Board of Adjustment Meeting: May 23, 2018 Appeal Decision
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Board of Adjustment Meeting – May 23, 2018
The Tempe Board of Adjustment convened on May 23, 2018 at 2:15 PM to consider an appeal of the Hearing Officer's February 6, 2018 denial of a variance for Blue Dragon Vapor (a vape shop) located at 6473 South Rural Road. The board approved the appeal by a vote of 6–1, granting the variance conditional on obtaining a non‑transferable use permit.
Consent Calendar
- Minutes Approval: The March 28, 2018 study session and formal meeting minutes were approved with one abstention (Board Member Collins).
Public Comments & Testimony
- Terry St. Michael (resident): Opposed the variance, stating that the vape shop is too close to Marca de Niza High School and that even if the business is responsible, a variance could set a precedent that allows future unattractive uses.
- Jim Philo (businessman): Supported the variance, noting that the owners followed city procedures, paid fees, and the city should acknowledge its own earlier mistakes.
Discussion Items
- Staff Presentation (Lee Himana): Blue Dragon Vapor is located approximately 210 feet from a church and 1,004 feet from Marca de Niza High School. The Hearing Officer denied a variance to reduce the required 1,320‑foot separation from schools. The underlying use permit (not a variance) was not acted upon at that time. To date, no public input had been received for this appeal.
- Appellants' Case (Claire Lane, Attorney; Tracy Moore & David Barno, Owners):
- The owners argued that they were initially told by former Community Development Director David Nakagawara that their vape shop did not qualify as a “tobacco retailer” because less than 20% of sales involved nicotine and none involved tobacco. Nakagawara allegedly canceled the use permit hearing and closed the file. No written documentation of that decision was provided.
- The owners demonstrated they have strict age‑verification policies, low nicotine offerings, and that 13% of 2017 sales involved nicotine. They have not received any citations or complaints from the neighboring school.
- The school (GateWay Christian Academy) is closing; new owner (Valley Christian Junior High) is aware of the business.
- Board Deliberation:
- Several board members acknowledged the owners' good faith, investment, and lack of documented fault. They also recognized the lack of official record of Nakagawara’s decision.
- Some members expressed concern about setting a precedent for other properties, but noted the variance criteria allow consideration of individual hardship and public benefit.
- The board discussed conditions: making the variance contingent on obtaining a non‑transferable use permit (i.e., the variance would only be valid for Blue Dragon Vapor under current ownership, and a new owner would have to seek a new variance/use permit).
Key Outcomes
- Vote: The board approved the appeal (6–1, Vice Chair Fraze dissenting) to overturn the Hearing Officer's denial. The variance is granted conditionally on:
- Blue Dragon Vapor obtaining a non‑transferable use permit (variance becomes effective only upon permit issuance).
- The use permit may include conditions that prevent transfer to a new owner, as recommended by the board.
- Next Steps: The applicant must now return to the Hearing Officer for approval of the use permit. The board’s recommendation for a non‑transferable condition will be included in the minutes.
Meeting Transcript
See if the microphone works. No, it does not. The Board of Adjustment is authorized by the Arizona Advice Statutes in 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 Community Development Staff Summary reports on the items being considered at this meeting and will use this report in their deliberations. All right. Sadly, uh we have to I have to make this statement. Unfortunately, uh Diane McGuire, our administrative assistant since 2001, passed away on March 10th unexpectedly. Or May 10th, May 10th, my bad. Um I want to uh uh remember her as being a very diligent, hardworking individual who really never let us down in any way, shape, or form. She was an asset to the city of Tempe and its citizens, and uh she will be remembered fondly by us. Uh and I'd like to have a moment of silence for Diane. Ladies and gentlemen, if you would please join us in a moment of silence. Thank you. So let's say board members today. Richard Watson. John Pazalskis. Whitney Baker. Chairman Lyon. Vice Chairman James Frase. Kevin Collins. David Nogle. Thank you, board members. We also got a microphone test out of that one, so that's handy. Our first uh item of business will be a consideration of the meeting minutes of the last time. We have reviewed these meeting minutes in our study session, and I will hear a motion regarding their approval, please. Uh board member Baker. I make a motion to approve the meeting minutes from our last meeting. Do I hear a second? I second that motion. Okay, moved by uh board member Baker and seconded by board member Noggle. All those in favor, please uh indicate by show of hand. Uh Collins abstaining. Did I see two of sessions? I'm saying my apology. Well, I need someone to teach me math anyway, so that's a good start. All right. So let's move on to our one case for the night. Good evening, uh Chair Line, Vice Chair Frazy, members of the board. I'm Lee Himana, I'm the senior planner with the community development department in the planning division. Uh Blue Dragon operates a vape shop in a shopping plaza located on the southeast corner of East Wadalupa Road and South Rural Road in the PCC One Client Commercial Center neighborhood district. Per the zoning code, tobacco retailers should not be located on a lot within 1,320 feet, measured by a straight line in any direction from the lot line of a charter school, private school, or public school which provides elementary or secondary education. The vape shop is sited on a lot located approximately 210 feet from Gastending Lutheran Church and 1,004 feet from Marcos Deniza High School. On February 6, 2018, the hearing officer heard and denied the variance request by the applicants, Tracy Moore and David Barno to reduce the use separation requirements from a tobacco retailer to an elementary or secondary school from 1,320 feet to 210 feet. No action was taken on the use permit at the time. Prior to the February 6, 2018 hearing officer, staff received two phone calls and one email in opposition, and at the hearing, four people spoke in opposition. On February 13th, 2018, an appeal to the February 6th hearing officers decision was submitted by appellants, Tracy Moore and David Barno. So far today, no public input has been received by staff regarding the appeal. As uh discussed at study session, the the minutes at as discussed at uh study session at the March 28th hearing, uh the meetings were corrected to reflect uh a clerical error, uh, citing that uh Mr. Clare was in opposition when in fact he was in support of the variance request.
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