MINUTES MOHAVE COUNTY BOARD OF ADJUSTMENT DISTRICT ...

MINUTESMOHAVE COUNTY BOARD OF ADJUSTMENTDISTRICT IIIMARCH 24, 2010MEMBERS PRESENT:Michael Daley, Chairman James Mabery Don DonahueSTAFF PRESENT:John Montgomery, Planner IIRobert Taylor, County AttorneyDenise Scott, Clerk of Board of AdjustmentGUESTS PRESENT:Mr. and Mrs. Jim NuszerMr. and Mrs. Rodney CasiasCall to Order at 1:02 p.m.Pledge of AllegianceRoll CallMeeting MinutesMinutes to be approved: October 29, 2008Michael Daley made the motion to approve the meeting minutes from October 29, 2008; JamesMabery seconded. Motion carried unanimously.2. Request for a VARIANCE TO SECTION 16, REGULATIONS FOR SINGLE FAMILYRESIDENTIAL/MANUFACTURED HOMES PROHIBITED OR “R-O” ZONE; and SECTION25, SETBACKS AND AREA REQUIREMENTS OF THE MOHAVE COUNTY ZONINGORDINANCE PER SECTION 30 OF THE MOHAVE COUNTY ZONING ORDINANCE, toallow for an approximate five-foot (5’) rear yard setback for a shade structure on Lot 59, Block 12,THE REFUGE AT LAKE HAVASU, Tract 3701, in Section 20, Township 14 North, Range 20 West,in an “R-O” (Single Family Residential/Manufactured Homes Prohibited) zone, in the Lake HavasuCity Area, Mohave County, Arizona. AKA: Assessor’s Tax Parcel Number 120-46-335.Mr. Daley chaired the meeting and asked John Montgomery to begin. Mr. Montgomery read the request fora variance then gave an overview of the staff recommendation and the photo presentation and indicatedwhere the shade structure would be located in the rear yard setback. Staff found that this lot was not anydifferent than other lots in the area and it would be up to the applicant to make their case as to why theirsituation was unique.Mr. Donahue asked if the shade structure would be free-standing and considered a pergola. Mr. Jim Nuszer,the applicant, provided the Board members with a sketch of what the structure would look like.

MINUTESMOHAVE COUNTY BOARD OF ADJUSTMENTDISTRICT IIIMARCH 24, 2010PAGE 2Mr. Montgomery added that there was a letter from the Homeowners’ Association which stated that they hadno objections.Mr. Daley asked how strongly the County was against the structure being in the setback and Mr.Montgomery stated that the general principal that once a structure was erected in a setback then it tends toencourage others in the neighborhood to also want to encroach in the setbacks.Mr. Daley inquired about the open space behind the applicant’s property and Mr. Mabery added that itlooked like it might have been a flag lot. Mr. Nuszer stated that it was a dry wash for water runoff or catchbasin area; it included rocks and gravel, and would never be developed. He was not sure who owned theundeveloped area behind his home.Mr. Mabery wanted to clarify whether the property was located in a portion of The Refuge near the golfcourse or if it was separate and Mr. Nuszer said it was separate from the golf course.Mr. Daley asked the applicant what the shade structure was for and Mr. Nuszer answered that it was for ashade and barbeque area.Mr. Donahue questioned if setbacks applied to pergolas also and Mr. Montgomery checked the DefinitionsSection of the Mohave County Zoning Ordinance but could not locate the definition of pergola. Mr. Maberyunderstood that a pergola would need to be permitted, so setbacks would apply to the structure and Mr.Nuszer agreed.Mr. Nuszer read from the Zoning Ordinance that the side setbacks would be five feet and questioned why aten-foot setback was applied to this situation. Mr. Mabery asked Mr. Nuszer what he meant by the ten-footsetback and Mr. Nuszer understood that the Zoning Ordinance indicated the rear setback was ten feet. Mr.Mabery thought that the setback was twenty feet and Mr. Montgomery stated it was unless there was amobile or manufactured home on the property. Mr. Nuszer did not realize that.Mr. Daley asked the applicant if he was in The Refuge Community Association and Mr. Nuszer replied yesand that the Association did not have a problem with the structure being placed in the setback but he did notwant to do anything without the approval of the County.Mr. Mabery stated that the job of the Board members was to be fair and equal with all residents of MohaveCounty with respect to the zoning and building codes. He reminded the applicant that he was in an area thathad a twenty-foot setback and a structure that needed to be permitted and that was what the Board wouldconsider. There were other circumstances involved and Mr. Mabery expressed that he would like to knowmore about who owned the property behind the applicant and what the potential intent was. Mr.Montgomery noted that after staff examined the records the parcel behind the applicant’s property was adrainage parcel owned by the Homeowners’ Association, not The Refuge, and it was not a parcel that couldbe built on. Mr. Nuszer added that the Homeowners’ Association was where the letter of support came fromand that they maintained the property.

MINUTESMOHAVE COUNTY BOARD OF ADJUSTMENTDISTRICT IIIMARCH 24, 2010PAGE 3Mr. Mabery next explained to the applicant what the criteria was for the Board to base their decision on andread from Section 30.F, Board of Adjustment and Variances, of the Mohave County Zoning Ordinance. Mr.Mabery expressed that he did not see a general hardship that was imposed and continued to quote fromSection 30 of the Zoning Ordinance. He expressed that there were a few situations in favor of the applicant,for instance that there was no neighbor behind their property so that structures would not be back-to-back inthe setbacks.Mr. Nuszer questioned what the real reasoning was for the setback portion of the Zoning Ordinance. Mr.Mabery stated that if everyone were allowed to build in the setbacks then structures would be right next toeach other and there would be no privacy.Mr. Nuszer stated that he went to the Homeowners’ Association and showed them the footprint of the shadestructure and acknowledged again that he would need a permit as a large enough structure for plenty of shadewould be necessary.Mr. Daley asked if the side yard setback would be encroached upon and Mr. Montgomery answered no, thatthere was a five-foot side yard setback and the structure would not encroach into it.Mr. Mabery wanted the applicant to understand what the rules were that the Board members needed tofollow and Mr. Nuszer stated that he understood. Mr. Mabery stated that the Board members were there touphold the Zoning Ordinance and be fair to everyone.Mr. Nuszer felt that he had a unique situation and that he was the property owner and would be retiring atthis residence in Lake Havasu City.Mr. Donahue expressed that he went to the property to look at it and thought that the applicant was trying toput too much in his backyard and that he had a problem with the setback situation even though the structurewould not be enclosed.Mr. Daley agreed that the Board members had rules and guidelines to follow and that the hardship issue wasquestionable. The problem was that the setback was twenty feet and the applicant wanted a zero footsetback.Mr. Mabery made the motion to deny the variance based on the staff recommendation, that theZoning Ordinance would mean nothing if the Board was to allow everyone to do what they wanted.Mr. Nuszer expressed that his neighbors did not have a problem with what he wanted to do and that he wouldnot be encroaching on the space or view of others, that he only wanted some shade in his backyard. Mr.Mabery felt that every Board member would want to approve the request, that it was a great idea, but theBoard members were not a neighbor trying to help the applicant, that they were there to support the MohaveCounty Zoning Ordinance. The only way to do so would be to try to keep everything as consistent aspossible.

MINUTESMOHAVE COUNTY BOARD OF ADJUSTMENTDISTRICT IIIMARCH 24, 2010PAGE 4Mr. Mabery made the motion again to DENY the variance; Mr. Daley seconded the motion. Motioncarried unanimously.3. Request for a VARIANCE TO SECTION 16, REGULATIONS FOR SINGLE FAMILY RESIDENTIALOR “R-1” ZONE; and SECTION 25, SETBACKS AND AREA REQUIREMENTS OF THE MOHAVECOUNTY ZONING ORDINANCE PER SECTION 30 OF THE MOHAVE COUNTY ZONINGORDINANCE, to allow for an approximate three-foot (3’) rear yard setback for a garage on Lot 3, Block S,AGUA VIEW, Tract 1051, in Section 23, Township 17 North, Range 22 West, in an “R-1” (Single FamilyResidential) zone, in the South Mohave Valley Area, Mohave County, Arizona. AKA: Assessor’s Tax ParcelNumber 224-37-297.Mr. Montgomery read the request for a variance then gave an overview of the staff recommendation and thephoto presentation. In addition to being in the rear setback, the garage was also partially in a utility easementand the utility companies submitted letters with statements of consent to the encroachment with someconditions. There was also three letters of support staff received from neighbors.Mr. Donahue asked if the garage was permitted and Mr. Casias answered no. They had already fixed up fiveother properties in the area and did so according to the Mohave County Zoning Ordinance. Mr. Casiasadmitted that he overlooked this particular property and did not permit the garage as was necessary.Mr. Daley asked how long the garage had been there and Mr. Casias stated approximately three years. Mr.Mabery asked if a permit was applied for before construction began and Mr. Casias stated that their originalintention was to build a shed that would not have needed a permit.Mr. Daley asked the applicant if he was planning on selling the property and Mr. Casias replied that he andhis wife planned to retire on this property. Mr. Mabery wanted to know if the applicant owned the propertyand Mr. Casias answered yes and he owned three other lots right next to this one. Mr. Mabery asked whyMr. Casias did not build the garage on one of the other lots and Mr. Casias stated that he made a mistake bynot doing so. Mr. Mabery wanted to know if the garage had electric hooked to it and Mr. Casias said that itwas on a concrete slab and had electric going to it and apologized for not obtaining a permit.Mr. Casias explained that when he moved to the neighborhood it was very run down. After he moved therehe purchased a few other properties and fixed them up so the other neighbors started to take better care oftheir properties and they had no objections to the placement of his garage.Mr. Mabery wanted to know if there was open space behind the property and Mr. and Mrs. Casias bothstated that there was. Mr. Casias added that the utility companies had inspected the garage and as long asthey had access to his property and the easement at any time, they did not object.

MINUTESMOHAVE COUNTY BOARD OF ADJUSTMENTDISTRICT IIIMARCH 24, 2010PAGE 5Mr. Daley wondered if there might be a legal issue if the Board denied the variance request and Mr. Taylorstated that the violation would have to be abated, which would mean to move the garage out of the utilityeasement and rear setback. Mr. Mabery asked if the applicant would have another means to overturn theirdecision if the variance request was denied and Mr. Taylor indicated that the applicant would have the rightto appeal the decision to Superior Court.Mr. Donahue asked if the County was asking the applicant to move the garage and Mr. Montgomery statedthat in order to comply with the Zoning Ordinance the garage would have to be moved if the variance wasnot approved.Mr. Casias stated that with the economy the way it was he had an attorney giving him legal advice and Mr.Mabery stated that would not make a difference as to what their decision would be, that their job was touphold the County Zoning Ordinance and at the same time to be fair with persons who had a disservice doneto them. It was obvious that there was no disservice to the applicant in this instance, that the applicant hadmade the error by not following the Zoning Ordinance. Mr. Casias admitted that he made the mistake andtook full responsibility for doing so and stated that he would do what was necessary to make things right.Mr. Mabery next explained to the applicant what the criteria was for the Board to base their decision on andread from Section 30.F, Board of Adjustment and Variances, of the Mohave County Zoning Ordinance.Unfortunately, the applicant’s property did not meet any of the criteria and the problem was self-imposed.The Boards responsibility was to the County of Mohave and the Zoning Ordinance contained the rules theyhad to abide by uphold when they made their decision. If one person was allowed to break the rules thenothers in the neighborhood would feel they could do the same; the Zoning Ordinance was in place to protecteveryone.Mr. Daley felt that there would be a hardship if the applicant had to tear down the garage and Mr. Maberyreiterated that the violation was self-imposed.Mr. Donahue had the opportunity to view the applicant’s property but he was not sure about the surroundingarea. He read the letters that the neighbors submitted and appreciated that the neighbors liked the applicant.Mr. Mabery stated the property was one of the nicest ones in the area.Mrs. Casias indicated that when they moved to the area it was run down. Her husband bought one of the rundown properties and put a new mobile home on it. The surrounding neighbors were surprised that Mr.Casias did that and it helped to improve the area. They had family members and friends also buy property inthe area and that also helped to make improvements and clean the area up, even providing work to some ofthe local residents. Mr. Casias added that the improvements were also bringing up the value of the propertiesin the area. Mrs. Casias continued stating that her husband bought a few other lots in the area, cleaning upthose as well.Mr. Daley asked if the County’s rules were followed when the other lots were improved and Mr. Casiasstated that they maintained the proper setbacks and obtained permits for everything.

MINUTESMOHAVE COUNTY BOARD OF ADJUSTMENTDISTRICT IIIMARCH 24, 2010PAGE 6Mr. Mabery asked the applicant if a permit was obtained for their garage and inspections were performed,would the structure pass the building codes and Mr. Casias answered yes.Mr. Daley asked how the variance request came about and Mr. Casias stated that in August, 2009 he receiveda complaint letter from the Zoning Division of Mohave County and was told by a Zoning Inspector that apermit was needed for the garage. When he was drawing the plot plan, he made measurements anddiscovered that the garage was in the rear setback and utility easement.Mr. Donahue reminded the applicant that the Board members had to stay within the guidelines and rules ofthe Zoning Ordinance and that the issue was self-imposed. He expressed that he could not see any way theBoard could approve the variance. He looked at the surrounding area and noticed that there were worseproperties that the applicant’s, some with structures erected right up against fences.Mr. Daley agreed that the garage should not have been placed where it was and felt that to tear it downwould be a detriment to everyone concerned, including the neighborhood, however the Board members hadguidelines to follow.Mr. Daley noted the last page of the staff recommendation that gave conditions to follow if the Board shouldapprove the variance request. He felt that those were reasonable conditions and asked Mr. Taylor if theBoard could actually approve the variance request with the noted conditions attached. Mr. Taylor said theycould, as long as the approval and conditions were for the garage only and that there were other criteria forthem to follow.Mr. Mabery made the motion again to APPROVE the variance based on the conditions provided bythe staff recommendation; Mr. Daley seconded the motion. Motion carried unanimously.Mr. Daley wanted to be sure that an inspection by the County would be performed in conjunction with apermit and Mr. Taylor stated the inspection would be for the structural integrity of the garage not theplacement.The applicant was instructed to be sure to obtain the necessary “as-built” permit within a reasonable amountof time.Mr. Daley made the motion to adjourn. Mr. Mabery seconded the motion. Motion carriedunanimously.Meeting adjourned at 1:53 p.m.Respectfully submitted,Denise ScottClerk of Board of Adjustment and Zoning Secretary