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.

Um I was here during the study session, and I wanted to clarify that this isn't about factual issues.

This isn't about the number of two-story houses in Broadmore or the number of two-story ADUs.

And this isn't a policy discussion about whether or not it's a good idea to have two-story ADUs.

This is about whether the state ADU law prohibits the city from requiring a use permit for a second story on an ADU.

This is a purely legal issue.

Tonight, you must decide whether you agree with one the legal analysis and advice about a permit for a second story that the city attorney and the actual zoning administrator have consistently given to the council and the mayor for at least the last seven months.

That yes, the city can require a use permit for a second story on an ADU, or two, the opinion of a hired substitute zoning administrator who, from all appearances, was hired to give the council and mayor a different opinion that they much prefer to the city attorney's opinion and the zoning administrators' opinion.

Staff gave you a timeline of this case, but we need to flesh that out a little bit.

So you have all the factual background that you need to understand the context of the decision that you are about to make.

Now, I have some video clips.

Um did you get those?

So you can hear exactly what was said at meetings, but that requires that I take a little bit of additional time, maybe seven to ten minutes.

I know that 15 minutes is sort of a suggestion, but will you allow me to do that, particularly given there's no one behind us?

I'm fine with that.

Any any opposed?

I second, accept it.

Yeah, we'll say yes.

And before I go any further, I wanted to address uh Chairperson Morrow's um transparency thing about the case that we have had.

I believe that he is currently sitting in an appellate position on a case that I had as trial counsel, and this was probably was it 20 years ago?

If it's the case I'm it's the if it's the case we're thinking of, I I believe I was in college at the time.

Well, I don't think that you're sitting as appellate counsel at the AG's office on a case in which I was trial counsel 20 years ago presents any kind of conflict.

So I just wanted to make sure that for the record that is laid to rest.

Thank you.

Okay.

So the timeline for what's going on here.

On May 1st, there was a council hearing about exactly the same issue, but about a different ADU.

It was one that was proposed for college.

Council members were concerned about whether requiring a use permit for a second story runs afoul of the state ADU law.

The city attorney or the zoning administrator or both told the city council and the mayor four times that it did not, that they could require a use permit for a second story.

There's also there's two use permits here.

There's one for the second story, and there's one for the height.

Um, I I don't think the bill has anything to do with stories, and I know they sound the same, but I think those are treated different legally.

So I think they do need a use permit for the second story, regardless of the issue with the height.

Now, um the the in terms of the issue with the height, what the bill talks about is you can't have uh more restrictive setbacks, height, um, etc.

But here I think you've got a combination of setbacks and height that that are being imposed on the neighborhood that I don't think was intended by the legislature at all because you have restrictions that are applicable uh to uh a house in the district, which is 30 feet.

Um, but you've got setback requirements for that house that resulted in uh the one house on the west side of college where it is.

I mean, if you go there, it's it's very different because it's in the middle of the lot because of the setbacks, and it's also um you know, it's a part of the house.

So here um the imposition on the neighbors, and and I wonder, uh I don't think we'd have this use permit process at all if they could do this as of right.

I mean, if they can do this anyway, what are we what are we doing here?

Um I I think certainly for the second story, I think there's they need the use permit.

I don't think the legislature intended to allow people to have um 30 feet um with a five-foot setback.

Um I think if you read the statute, I I think what they're saying is look um for an additional dwelling unit, you can impose more restrictive height setback, et cetera, than you oppose on the house.

Well, what is it for a house?

It's 30 feet height, and it's you've got all those setbacks.

So I think when you take that in combination, I think that's why we still have a use permit process.

I think if that weren't the case, I think your city attorney would say uh, you know what, this whole hearing is a complete waste of time because we have to allow this without a use permit.

So that's what our that's how I would respond to that.

Okay, that was the law.

That was the lawyer for the um appellant in that case.

And basically he's saying, what do we do in here if the city cannot require a use permit?

Why do we have this hearing at all?

It's just a total waste of time.

Um the city attorney in response says, you know what, he's right.

If the city can't require a use permit, there wouldn't be a hearing.

But the zoning administrator, who the city attorney says is the ultimate voice with respect to the ordinances, says they can.

Would you play one a?

If I understand, yes, you can certainly direct a question to the city attorney.

Yes, my question is what they just asked is do that um do that use of party, um, does do we need a permit for the second story?

Is that correct answer or that's Mayor, Councilmember Hodge, the determination by the zoning and planning and uh community development and the planning and zoning was that in this circumstance that a use permit was required?

That's correct.

If they had determined that it one wasn't required, then we probably wouldn't be here tonight.

It would have been administratively, but the determination by the community development department um was that it was required.

So that's the genesis of this appeal.

That's not the question.

Okay.

Okay.

Sounds good.

No, thank you, Council Ruck.

Next, the mayor asks about it.

He gets the same answer from the city attorney that the zoning administrator says they can require a use permit.

So just from a context standpoint.

But I was going to ask you, Mr.

Anderson, um, do we in terms of restricting the height on an ADU from your perspective?

The way that the law was written and obviously signed into law, do we have the ability to make that distinction here?

I mean, obviously, as Mr.

Lesota talked about, there's a use permit, so clearly there's a reason why we're having this hearing.

But your reading of that law and your understanding of that law, do we have the ability to say we are going to restrict this property to only a one-story ADU, or is that an arbitrary and capricious decision on our part, or is that not in keeping with the intent of the law that was signed?

Uh thank you, Mayor.

Yeah.

Uh and uh my poorly uh answer to council member Hodges' question attempted to respond.

Um the state law was recently adapted as the council is aware, so we don't have a lot of guidance on it.

Um it does refer to it um as being a the same height restrictions as would apply um in that zoning district because what I would look at the the second story requirement as a species or subset of height requirements.

That's why I think that in this case the zoning code, which was adopted and approved and went through the vetted process to be in compliance with state law.

Um granted there might be people that disagree with us on that, but I think that's a reasonable interpretation that was adopted by the zoning administrator who's uh by state law is the uh frontline interpreter of the the zoning and development code.

So there's a reasonable interpretation that this was part of a high height restriction, the the uh use permit.

So yeah, we we we think that's consistent with the state law.

Granted, it's it's not a hundred percent clear, there's not case law yet or anything, but we do think it's consistent and reasonable and and defensible that and yes, we wouldn't be here if if it was if we felt it was a different way around.

Sounds good.

I may have another question, but I'm gonna go to Councilmember Ambassador next, one of the council members still concerned about this, directs a question to the folks who are at the top of the development department here.

Um she wants to know can they confirm that they can have a use permit for a second story?

And they say yes.

This is a rather lengthy clip.

Originally constructed in the 60s, or they were added to later on uh and obtained a use permit to do so.

Okay, thank you.

I wanted to clarify uh Eric, what you just shared with us, and it was in response to council member Amberg's question.

So my understanding is that the week you one, a city cannot impose additional restrictions on ADUs.

You cannot impose additional restrictions that do not already exist for single family homes, correct?

Okay.

So the issue here tonight, or the topic tonight for us are the use permits for a second story structure, second story of the ADU.

Which if a homeowner was going to add a second story to their single family home, they would need to get a use permit also.

So it's nothing extra, it's the same process.

Okay, thank you.

Correct.

That was it.

The only excuse me, the only thing sorry for my choppy editing.

Um this gets discussed yet again.

And the city attorney says that the development review committee, commission staff believed that a use permit is required.

If they didn't, they would have told the DRC so and they wouldn't have had the DRC hearing.

Could you do number four?

So just to go back to the discussion earlier, what the the the city interpretation is that led us here today, because if if there was a different interpretation, that would have the ADU would have been administratively approved and wouldn't have been any DRC decision.

So the city interpretation led us here today that is essentially, and this is a short version, but essentially that the use for the second story requirement is a part of the height restrictions of the area, and therefore it's within the uh it's consistent because uh I think we've heard testimony here tonight from the community development department that the same restrictions would apply if if the applicant had wanted to raise his existing home and add a second story to it, the main structure he would have had to have a or they would have had to have a a uh use permit.

So applying that same criteria, there's a use permit.

If they wanted to raise put a second story on top of their main dwelling, they would need a use permit.

So uh consistent with state law, then the same ups applies to the ADU, they're seeking to do a second story, so it's consistent in our minds that in an acceptable interpretation.

Granted, this you know, the courts are the ultimate arbitrators of state law, but and I don't believe this was raised with the DRC, to my knowledge.

So this is kind of outside the what was really this, so we it wasn't really considered by the DRC because I don't think it was raised in the record to them as is whether an issue or not.

So let me ask you this quickly and get to council member Chin very quickly, then it wasn't to your recollection, it wasn't raised to the DRC, but could it have been raised with was this is this something that they could have considered as they were deliberating?

My expectation would have been if that if the applicant was relying on that.

Um that would that should have been raised with the staff when the the application was processed.

Um, and then we would I don't know the answer to that, but you know, we would address that at that time and make that determination.

So to the extent the applicant may have raised it, um, the determination by the zoning department was that the state's statute, this was consistent with the state statute that there be a use permit consideration for the second story.

Okay.

That's it.

Thank you.

Council Chin.

Thank you, Mayor.

So I just wanted to clarify the issue is the use permit, which you would need, one would need whether it's for the ADU or your single family home.

It's not extraneous in any way.

I I think that's correct, and that's what I've heard from the community development department.

I'm giving them an opportunity to tell me I'm wrong, but they had the if if the any structure in this um area that is subject in this area that's subject to that same single family zoning, if they wanted to add, say, let's gonna put a second uh master bedroom on the top of my main structure, a use permit would have been required, even if even though if they were with the over within the overall height of the zoning district, they still would have had to have the use permit because of the second story requirement that's been adopted into at no time during that entire hearing did the zoning administrator jump up and down and say, I disagree with the city attorney.

There's four pieces of legal advice from people that the city pays to regularly give them advice and apparently trust because they're still employed in those positions.

Okay, who said you can have you can require a use permit for a second story.

Now let's fast forward to June 6th.

Um thank you.

Um the zoning administrator issues an official written interpretation that says that the city can't require a use permit for height.

Remember, there are two use permits in play here height and second story.

So he's taken out the height issue, but he has said your appeal can go forward.

You are still able to proceed with your appeal of the second story component of the ADU build.

If the zoning administrator thought that the city couldn't require a use permit for the second story, he would have stopped it right then and there and not bothered to waste the city council and the mayor's time with the hearing.

We have the hearing.

There's an executive session in part for quote legal advice regarding appeal process related to development review commission's decision to approve a use permit to allow a detached two-story accessory dwelling unit.

Nobody came racing in after the executive session and said at the beginning of the regular session, we can't address that because we got legal advice that says that we can't require a use permit.

So that hearing went forward.

Now I don't have clips of this, but during the hearing, the city attorney gets asked again about his previous opinions from that earlier hearing that the city can require a use permit for a second story.

He doesn't change his mind.

He gives them the same advice, and the zoning administrator doesn't jump up and say, Oh, he's wrong.

Now, at the September 18th hearing, it becomes patently obvious that the council and the mayor don't like that advice.

They want to hear something else because the mayor says he wants a definitive opinion.

I'm not quite sure what wasn't definitive from the previous six statements from again people that the council and the mayor repeatedly turn to for legal advice.

Now, I'm sure the lawyers in this group have been in the position where your client doesn't like the legal advice, but that doesn't make the legal advice wrong.

Okay.

So then they duck out for another executive session.

They come back.

Two to deny, five against.

But before the council can vote on the motion to grant the appeal, which likely would have passed.

There is a motion to continue for drum roll please, legal advice about whether the city can require a use permit for a second story on an ADU.

Huh?

They've now heard this at least seven times.

It is obvious that the council and the mayor don't like that legal advice.

It doesn't make it wrong.

But I will tell you, this is the problem that they were looking at.

This is what makes them uncomfortable about having to take a position on the ADU.

But the natives are restless.

That's 302 voters, make that 303, including me, who the council and the mayor risk alienating with an election just six months away.

So enter what I call the hired gun, the special zoning administrator.

So why did the city need to appoint a special zoning administrator?

Well, the community development director says it's because Mr.

Donohoe has a background in municipal planning, and he was a superior court commissioner and judge.

Those are not special qualifications that the city attorney and the actual zoning administrator don't have.

Mr.

Donahoe retired 14 years ago.

He was not sitting on the bench when the ADU law was passed.

He wasn't involved in developing the ADU ordinances for the city of Tempe.

His legal work since 2011, at least as far as his resume shows, hasn't involved municipal law generally or zoning specifically.

He sat on the Scottsdale Board of Adjustment with limited functions and jurisdiction.

The actual zoning administrator is more than familiar with municipal planning.

He does it on a full-time basis.

It's his job.

The city attorney, hopefully, is well versed in the city ordinances and the interplay between city ordinances and state law.

Again, that's his job.

And both the city attorney and the actual zoning administrator were involved in drafting tempice ordinances to make sure that they were consistent with the state ADU statute.

So the why do we need a special zoning administrator is fairly clear.

The city attorney and the actual zoning administrator apparently had too much integrity to change their opinions and advice.

So voila.

We get a special zoning administrator.

Let's look at his opinion.

It is, in a word, tortured at best.

It is not true that the legislature removed almost all city imposed restrictions or barriers that normally apply to single family homes.

The legislature prohibited cities from imposing certain specific restrictions on ADUs.

It's not as broad as you just can't do anything to an ADU that you can't do to a single family home.

Now you are sitting in a quasi-judicial capacity at this point.

So some of these precepts apply to you.

An important one is the Arizona Supreme Court has told us for almost a century to look at the plain language of the statute first.

Industrial Commission versus Price.

Quote, when the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there's no occasion for resorting to the rules of statutory interpretation and construction.

The statute is to be given its plain and obvious meaning.

So let's look at the statute.

Up here?

Okay, let's take it out.

That's going to have to do with my technological skills here.

Here's what the city can't do.

You can't prevent an ADU from being used as a long-term rental.

You can't require that the occupants of the main home and the occupants of the ADU have some kind of relationship.

You can't require additional parking.

You can't require that the ADU match the single family home on the lot with respect to three things only exterior design, roof pitch, and finishing materials.

Number five is really important here.

You can't set restrictions for accessory dwelling units that are more restrictive for five specific things, not generally, but five things.

Height setbacks, lot size, lot coverage, and building frontage.

You can't require rear or side setbacks of more than five feet or require certain improvements to public streets.

That language is plain and unambiguous and has an obvious meaning.

Let's go back to paragraph five.

What that means is that the city can have the same restrictions for the height of an ADU as the city has for single family dwellings in the same zoning area.

Now, the way that the city attorney and the actual zoning administrator have interpreted this that a second story is a subspecies of height.

Because the city requires a use permit for a second story on a single family home, it can also require a use permit for a second story on an ADU in the same zoning area.

This is what the city attorney and the zoning administrator have been saying for the past seven months.

Now, interestingly, if the city attorney and the actual zoning administrator are wrong, if a second story is something different than a type of height restriction, then the city can require a use permit for a second story on an ADU, even if it doesn't require a use permit for a second story on a single family residence.

Remember, paragraph five says here's what you can't be more restrictive about.

Second story is not part of that.

The city can in fact be more restrictive with the second story of an ADU.

Looking at the plain language there.

Either way you slice it, whether it's a subspecies of height or whether it's something else, the city attorney and the zoning administrator are correct.

You can require a use permit for a second story on an ADU.

So the zone, the special zoning administrator is also just wrong about what happens when some of the approval criteria are inconsistent with the state ADU law.

So he is correct that some of the criteria in 3420C conflict with state law.

Okay.

You can't require that the second story be compatible with the architecture of the residents.

That's in 948118 B4.

But interestingly, the city could require the ADU be compatible with the architecture of the surrounding neighborhood because the specific language of 9481.18B4 says the single family home on the same lot as the ADU.

And you can't write require additional parking.

Now the special zoning administrator has ignored entirely the literally unlimited approval criteria in zoning code section 6308E.

9481.18B does not prohibit the city from restricting a particular ADU from creating more traffic, creating various nuisances, contributing to the deterioration of the neighborhood, downgrading property values, any of the other things that are here.

Remember, we looked at that statute.

It does not say the city cannot restrict an ADU from deteriorating the neighborhood.

Courts won't toss out an entire ordinance just because part of it doesn't pass muster.

They just snip it out.

Okay.

So the appeal of the use permit is not about whether the owner can build an ADU.

The state statute is very clear, you can build an ADU as of right.

Okay.

This is about a particular feature of an ADU in a particular geographic area that the city general plan provides certain protections for.

That falls under the exception that the legislature carved out in 9481.18H.

We're talking about the cultural resource area and the Alameda Character Area Plan.

Both of those were created with the express intent of maintaining the integrity of the architectural character of certain specific geographic areas.

The CRA is in the zoning section of the general plan.

The ADU at issue is in the CRA.

The question here is whether the plan for the ADU with the second story conforms to the requirements of the CRA.

Now the Special Zoning Administrator's analysis is tinged, sadly, with political overtones.

The Arizona Supreme Court tells us, as I read you, that you don't even get to an analysis of legislative intent unless a statute is vague or ambiguous.

The plain language of that state ADU statute could not be more clear and more unambiguous.

This means that the analysis of legislative intent is wholly gratuitous.

The reference to NIMBY in the penultimate paragraph is a political statement.

It is not a legal term, it has no place in a legal analysis.

It reflects a bias on the part of the special zoning administrator.

It is inappropriate to be included in this analysis, and it is inappropriate for you to consider it.

But since the zoning administrator brought it up, let's talk about it.

If this is NIMBYism, it's NIMBYism that was created and condoned by the City of Tempe as an official city policy.

The city created the cultural resource area with the stated intent of protecting the unique character of certain neighborhoods.

The city put the concept of the CRA and its designation of specific neighborhoods, including the neighborhood where this ADU is, into the general plan.

That made it city policy to protect certain specified neighborhoods.

All we are doing is asking that the city enforce its own policies and actually protect the neighborhoods it said it would protect.

So here we are.

They can and will say, well, you know, that board of adjustment, they decided that we can't have you know a use permit and we can't have these hearings.

And it won't be the special zoning administrator who gets blame.

It will be this board because you will have adopted the special zoning administrator's opinion.

Please don't be that scapegoat.

Grant this appeal, let the opinions and advice of those who know the city ordinances best and send this back to the city council for them to do their job hard as it may be and make a decision about this particular ADU.

Questions.

I didn't want to interrupt because you were doing you were on a good flow.

But I did want to ask some more of your thoughts on the three special the three conditions in the zoning code if we accept that the city can require a use permit for two-story ADUs or any two-story structures once we have the use permit in place.

Because the statute just says it can't require additional parking, but if that's just a consideration, I don't see why that's a problem.

I know maybe you were like trying to well, so you know, kind of sussing this out with you.

For those things that are in the ADU statute that say here's what you can't do.

I think you can't do it by ordinance or condition.

So I think we are stuck with the legislature for better or worse, saying you can put up a you know five-bedroom ADU that will hold 15 people and you can't require 15 additional parking spots.

I think the cities of over 75,000 people are just plain stuck with that.

So, no, I don't think you can impose that particular condition, whether you do it as a condition on the permit, or you do it as part of the ordinance.

Does that make sense?

Yes.

Um I was glad that you pointed out the the interesting distinction with the architecture of the residence and the architecture of the neighborhood.

I don't know if that's cutting the interpretation too fine, but hopefully that's somebody else's problem.

Well, and I'm sure, chairperson, you know, you are intimately familiar with all of these um opinions regarding statutory construction.

The legislature is, and I can't remember the exact language, presumed to mean what it says and say what it means.

So if the legislature in its infinite wisdom decided that the city cannot risk cannot make an ADU look like the main dwelling, it meant that exactly, and it didn't mean that you couldn't you couldn't require that it look like the rest of the neighborhood.

But you're right, that is the legislature's problem to fix that if they meant something broader.

Any other questions for the applicant?

Yes.

Hi, I just want to clarify.

So 3-420.a is talking about a single family residence.

So to add expand or rebuild for a second story, you need a use permit.

My question is if it's a brand new building, so like let's say you're building a new single phone family home on a lot.

Do you still need that use permit if you decide that that's what you want to do?

Or is it or is it all or is it only for if you're going to add to one that's already an existing building?

Now I gotta go read the statute.

Would you like Steph to answer that question from the code?

Uh if she can't answer it, then I don't they are probably better equipped than me.

Yeah, it would seem based on the plain language of the statute that the use permit is to add, expand or rebuild for a second story.

I would argue that this is adding a second story to a structure.

Well, and particularly if it's uh this permit is for a detached, but if it's attached, that's even I think clearer under the code idea.

But no, but there's the special opinion address both, both detached and detached.

I mean, if it was attached, it clearly would fall in this.

My my question is specifically about if it's a detached accessory building, and it's a new build, does this section apply?

And I'll ask staff when they come up.

Any other questions?

All right, thank you very much.

Thank you.

We'll now hear from uh our senior planner, Robert.

It is a test.

Uh welcome out.

Thank you.

All right, Chair Morrow, members of the board, my name is Robert Mansolillo.

I'm the senior planner with planning division of community development.

And as we've heard uh already, some of the dates, the key dates.

I'm also gonna be going through some of the key dates.

Once I'm done with that, I will turn it over to Judge Donahoe to give his explanation of his opinion.

So when I was looking through this today, I realized I should have added two more dates.

The first being May 21st, 2024, so about a year before this, when the state legislature adopted the new state law for ADUs.

It required uh cities over 75,000 to adopt before the end of 2024 new code language to incorporate ADUs.

And Tempe did that.

Uh City Council adopted that in November 21st, 2024.

So within that time, before the turn of the new year, uh new code language was adopted.

So starting here, this is the original Harvey residence ADU case that was really the start of this whole process.

May 13th, DRC approved two use permits for the two-story ADU, one for height over 15 feet, and the second for the two-story build.

On May 22nd, Miss Sinclair appealed that decision, and that was brought here to the Board of Adjustments.

Before that, on June 6th, the zoning administrator issued a zoning opinion that stated that the 15-foot height regulation does not apply to ADUs, only to detached accessory buildings, which would be a shed or a detached garage, not to ADUs.

And that was issued to clarify the recently adopted code language from the state mandated implementation.

So Miss Sinclair filed the appeal of that zoning administrator's opinion on June 17th.

July 23rd, that was brought here to the Board of Adjustments, and that appeal was denied.

So as a result, height is no longer, no longer requires a use permit for heights over 15 feet.

Can I stop you right there and ask a question?

Because I remember that meeting.

If I wanted to build a two-story house, not an ADU, but a two-story house in this zoning code over 30 feet.

Can I do that with a use permit?

Chair Morrow, I do not believe we can exceed the height limitations of the zoning code, which in R16 is 30 feet.

However, we do have the use permit standard application process, which allows a deviation of up to 10.

I think it's 10%.

So it would allow 33 feet.

Okay, so I I could build a 33-foot house.

So could I build a 33-foot ADU with a use permit?

I I am unclear if the use permit standard applies to ADUs.

The use permit standard is applied to the zoning district.

So is any anything I want to build in the zoning district?

30 feet plus 10.

As we've been applying the use permit standard interpretation for any building that's on a single family lot.

Yeah.

And we don't have an official opinion on that, but the vibe I'm getting is that I could have a 33-foot ADU with a use permit.

But I'd have to go through a use permit process that I'm sure has the various steps.

Yes, the use permit is the use permit standard is the one that allows for the deviation in the in the regulation of setback height, things like that.

All right, sorry for interrupting.

Let's see.

Okay, so on July 23rd, Board of Adjustments denied the appeal of the zoning administrator's opinion.

So on September 18th, uh Tempe City Council directed staff to prepare a formal zoning administrator's opinion regarding the legality of requiring the use permit for the two-story ADU.

This went back to as Miss Sinclair was was stating, um, they were looking for further clarification on whether that could be required for the two-story ADU.

And this was actually the second case.

The video clips that were being played was from the first ADU two-story ADU case on College Avenue.

City Council continued that for further clarification, and it was scheduled, that was also in May, May 1st, 2025.

It was scheduled for a second city council, but the applicant decided to change their plans.

So it it never came back to city council.

So when it appeared here, they were still unclear on the two-story.

So that's when they directed staff to prepare this second zoning administrator's opinion to clarify the two-story.

And that's when uh the community development director designated Judge Donaho as the special zoning administrator to render that interpretation.

And on October 3rd, Mr.

Donahoe did issue that zoning administrator's opinion stating that the city does not have the legal authority to require the use permit for a two-story ADU and that the language of the use permit approval criteria for the two story for the second story conflicts with the ADU state statute.

And on October 20th, Miss and Clair filed the appeal of that opinion, and we are here now hearing this.

And now I will turn it over to Judge Donohoe for his um for his expansion on the interpretation.

I just want to ask you one question.

I want to ask the question I asked Don.

Um if it's a brand new single family home, would they need a use permit to build a two-story?

Yes, uh board member foy, it's a little complicated.

So if there is an existing home, single family home, and it's torn down to build a two-story home, then yes, they wouldn't need a use permit.

But if it wasn't, it was just an empty lot.

I know that doesn't exist here.

But if if in theory, you know, in fantasy land there was an empty lot and I went and bought it and decided I wanted to put a two-story home on this empty lot, there was no building there before.

Would I need it that use permit?

If it had never been built on before, you would not need a use permit for the two story.

That's interesting.

Do I remember correctly that is that change in the use permit from 2022?

I know there was like some amendments to the second story use permit provision of the zoning code.

Chair Morrow, I don't believe that changed in 2022.

I believe that's been part of code for board member Marmor or uh members of the board of adjustment.

Yes, there was some clarifying amendments that we brought forward to to that section that helped clarify how the city was interpreting these sections because there was some information that might not be too clear in there.

So we provided some some clarity in those updates based on the uh original adoption of that regulation, which occurred back in uh February of 1987.

Okay, sounds good.

Thanks, guys.

What does that mean?

Because there's no more law, so you need to regulate new bill.

Chair Morrow, Vice Chair Boy, um members of the board.

Good evening.

My name is Gary Donahoe, and um I'm here to talk to you about ADUs and youth permits.

Um which one?

Right hand side.

Um I was um asked to give an opinion uh based on two questions, one from the city council, one from the community development director.

And let me assure you there was no um or nothing sinister about having me appointed as a special administrator or special zoning administrator.

Um nor was nor is there any hit hidden agenda.

The only thing that I received from the city is the memo that's in your packet uh giving me the background of one particular case and the use permit, how long that's been um in place.

Other than that, I've remained independent, and from what I understand, the reason I was retained to do this is that they didn't want any appearance of impropriety or implied bias or um anything like that.

They wanted somebody independent who had not been involved with either the state statute or um the city ordinance.

So that's that's why I'm here.

Um I was starting out as a um a lawyer, one of my mentors told me that uh in motions and oral arguments.

Um you should tell whoever you're speaking to what you're gonna what you're gonna tell them, then tell them, then tell them what you told them.

So that's what I'm gonna do here.

Um I'm gonna go over my qualifications for a couple reasons.

Um in the event of appeal, an appeal, my credentials need to be in the record because this would be a record appeal.

Um my qualifications have been questioned here, which I didn't think would happen, but um before a uh witness before a tribunal like this can render what is essentially an expert witness.

He or she has to put their qualifications before the court and the jury so that they can assess uh one's credibility and ability to make that opinion.

So that's why I'm gonna do it.

I'm also going to talk about the standard of review, and that hasn't been mentioned because I'm not quite sure the well, I'm pretty sure that the standard of review does not favor the appellant.

And then I'm going to review the interpretation that I did, uh, compare the state statute with the Tempe ordinance, and I'll further address some of the comments that have been made here tonight.

On the planning side, I have a master's degree in urban planning from the University of Arizona.

Following graduation, I did a six-month internship with the Tucson City of Tucson Planning Department.

After that, I uh was hired as an associate planner with the Northern Arizona Council of Governments, NACOG.

I left there as the planning director.

Um was interesting about that job is that it covers the four four north NACOG covers the four northern counties, and within those counties are small municipalities, many or most of whom cannot afford or could not afford uh full-time planner.

So those municipalities contracted with the COG, I think they pay us like $500 a month for planning services.

So that was me pretty much.

Um I traveled all over Northern Arizona.

I had Williams Winslow Holbrook Page, and I did some work for uh Cottonwood Clarkdale.

And for most of those cities, I wrote their zoning ordinances.

I wrote their general plans.

Um I did a couple of uh capital improvement um project plans too.

So I have some experience with zoning ordinances.

Uh during law school, during my um my two years last two years, I had a part-time clerkship with the Pima County Attorney's Office.

And I was primarily involved with the uh county attorney who advised the Board of Supervisors on planning and zoning matters.

So I was involved in that.

Um I served three terms, nine years on the City of Scottsdale Board of Adjustment.

Uh my last term ended last May, and during two of those terms for a portion of those two terms, I was the chair of that uh Board of Adjustment.

On the legal side, I also have a law degree from the University of Arizona.

I did a clerkship with the Arizona Attorney's Office, and no offense to Mr.

Morrow.

I did not like the work.

Uh so I was only there about four or five months, and this was in the period after you take the bar exam before you get the bar results.

So I was basically a law clerk.

Uh, but what I was doing was not my cup of tea.

I had been assigned to the um department of corrections of all things, and I was reviewing a lot of contracts and rules and regulations, which I didn't like to do.

Um I went with a law firm at the time it was about I think I was the 16th attorney.

It was called Robinson Green.

When I left, there were about 35 attorneys.

Um, and during those 10 years, I uh principally uh did civil litigation.

Uh I was then selected as a court commissioner, Judge Pro Tem, and then later appointed by Judge Hall as a judge of the Superior Court.

Uh the court, uh you may not know or you may, it's uh departmentalized, and every two or three years you rotate uh assignments.

So I first did civil, then I did probate mental health.

I did uh fortunately a small stint, short stint on family court.

That's the worst assignment I think you could get.

I spent about 16 16 months on family court.

I was asked to go back to criminal to be a special assignment criminal judge, handling complex criminal cases, including capital cases.

I was then asked to be the presiding judge of the criminal department, um, which I did.

Um, and then when I rotated off of that, um I took over a civil combined civil probate calendar.

Um the probate cases were all contested, and I also served as the associate presiding judge of the probate mental health calendar.

Let's talk about the standard of review, and I think it's important because it dictates the lens that you need to look through in uh deciding whether to uh endorse or or not my interpretation.

And it's let me say up front if I say anything that uh is contrary or different from what your attorney has said told you about the standard review.

Uh just ignore what I've told you and listen to your attorney.

Um this is not a de novo review, and that's I believe what the appellant is asking you to do.

A de novo review is basically what I did.

You take the take the information that you have, the ordinance provisions, uh any other the state statute, any other materials that you think are relevant, and you reach your own opinion.

That's what not what you're doing here today.

Uh you're not supposed to substitute your judgment, and the flip side of that is that you are to give deference to the administrative decision.

The standard of review is whether the my opinion was arbitrary, capricious, or an abuse of discretion.

Um I'm just gonna summarize what the U.S.

Supreme Court said about that standard.

Uh, this is a well-accepted standard with all appellate courts because that's a standard they've the courts use in reviewing administrative decisions.

You're gonna ask yourself or need to ask yourself uh a series of questions.

Uh, first question is uh did the zoning administrator conduct an adequate investigation about the facts relevant to the issue.

Ask yourself Did I consider all the facts and circumstances?

Did I act within the legal power given to uh myself as the special zoning administrator?

Did I follow proper procedure?

Is there credible evidence to support the decision?

And is the decision logically related to the relevant facts?

If you answer yes to all of those questions, then the interpretation was not arbitrary, capricious, or an abuse of discretion.

You've heard about this uh state ADU statute uh in other hearings before you, and I'm just gonna go over it quickly.

As mentioned, it applies to the city of Tempe.

And importantly, it says that the these municipalities must allow at least one detached and one attached ADU as a permitted use, and then it defines permitted use, and um the appellant has ignored the definition or wants you to read out the definition, or uh don't uh listen to it, but it clearly stays states in unequivocal language that the approval process cannot involve a public hearing, a conditional use permit, a variance, special permit, or special exception, which would include uh compatibility reviews.

You can't, as part of the review process, require additional parking.

He can't require that the ADU match the exterior design or roof pitch pitch or finishing materials of the main dwelling unit.

And you cannot set a different height limit than that allowed in the single family zone.

And from from what you've heard tonight, um I could build an ADU detached, 30 feet in height as a matter of right under this state law.

Uh this is my hunch about the height limit.

First of all, whoever wrote this uh statute, I think, knew something about planning law and it dealt with municipal uh zoning ordinances.

They didn't want ADUs treated as accessory buildings which have different height limitations.

They can be anywhere from eight feet to 15 feet.

They didn't want them treated like that, so they said you got to go up to the same height as single family dwelling units.

The maximum size is uh 1,000 square feet or 75% of the gross floor area, unless you have a lot uh larger than an acre.

So if your home is about 1350 square feet, um you can then build up to a 1,000 square foot uh ADU.

If you look at the statute, it sets the maximum setbacks from the side yard and the rear yard of five feet, which indicates to me that somebody was thinking most of these things are going people's backyards.

I looked at my backyard and I was um I figured I don't think I can get an ADU in my backyard with a thousand foot footprint.

I can probably get a 600, 700 foot square foot footprint.

So in order to get my thousand feet of livable area, I'd have to go up and not out.

And I think that's my hunch, is that's why they went to the 30-foot um uh limit.

Look a little bit at the TEMPE uh zoning ordinance.

It recognizes that if any portion of that ordinance uh conflicts with the state statute, the state statute governs, and that's basic law, it's called preemption.

In this case, the legislature has preempted the field here about ADUs.

Um to answer vice chair uh foy's question.

I assume that Tempe requires a use permit to construct any two-story dwelling unit, and my reasoning is set forth in the on page four of my opinion.

Um but I just assume that uh whether you could you have to do a convoluted reading of the ordinance to get there.

I didn't care.

I just said, okay, let's assume that.

But the definition of a use permit is very important.

It says that a use permit means a permit granted to a property owner or lessee to conduct a use not otherwise permitted.

Well, that doesn't apply because ADUs are permitted uses under the state law.

The second is or the use of alternative development standards following a compatibility review.

That would be an special exception, plus what are you going to look at in a compatibility review?

You can't look at the use, you can't look at the height, you can't look at the architectural finishes or design.

You can't look at the parking.

What else you can look at?

They've this legislature has taken almost all discretionary uh subjective criteria out of the out of the city's control.

But anyway, this definition doesn't even apply to eight ADUs because they're both contrary to the state ADU statute.

Also, as um Miss Sinclair mentioned, um two of the standards conflict with the uh state law, and that's about it has to be compatible with the architecture of the main residence, and you can require sufficient parking.

You can't do either one of those.

Um getting an eight uh use permit requires a public hearing before the development review committee.

It clearly says that you can't have a process that involves a public hearing.

If there's an appeal of that decision from the DRC, that goes to the city council, and there's another public hearing.

Um it's my opinion that the state legislature wants to cut all of that out, cut through all of the red tape, and get to the get to allowing these ADUs to be built.

And that's why I think you need to look at the legislative attent.

You need to read the statute as a whole.

And many of you may have read statutes before, and sometimes it's really hard to figure them out.

You don't really know what they're driving at.

I read this one, and the legislative intent uh fairly jumps off the page and slaps you in the face.

It says we're gonna control ADUs, we're gonna take all of the red tape out of this, and we're not gonna allow cities to use any subjective standard to deny the construction of an ADU.

The other thing that the appellant has ignored is that you have to give internal consistency to the statute.

You can't read the statute so that any part is rendered void or dispare baggage.

You have to uh harmonize it.

Uh this I think is very clear from the from the legislative instant intent.

They want to encourage his ADUs.

They the I they want to address the um affordable housing issue.

I don't know if this is gonna help or not, but that's what they think.

And then they again, I think they want to eliminate all these subjective standards that could be used to deny the construction.

Uh you do have the June 6, 200 2025 interpretation by the zoning administrator, and and the appellate has um mentioned that and uh your our city attorney has um talked about that in in these video clips.

I respectfully disagree with both opinions or that opinion.

First of all, if you look at it, and this is no offense, but there is really no rationale set out as to why a use permit can be used for a two-story ADU.

Uh there's no rationale as to why you just read the permitted use definition out of the statute.

You're reading out the prohibitions against the public hearing, you're reading out the prohibition against architectural compatibility, and you're also reading out the prohibition against additional parking.

So uh again, with all due due respect, I disagree with uh that interpretation.

Uh so um I'm gonna tell you what I've just told you.

Um as I said, you look need to look at the statute as a whole, uh, harmonize it, give effect to all of the terms in that statute, and I think the statute is crystal clear about why you can't use a use permit.

Um plus, as I've said, I think Tempe's criteria and even the definition of use permit uh violates the statute.

Uh again, a use permit, an appeal does involve a public hearing, which is not allowed, and the statute doesn't say anything about one or two-story ADUs.

I think allowing a 30-foot ADU this the legislature contemplated there would probably be more than one level of livable area in these ADUs.

Um that's what the appellant wants you to read into this statute that there's some kind of exception for two-story ADUs, and that does not appear.

Um I want you to take a look at this again, apply the standard of review, and if you have any questions, I'm happy to answer them.

Do we have any questions?

You no.

All right, I'm not hearing it at this time, but all right, thank you.

It's kind of a uh unique to be on the other side of this podium.

I haven't done this uh uh since I was a lawyer arguing arguing cases before.

I know it's just uh I had to put put my lawyer hat back on pretty much.

Thank you.

I appreciate the attention.

Uh all right, now we will do our call to the public.

I have two citizens request forms so far.

Uh first we'll hear from Cameron Varbo.

You can tell me how I mispronounced that.

And you're it's actually a Y.

Oh yeah.

Um, good evening.

It's my first time ever doing something like this.

Um, you know, I I'm on the opposition to to this and going back to the legal opinion.

You know, all we're fighting for is the actual uh appeal process that was approved by the actual people that work, you know, for the city.

I think for me, it's like I've worked hard, I've saved my pennies, and I bought my my first beautiful home here in Tempe.

And the reason I bought that home is because Broadmore is a really special neighborhood.

They're all single stories.

Um that was something we looked for.

We can be in our backyard and enjoy our time and enjoy our house.

And uh I live right down the street from both of you know the one that was referenced in the videos from uh the original ADU process and and uh this one.

I live literally like a mile each direction from both of them, and uh there's not another single two-story house or or anything like that in the neighborhood.

And uh I really want to keep it that way.

Our neighborhood's really nice.

People, kids play in the street, and it's a great neighborhood community, and I want to just continue to have you know everything I look forward to in buying this beautiful home.

So uh I hope as we go back to the beginning here, the state's lawyers or the original lawyers and and developers have already said, hey, this is a no-go.

I don't know why, you know, the the people were brought in to bring in a hired gun.

I'm one of those 302 signatures.

Um, and I just want to make sure that we uphold the original decision.

Uh, you know, that was that was originally put forth and not you know just decide to punt to some you know hired gun, essentially.

So I just want to say thanks for your time.

I don't know how much time I have left or anything, but um I hope we go back to the original opposition for for the appeal, and thank you so much.

Well, thank you.

Uh next we'll hear from uh Jake Sarrett.

That's a C, right?

Yeah, uh Jake Sarrett.

Going once, going twice.

Okay.

We can hear from uh Gina Lynn Granillo.

You can tell me how I mispronounced that it's Jana Lynn Granillo.

The L's are like a Y.

Ah, thank you.

This is a recurring theme if you haven't noticed.

So very briefly, I'm a neighborhood advocate, and I have been at the state legislature last session, and I plan to be there again this session, and my comments are very simple to make any assumption about what the intent is for the legislature as a whole, I think is a misstatement because the individual legislators all have different opinions with their different agendas, and they rarely agree on um many things.

So I just I just compelled to say that.

Thank you very much.

Well, thank you.

Uh okay, what am I forgetting, Jennifer?

Anything else?

Uh we can hear from uh Miss Sinclair again if you want to offer any uh short rebuttal before we begin further deliberations.

Thank you, Mr.

Donahoe told you to listen to your attorney.

That's exactly what I'm telling you to do, too.

Listen to the city attorney and the actual zoning administrator who say that yes, the city can require a use permit for a second story, and especially in this instance, okay?

The city attorney gave a clear rationale all five or six times that he spoke to the council and the mayor.

He said, if you can require a use permit for a second story on a single family home, you can also do so for the ADU.

Now, the specific ADU that we are talking about.

You do not need a use permit if you are building a new house on an empty lot.

But if you are adding to a house, or you are building something on a lot where a house used to be, it catches on fire, they scrape it for whatever reason, then you need a use permit.

There is a house on this lot already.

It would need a use permit to add a second story.

If that thing burned and they scraped it, or they just decided they hated the house and wanted to put something new there and scraped it, they would need a use permit.

Airgo, the ADU on this lot, would require a use permit.

Now we cannot be guessing what the legislature intended.

That is not what statutory interpretation is about.

It's not relying on hunches about what you think the legislature thought they were doing or wanted to do.

It's about what they did.

What they did is clear and unambiguous.

And yes, the state statute prevails, but the state is not preempting the field here.

This is not a situation like I don't want to make it controversial, but like immigration, for example, where the feds clearly have preempted the field.

They are the only ones who can act there.

This is not that situation.

This is a situation where the state has said, we're not gonna, we are gonna limit what you can limit.

Okay, they're telling the city you can only put certain you here's what you can't restrict.

Everything else is open for you.

Okay, and we're not saying any part of either the state statute or the city ordinance is surplusage.

The surplusage argument doesn't even apply here.

Um Mr.

Donahoe said there's no mention of prohibiting a second story on an ADU.

Exactly.

That is one of the areas that the legislature has left open.

There is nothing in that statute that says that the city cannot prohibit or limit a second story on an ADU.

It talks about height.

To the extent that the city attorney is right, and height is a and second story is a subset of height, then yes, you can require a use permit under the circumstances that we discussed.

It's a rebuild, it's on a lot where there's a rebuild, it's on a lot where there's an existing house where you would require a use permit.

And if it's not part of height, the city can do whatever it wants with require with restricting a second story.

So, yes, please listen to the people that the city council regularly looks to it for advice, and who all of the city departments look to for advice, and who you folks look to for advice, and go with that opinion, go with that advice that they have been giving the city council for seven months.

Yes, the city can require a use permit for a second story.

Thank you.

Thank you.

Oh, do you have a question?

We might have a question for you.

I do have a question.

Just done yet.

Just to clarify.

So my understanding is that basically, since there's a house there already, a single-family home, even if the ADU is, you know, in the backyard is a separate building, it still should be considered kind of part of the original home in applying that statute.

Kind of.

Kind of.

Okay.

Okay, so I I think what I'm trying to say, and probably didn't do a very good job is on this particular lot, okay.

If they wanted to add a second story, or if they wanted to scrape it and just build something new for whatever reason, they would require a use permit.

Okay.

In this instance, in particular, because you could require a use permit for that particular single family home, you can require the use permit for the ADU on that lot.

Is that did I make sense?

You did.

Okay.

Now, would you agree with me that if if I had an undeveloped lot and I wanted to put a two-story house, which I can do, and then I want to put a two-story ADU, I wouldn't need a use permit because it's a new bill.

There's no existing house on the structure.

That's the problem with yes, and that's the problem with having this broad opinion that says you can or you cannot.

It really is kind of situational because of the way that the Tempe ordinances are written.

Because the Tempe ordinances prov require the use permit for the rebuild.

So we're assuming you've got a lot where there's never been a house.

Very different than you're adding an ADU on a lot where there's a house that would require a use permit.

And I think this is why, like I said, you can't have this like blanket prohibition against use permits.

Thank you.

Any other questions?

All right.

Thank you.

Um before we begin deliberations, I have a question for do we give judge if he wants to?

Oh, sure.

You've probably heard this from lawyers before, but I'm gonna be brief.

Um regarding uh the appellants argument, I've addressed that on page six, uh, beginning with this second full paragraph.

Uh the only way to harmonize that sentence that's relied on that says uh the city can't may not set restrictions for advice accessory dwelling units that are more restrictive than those of single family dwellings within the same zoning area with regard to height.

The only way you can harmonize that with the preclusion of a use permit, which it clearly says for permitted use, is to read it, give it its plain meeting.

You can't restrict it the height of it.

It doesn't say you can require a use permit.

Uh if I can build a 30-foot house or an ADU rather, which the legislature contemplated by raising the height limit.

What am I gonna do with 30 feet?

It's gonna be unless I'm awfully tall.

That's gonna be a pretty high ceiling.

Again, I think if I build a 30-foot structure, it's contemplated that I'm gonna have more than one uh level of living area.

Um so again, um I ask you just to apply the standard of review, and um I just think there's uh way too many holes in the appellant's argument.

Thank you.

Thank you.

Um before we begin, I have a question for Mr.

Anderson, if he's willing to answer it.

I think you were expecting this.

I was fearing this.

Is that better?

Yeah.

Uh I will clarify, I'm glad to answer anything other than confidential legal advice, as you know I cannot share.

So at the outset, I'll ask you to disregard any inferences or assumptions that the Sinclair has invited you to try to make about executive session, as the chair probably knows that's confidential by law.

Um, so can't discuss that.

Uh not gonna ask you about that.

Uh, do you have an opinion though on what our standard of review is?

I have uh a challenge that it's not clearly defined.

I have um it is very clear uh when if this case or any other cases appealed from the Board of Adjustment to the Syria Superior Court, it's very clear that courts have spoken that it's a abuse of discretion, clear error type standard.

I looked at this uh and you'll see in the staff report um the state statute does refer to appeals of error alleged errors by the zoning administration.

So I think it's an erroneous standard of review.

So they don't well, they don't use the term clear error.

I think you can infer that from the uh case law that it is an erroneous standard of reviews.

So um wouldn't our interpretation well to to quote you the the courts or the arbiters of state law, wouldn't our interpretation of the zoning code slash state law, wouldn't that be de novo from the courts?

I mean, they don't really well from the legal aspect.

I I think and um the appellant at least has asserted if I heard it correctly that this is a pure legal question, despite despite all the other um extraneous stuff.

Um is the most part I think it is a pure legal question comparing, and I think the under the abuse of discretion standard, I I don't I think there's a distinction without a difference there, really.

If there's an error of law made, it's an abuse of discretion.

So uh if it is a pure legal question, then yeah, you're you're applying the erroneous standard abuse of discretion.

If you if you think the zoning and special zoning administrator made a erroneous legal interpretation, then you should act on it.

So well, thank you.

Uh, do we have any other questions?

Thank you, Chair.

Um, the term hired gun has been used several times in tonight's proceedings.

And my question is simple.

Was the special zoning administrator contracted and compensated uh to produce his opinion?

He is contracted.

Um he will be compensated.

He hasn't sent me uh sent us a bill yet, but um there is a compensation.

Um I disagree with the term hire gun, though.

Um board member Cagey, I I think uh the judge has established his credentials as he pointed out, he was asked to give his independent opinion.

Uh there's nothing in the record, and I can avow to this board that uh Judge Donahoe was not sought for his uh ability to give somebody what they wanted, but rather his credentials, which I was familiar with and uh recommended his retention for that reason.

Is you won't find a lot of people in the state that have a planning background as well as a law degree and a judicial background as well.

So thank you.

Any other questions?

Okay, thank you.

Thank you.

Um I think I'll I just want to start off with an observation that there were there have been some strong comments tonight, and and I really don't think there's been any um anything nefarious or improper in the way that this case um got here.

It's a tough issue.

Lots of people have very strong opinions about it.

Um and I think Judge Donahue was very qualified to give the opinion uh he offered us.

I'm just not sure I agree with it.

Um anybody have thoughts, want to open it up?

Anyone would yeah, I have lots of thoughts.

I don't know if they're very good or or articulate, so I'm I'm looking for some wisdom to my left or right.

So this would be a question for the city.

Um in the event that someone goes to apply for an ADU, do they have to go through the pre-op process and then essentially with this new ARS, they just go straight to permits afterwards?

Or is there any design review board or any body that gets to see and approve the plans before it's built?

Uh board member McCarthy, um, no, it would just go straight to building permit.

And if it was identified at the building permit stage that there was anything that would trigger a planning review, then we would see it.

But if it if it's just a straight across ADU, then it would just go to building permit.

Okay.

And to me that seems troublesome.

Uh knowing that my neighbor could build whatever in their yard.

And I know that doesn't necessarily fall in line with the ARS.

Uh so that like board member or uh chair member mentioned, it is kind of a complicated case here.

We're uh we're gonna have to think about a little bit.

Thank you.

Board member K, what are your thoughts?

Well, I'm I guess I'm just trying to distill this down a little bit for me uh to simplify it.

So on one hand, we're asked to um to either agree with the zoning administrator's opinion that a use permit is required for a second story ADU, or do we agree with the special zoning administrator's opinion that a use permit is not required for a second story ADU?

Is that am I looking at this in a very simplistic terms?

No, no, I I think that's right.

Okay, I just wanted to meet it really comes down to I think one of the things was was does the statute still allow us to regulate height and is second story part of height?

I mean, I think that's what it comes down to.

And I remember from our July meeting, and it is somewhere in our materials that Tempe is the only city that requires a use permit to build a second story addition um to their house.

I think that's what makes us special.

Um and why this might be may not be a big statewide issue, because if you're in the city of Phoenix uh and you want to build a two-story ADU, you can just build a two-story ADU up to the height limit.

Um, but if you want to build a second story to your house in Phoenix, you can just build a second story house.

Tempe has limited your ability to build taller houses, not through the height requirement, but through the second story requirement.

And part of my thought was was well, generally the statute, yes, does not want use permits and hearings and and all that for ADUs.

If you wanted to build a 33-foot ADU, you could, but you'd have to get a use permit.

So if you want to build a second-story ADU, you can, but you have to get a use permit.

He doesn't look very excited at that prospect, but I think they're both reasonable.

And I think that that's the it's they're both reasonable.

Umpe is unique, and and I think that's what gives me pause is you know, other areas this isn't an issue at all.

Um I honestly I'm like you, I can be persuaded either way.

I'm leaning towards one, but I'm not 100% sure right now.

Andrea, what are your thoughts?

The way that the state law is written, I the way I thought it seems to be written is that ADUs you do not need a use permit.

They're permitted as is.

So I feel like maybe a larger issue is that there is now a discrepancy between Tempe's city code versus what this law is stating, which is beyond the scope of what we're dealing with here tonight.

I just want to say that I'm not passing any kind of judgment or anything like that.

But I am saying that that seems to be the larger issue.

But my interpretation of this is that when constructing an ADU, you may not require a public hearing to be had to build one.

That's what's written.

And you know, state law traps, right?

If it's specific.

Well, but I think that's the problem.

And that was brought up.

It doesn't specifically say anything about use permit.

It says no, you know, it asked them you can't do anything more restrictive than what you're doing under that reside, you know, residence code, you know.

A zoning code, I think.

Yeah, but you'd need a hearing if you wanted to put a second story on the top of your house.

I did if it's an existing house.

And I guess that's where why you know I had that little question, and it is is this going to be treated as a completely new bill, or is it going to be treated as being built on a lot with already a dwelling on it, right?

So that's kind of where I'm at.

And that's how I look at it too.

The existing part.

I mean, we have an existing neighborhood, we have an existing structure, and the regulation would require it if you were putting on top of the existing structure.

So why not have that carry over to a um a new granted new ADU on an existing developed property?

One other thing that I wanted to bring up before we make our decision as a board.

Um, one of the reasons why ADUs are now permitted is because the state of Arizona did conduct a housing study back in I think 2022.

Their findings showed that Arizona has a critical lack of affordable housing options, which is why they have now permitted.

I mean, other cities in the past have already had similar laws, but now statewide it is legal for cities in all of Arizona and towns to have ADUs.

So I just want us to think carefully.

We are potentially setting a precedent for what that could mean in Tempe.

So that's all I'm going to say.

Thank you.

I mean, I definitely agree that we like we need ADUs.

I know we don't like them.

I mean I think the the DRC approved the permit on this ADU.

Um this is a you know, if we if we affirm the appellants appeal, it just goes back to the city council for her appeal of the use permit to build this this ADU.

But as it stands, this property owner is allowed to would be allowed to build um you know this 18 foot ADU, which it's I mean, I mean it's it's 18 feet three feet higher than the regular house.

I'm personally fine with it.

I'm sure the neighbors are not.

I'm sure the neighbors are not happy, but I'm fine with it.

Um so just because Tempe requires a permit for two story ADUs doesn't mean they won't get built.

Um which might might make some people uncomfortable, but it's just we've we've had another step.

And if you don't want a two-story ADU, you can just build.

Yeah, it's that's just not yeah, it's not it's not realistic in some neighborhoods to be able to do that.

That's the practical result of what this would be.

And you know, if the city council doesn't like requiring the permits, they can amend the zoning code.

That's not the punt it to them, but right.

But also if it's quiet about a specific issue, then we can legislate that.

Is the thousand square feet the minimum?

I thought I was under the impression that that was the maximum.

Yeah, it's the maximum.

Um I'm just not thinking you could build a very large ADU one story in most Tempe neighborhoods.

Um, you know, 300, 400 square feet is a pretty large for one person, right?

My brother and his wife lived in a 500 square foot ADU.

It's two bedrooms.

I don't know how they built it, but they did.

I lived in the 300 square foot apartment in college, so and I was fine.

So I don't know.

I don't know.

This is really this is a legal question, and um I uh I'm gonna have to say I I'm gonna find for the appellate.

I I think we should should find for the appellate and allow the appeal to go forward um back to the city council.

I I think this is a difficult question.

I think there needs to be more information and more I guess in information about what the intent of the legislature was and what the city wants to do about it.

But I I just I think that there's no clear answer within the state statute, and there seems to be a not a clear, but there seems to be somewhat of an answer in um that this is a these are houses on property and we're adding another dwelling, right?

And so that to me is existing, and it's already required to have that use permit.

And so I that's that's my position.

Um, you know.

Um thank you, Chair.

Um board member Hoy, help me clarify.

You are in favor of the appeal.

Yeah.

And I disagree with that.

I I believe that our uh our the zoning administrator for the city of Tempe, as well as the city attorney for the city of Tempe, provide us with the best advice and opinions that are available to us.

Notwithstanding uh outside uh uh opinions, I believe that uh Judge Donna, who is eminently qualified to render his opinion, but I would I am I am going to uh favor the original zoning administrator's opinion that a use permit is required for two stories.

I think that means you're on the same side.

I'm sorry, I meant to agree.

I agree.

Double negatives can get can get confusing.

I want to add one additional thing.

Um, because I think ultimately this is gonna end up in in front of a court, um, who won't really care what our opinions were.

But I also think it should end up there, and yeah, I I think we should sort of support the city's code as is, and if if it's incompatible with Arizona law, which I don't think it is, um, but if someone wants to argue that it is, I think they need to make that to a superior court judge and they need to tell us.

Um but uh but I think it's I I think it's very narrowly compatible.

I don't necessarily think the legislator was thinking about Tempe's weird two-story use permit when they pass it.

If the legislature wants to to amend this and say we can't have a permit to build a second story, they could do that.

Um but yeah, I'm I'm voting to um approve the appeal.

I second I think I'm not actually supposed to make motions.

So really I'm so sorry, really quick.

Can we get one more explanation about if we if you are approving the appeal?

Yeah, you say that's so what we're proposing doing.

We don't have a motion yet, but it would be to approve the appeal with a finding that the special zoning administrator's opinion uh was incorrectly determined and overturned the recent uh zoning administrators' opinion.

Um, and that was Judge Donahoe's opinion that the use permits are not permissible.

So we would be overturning that.

Okay.

That's all we would be doing.

Do you want to make it got um I'll make the motion then?

Uh I make a motion to approve the appeal of the special zoning administrator's opinion that a use permit is not required for the construction of a two-story detached ADU.

I second that motion.

Okay, I want to just clean it.

I want to clean it up.

So we're finding that the special zoning administrators' opinion was incorrectly determined.

That is correct.

Okay, we're gonna overturn the special zoning administrator's opinion.

I have a motion, I have a second.

We'll go by roll call.

Andrea, how do you vote?

Would you like me to come back to you?

I think I'm still okay.

If I say nay, I'm choosing to uphold the zoning administrators.

Yes.

Special.

Yes, you're starting with Judge Donahoe and not with the appellant Don Sinclair.

Thank you for the clarification.

Can I vote still?

Nay.

Okay.

Andrew votes nay.

Yes.

Yes.

I vote yes.

I vote yes.

Yes.

Yes.

All right.

By a vote of six to one.

We have approved the appeal and find that the special zoning administrators' opinion was incorrectly determined and overturn the zoning administrators' opinion.

Um but I will offer my thanks to Judge Donohoe for his opinion.

Um, and I do believe that it was very reasonable.

Even if we disagree.

Uh I have an agenda somewhere with the next item.

Uh chair staff updates and announcements.

Uh it's Ron's last meeting.

It's my last meeting is as chair.

We have a meeting in January.

I am if it's January 28th, I'm not gonna be here.

Can we elect her chair in her absence?

I can I can I can appear um virtually, actually.

So maybe that's a good idea.

Can I say a few words?

Absolutely.

Ron, would you like to say a few words?

Yes, thank you, Chair.

I appreciate it.

Uh, I just want to express my thanks to the entire staff of the city attempty from the uh audio staff to the city attorney's department office to the community development department.

Um, really well done.

Every application that has come before us was well written, thought out, uh, very professionally done, and answered all of our questions.

And I just uh I've I've appreciated the time that I've been able to serve on this board.

I I'm regret that I can only do two terms.

I would like to uh serve again.

Unfortunately, that's not possible.

Uh so I may look for another board or commission uh to to serve on, but again, my my heartfelt thanks to all of the city attempts staff that are sitting over here, including the code enforcement, which are not here tonight because they do a yeoman's job as well on the on the abatements that we hear.

So thank you again, and I appreciate the opportunity.

Thanks.

Do I have a motion to adjourn?

Motion to adjourn.

Do I have a second?

Second.

All those in favor say aye.

Aye.

Any opposed in the opinion of the chair, the eyes have it.

Thank you.

We are adjourned at 7 47 p.m.