move or modify the house to meet the setback.
- Chet Myers (530 West 15th Street) opposed, noting the applicant admitted making a mistake and that other structures were pre-approved, while this variance was sought after construction. He said the code should be upheld.
- Barbara Lloyd (515 West Parkway, co-chair of the neighborhood association) opposed, stating the neighborhood should have had input before construction. She said the error was found during construction and could have been corrected, making the hardship self-imposed. She described the house as too large and too far forward.
Discussion Items
- Staff presentation: The appellant appealed the February 17, 2015 hearing officer's denial of two variances: reducing the front yard setback from 20 feet to 10 feet and reducing the on-site driveway length from 20 feet to 10 feet. The residence at 534 West 15th Street was completed in fall 2014. Staff explained a discrepancy between building permit plans (right-of-way shown as 15 feet) and civil plans (right-of-way shown as 25 feet). Both plans showed the house 20 feet from the property line, but in the field the house was built approximately 10 feet closer to the curb. Staff noted at least 12 prior setback variances in the area, mostly for carports, and that no prior variance of this type had been found denied. The house holds a temporary certificate of occupancy pending this appeal.
- Applicant Bob Giguere (owner of 534 West 15th Street) stated the property was a foreclosed home in disrepair. He tore it down and built a new home, relying on a demolition site plan that measured the 15-foot right-of-way from the centerline of the street. He said more than 20 inspections passed, and when the setback error was discovered in November, he met all conditions imposed by the city, including redoing civil site plans, removing retaining walls, and redoing landscaping. He argued the hardship is tied to the real estate (approximately $500,000 invested), the house is safe, and other properties in the neighborhood have equal or greater encroachments.
- Board discussion: Members debated whether the approved plans were accurate and whether the error lay in construction. Mr. Lyon, a registered architect, argued the appellant received legal approval and should not be held responsible for an error the city failed to catch. Mr. Cosmo argued the drawings were accurate and the construction deviated from them. Staff clarified that the dimension from the building to the property line was correct on both sets of drawings; the difference was in the right-of-way dimension. Staff also noted that building inspectors do not formally measure setbacks at footing inspections. The board weighed the impact on neighbors and the implications of overturning the denial.
Key Outcomes
- Motion by Mr. Deer, seconded by Mr. Hagel, to approve the appeal and overturn the hearing officer's denial of the variances for the Giguere Residence (PL140422) at 534 West 15th Street.
- Vote: 6 in favor, 1 opposed. The hearing officer's decision was overturned, granting the variances to reduce the front yard setback from 20 feet to 10 feet and the on-site driveway length from 20 feet to 10 feet.
Meeting Transcript
Good evening, everyone. My name is Jan Sell. I'm the chairman of the zoning adjustment board. First meeting that I'm the chairman. So bear with me. I want to um open this uh board of adjustment for Wednesday, April 22nd, uh 2015, City of Tempe. The first order of business is to consider the minutes from the August 28th, 2013 meeting. I vote to I um have a forward a motion to uh approve the minutes. I second the motion. The uh minutes have been a uh motion has been made by Mr. Dalton and second by Mr. Cosmo that the minutes be approved. Um call for the vote right now. All those in favor of approving the minutes well, I'm sorry. Let's do that again. Only people can vote or the people that were at the last meeting. Okay, so uh we have two reaffirmatives. No one against so the motion to approve the last meeting carries. The next item is our first and only case, and that is PL 14042. That's the Jagiri residence located at 534 West 15th Street. Um the first thing we will do here was um have a description of the case and discussion from the staff to present the case. Good evening, Mr. Chair, members of the board. Um, we're here tonight to hear an appeal from the hearing officer um agenda of February 17th, 2005 for a setback variance for the residence. I'm sorry, I butcher his name every time. Um the case was heard um twice by the hearing officer, and at the February 17th hearing, the case was denied. Um, there is a correction on the staff report. It is denied, it was denied. Um, she gave her reasons, and I'll leave the applicant um his time to just to to discuss those um his reasons for bringing it forward for the appeal. Um just a little history. This this is a residence. Let's start with this item. This residence has been built. Um it was built and finished construction in the fall of 2014. Here's reference a picture of the residents. Um the house that the house currently sits 20 feet back from the curb. So uh I'll turn it. This is the way it is in the um here's the alley to the north. 15th Street is on the south. Um the bottom of the page. Right-of-way is 25 feet to this point. Here's the curve for reference. So this is the right-of-way, and the setback is 10 feet near the property line to the house. They are seeking a variance, two variances. One to reduce the front yard setback from 20 feet to 10 feet, and a variance to reduce the on-site driveway length. This is on-site, that being everything behind the ride away from 20 feet to 10 feet. In reality, they will have a 20-foot on-site drive, 20 feet on the property driveway. That's 20 feet behind the curb to the house, which is always um something that we strive for is so that you don't have cars hanging over sidewalks, but there are no sidewalks on 15th street on either side of the street. How this case came to be before the the board of adjustment, the hearing officer originally is the property owner came in, um, received a building permit for his house, um, showing it at 20 feet behind the property line, or 25 feet roughly behind the curb. They there was a there was a variation in the plans, the civil plans and the board of and the building permit plans on the right-of-way, but it really in the end is the material because it was shown.
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