City of Tempe Board of Adjustment Meeting - December 17, 2025
City of Tempe Board of Adjustment Meeting - December 17, 2025
The City of Tempe Board of Adjustment convened to deliberate on an appeal regarding a special zoning administrator's opinion that declared the City legally unable to require a use permit for a detached, two-story accessory dwelling unit (ADU). The central legal dispute involved whether the Arizona state ADU statute preempts the City's local zoning code requirement for a use permit when adding a second story to an existing structure in the neighborhood.
Consent Calendar
- The Board voted to accept the meeting minutes from November 19, 2025, with five members voting in favor and two members (Kevin Morrow and Ron Keggy) abstaining as they were not present at the prior session.
Public Comments & Testimony
- Cameron Varbo, a neighborhood resident and supporter of the original zoning restrictions, expressed strong opposition to the new ADU design. He stated he purchased his home specifically because the Broadmore neighborhood consists entirely of single-story homes and emphasized a desire to maintain that character. He characterized the appointment of the special zoning administrator as hiring a "hired gun" to override the existing legal opinions.
- Jana Lynn Granillo, a neighborhood advocate, addressed the legislative intent. She argued that it is an error to assume a single, unified legislative intent regarding ADU statutes, noting that individual legislators hold different opinions and agendas.
- Don Sinclair (Appellant) provided a rebuttal to the special zoning administrator's testimony. She expressed a clear position of support for the City Attorney's and the original Zoning Administrator's interpretation that a use permit is required for a second story on an ADU built on a lot with an existing single-family home. She argued that the state statute does not explicitly preempt the city from requiring a use permit for a second story if such a permit is required for a similar action on a primary residence.
Discussion Items
- Legal Interpretation of Second Stories: Don Sinclair argued that the state statute's prohibition on "height" restrictions does not explicitly ban use permits for a second story, especially when a second story adds to an existing structure. She maintained that the City Attorney and original Zoning Administrator provided consistent, four-to-six instances of legal advice over seven months stating the City can require a use permit in this specific context.
- Special Zoning Administrator's Opinion: Judge Gary Donahoe presented his independent opinion, asserting that the state legislature intended to eliminate "red tape," including use permits and public hearings, for all ADUs. He argued that requiring a use permit for a second story effectively imposes a restriction not found in the state statute and constitutes an abuse of discretion. He stated his opinion that the statute is "crystal clear" that ADUs are permitted uses and cannot be subject to the public hearing process inherent in use permits.
- Standard of Review: Board members questioned whether the standard of review should be de novo or deferential. City Attorney Eric Anderson clarified that while this is a legal question, the standard of review remains whether the special zoning administrator's decision was arbitrary, capricious, or an abuse of discretion, or based on clear error.
- City Code Discrepancies: Board members noted that Tempe's requirement for a use permit to build a second story on an existing single-family home is unique to the city. This distinction raised concerns about whether the state law was intended to override this specific local procedural hurdle or if the code conflict needs to be resolved with the City Council.
- Precedent Concerns: Some Board members expressed concern about setting a precedent that might allow any ADU to be built without design review if the special administrator's opinion were upheld, potentially affecting neighborhood character.
Key Outcomes
- Motion to Approve the Appeal: Board members voted to approve the appeal of the special zoning administrator's opinion.
- Vote Tally: The motion passed with a vote of 6 to 1. (Members: Kelly Morrow, Lily Drosos, Mary Foy, Kevin Morrow, Katie Cross, Ron Keggy voted Yes; Andrea Samushka voted Nay).
- Final Ruling: The Board found that the special zoning administrator's opinion (that a use permit is not required for a two-story ADU) was incorrectly determined. The Board overturned Judge Donahoe's opinion.
- Referral: The matter is referred back to the City Council to reconsider the requirement for a use permit for the two-story detached ADU, as the City's original determination that a use permit is required is now the prevailing position of the Board of Adjustment.
Meeting Transcript
Good evening. Welcome to the City of Tempe Board of Adjustment meeting for December 17th, 2025. The time is now six PM. The City of Tempe Board of Adjustment is authorized by the Arizona Revised Statutes and the City of Tempu 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 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 Staff Development Summary Reports on the item uh being considered at this meeting, and we'll use this report in our deliberations. We're going to start with a roll call of board members present, starting from my far right. Andrea Samushka here. Lily Drosos. Mary Foy here. Kevin Morrow. Ron Keggy. Sean McCarley. Katie Cross. We have seven members present, no absences, uh, and we have a quorum. Uh staff introductions. Uh we have, I think I saw Jeff uh Tamulovich sneak in, uh, director of community development. Uh we have Ryan Levesque, Deputy Director of Community Development, Eric Anderson from the City Attorney's Office, uh, Diane Kaminsky, the principal planner, Robert Manzaleo. Manzalillo, the senior planner who we'll hear from later, uh, Jennifer Daniels, our administrative assistant, and Jason Wolfe on media not using Betamax. I try to be funny. I I don't know. Maybe that's maybe it's in Ports, but um during the during the hearing, uh all applicants and interested citizens when your request is called, or if you wish to address the board, please make sure you have filled out a uh citizens request form uh located on the table by the doors, and then give them to Jennifer. Uh and then I'll um uh during the time given, uh you'll step up to the microphone, state your name, city of residents. And uh for members of the public, you'll be given three minutes to speak and staff will assist in monitoring time. Uh agenda items. Switching. We have uh well, first we have the consideration of meeting minutes uh from our board meeting and study session from November 19th, 2025. Do we have any uh comments about the minutes? It was a long meeting if I remember correctly. Um do I have a motion? Oh, do I need to do the study session minutes and the regular meetings as two separate items? Together. Okay, do I have a motion uh regarding the November 19th meeting? Motion to accept the meetings. I have a motion. Do I have a second? Second. I have a motion and a second. Uh all those in favor of um adopting them uh minutes from our November 19th sessions signify by saying aye. I and I abstain. I was not present, thank you. I abstain, I was not present. Okay, so we have five in favor, no against, and two obsessions, so the motion carries. The appellant is Don Sinclair. The project pan planner is Robert Manzel Manzalillo. We're gonna work on this. And so we're gonna hear from Don, then we're gonna hear from Robert, then we're gonna hear from Judge Donahue. Ms. Sinclair, the floor is yours. Good evening.
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