Planning and Zoning - Regular Meeting

Good evening. I now call to order the meeting of the Board of Adjustment for the city of Apache Junction. Today's date is 12/08/2025, and the time is 7PM. Please join me and rise for the National Pledge of Allegiance.

Here. Board Member Klepper. Here. Board Member Harshman.

Here.

Board Member Meek. Here. Seven present, we have a quorum, Mr.

Chairman. Thank you. Do we have a motion to approve the consent agenda? So moved. Second. Thank you. Rudy, roll call, please. Board Member Meek. Yes.

Chairman Schoenbeck.

Yes.

Vice Chair Martin. Yes. Board Member Lanza. Yes. Board Member Gordon.

Yes.

Board Member Klepper.

Yes.

Board Member Harshman.

Yes. So moved, Mr. Chairman. Thank you. We have no public hearings this evening. We have no old business this evening. So we're going to move on to the new business, which is the election of chair and vice chair. This procedure is a little bit long and drawn out, but we've been through this all, a lot of us before. At any rate, can I have a motion to open the nomination for the chairperson? So moved. Thank you. Can I have a second? Second. Thank you. Roll call, please. Who is the second? I'm sorry. Thank you.

Board Member Meek. Yes. Board Member Harshman. Here. Board Member Klepper? Yes. Board Member Gordon?

Yes.

Board Member Lanza? Yes. Vice Chair Martin? Yes. Chairman Schoenbeck? Yes. CHIEF ROBERTS: Chairman. CHIEF JUSTICE JUSTICE

Thank you. I call for nominations for chairman. I call for nominations for chairperson. I call for nominations for chairperson. Can I have a motion to close the nominations for chair? So, Mr. Chair, I so move. Second, please. I second. Roll call, Rudy.

Board Member Harshman?

Yes.

Board Member Klepper?

Yes.

Board Member Gordon?

Yes.

Board Member Lanza? Yes. Board Member Meek? Yes. Chairman Schoenbeck? Yes. Vice Chair Martin? Yes. Nominations are closed, Mr. Chairman?

Thank you.

We have one person nominated for chair. That would be Frank Schoenbeck.

Thank you. I now call for a motion to approve Frank Schoenbeck for chairperson. So moved. Second. Moved and seconded. Roll call please, Rudy.

Board Member Gordon?

Yes.

Vice Chair Martin? Yes. Board Member Harshman?

Yes.

Chairman Schoenbeck?

Yes.

Board Member Meek?

Yes.

Board Member Lanza? Yes. Board Member Klepper? Yes. Congratulations, Mr. Schoenbeck. You are chairman once again.

Thank you, and thank you all. Can I have a motion to open nominations for the vice chairperson? I so move. Can I have a second? I'll second. Voting seconded. Roll call, please. I second.

I'm sorry? Okay. Chairman Schoenbeck? Yes. Board Member Meek? Yes. Vice Chair Martin? Yes. Board Member Harshman? Yes. Board Member Lanza? Yes. Board Member Klepper? Yes. And Board Member Gordon? Yes. Nominations for Vice Chair are open. Mr. Chairman?

Thank you. I now call for nominations for Vice Chairperson.

Mr. Chair. Yes. I nominate Vice Chair Martin

for another term.

Thank you. I now call for nominations for Vice Chairperson. I now call for nominations for vice chairperson. I call for nominations for vice chairperson. Can I have a motion to close nominations for vice chairperson, please? So moved. May I have a second? I'll second. Moved and seconded. Rudy, roll call please.

Board Member Meek. Yes. Board Member Lanza. Yes. Vice Chair Martin. Yes. Board Member Klepper. Yes. Board Member Harshman? Yes. Chairman Schoenbeck? Yes. Board Member Gordon? Yes. Nominations are closed, Mr. Chairman. One person nominated, that being Mr. Martin.

Thank you, Rudy. I now call for a motion to approve Rod Martin for vice chairperson.

So moved.

I second. I'll second. Moved and seconded. Roll call, please. Chairman Schoenbeck. Yes. Board Member Meek?

Yes. Board Member Klepper?

Yes.

Vice Chair Martin? Yes. Board Member Lanza? Yes. Board Member Gordon?

Yes.

Board Member Harshman? Yes. Congratulations, Mr. Martin. You are our Vice Chair once again.

All right. Thank you all. That was well done.

Nobody wanted to make

that interesting. All right. Next part of our new business here is warning. Get myself lost is the discussion with staff on the duties of the Board of Adjustment. Joel.

Actually, Mr. Chair, congratulations. I'd like Rudy to Rudy has some information for you also. And we may have duplicated each other on some of the authorities. But if I could let Rudy go first.

Just, at your stations, Mr. Chairman, out of our zoning ordinance, I copied a couple of things, for you. One is, the powers of the Board of Adjustments section one dash 16 dash four out of our zoning ordinance. You will notice that it is reflective of state law, the handout that Joel gave you. He basically gave you two sections which pertain to the Board of Adjustment.

One is the Board of Adjustment and Appeals explains what the board basically does. And then I also gave you the section on how the appeal and variance process works. A variance would be someone requesting to deviate from the standards that are normally required for the development of a property on a particular parcel, whether it be residential, commercial, industrial, public institutional, if somebody wants a height variance, if somebody wants a setback variance, if somebody is trying to build on a lot that's very small, those kinds of things. Those are the types of cases that would typically come to you as part of a variance process. An appeal is more someone disagrees with a zoning administrator's interpretation of a certain provision of the zoning ordinance.

Maybe they disagree on a particular land use in a particular zoning district. So one has to do with the configuration of land and buildings proposed on it. And the second, the appeal process has more to do with, I'm reading something differently than you're reading. So those are the two types of cases that would typically come to the Board of Adjustment. Honestly, we don't get these cases very often. We used to get more of these back in the '90s for some reason. And then the last few years, they've seemed to kind of tapered off. Every once in a while, we get a very interesting controversial case. You must have

become very easy to work with.

JOSHUA Well, we try to help people find solutions, find compromises. Have you thought of doing it this way? Have you thought of maybe approaching the development of property a different way? So we try to avoid folks extra cost. Coming to the Board of Adjustment, there's an application. There's a time element. There's a cost, a fee element involved. And honestly, sometimes people would just rather fight us in court and pay the $250 fine as opposed to paying for a Board of Adjustment process that can be up around $700 $800 So that happens, too. Not very often. We get, for the most part, voluntary compliance.

But every once in a while, we'll get a case come to the Board of Adjustment. And if it's justified, if there's a physical constraint with the property that a variance makes sense, we, you know, support it. And, of course, the decision is ultimately the board's. Appeal cases are a little more interesting because some things really are open to interpretation. We try, no zoning ordinance is perfect.

There's always going to be, you know, matters that people see differently. And when those cases come up, you know, we try to make our best recommendations to you and let you make the final decision. And then, of course, you are a quasi judicial body, So your decision pretty much stands unless someone wants to appeal it to the Superior Court. There is no appeal to the city council. It's a little more formal in that respect, whereas

a planning

and zoning commission decision could be appealed to counsel, public art committees, parks and rec committees. Those types of boards have internal appeal mechanisms. Board of Adjustment, someone would have to go to court to challenge your decision. So that's basically my handout to you, Mr. Chairman. Joel's got stuff straight out of ARS and some case law to share. Unless you have any questions for me, I'll turn it over to Joel.

Anybody have any questions for Rudy? No. I think Rod was right on when he said things are going very smoothly. You have to be a part of that. Okay, Joel?

Thank you. All right.

Thank you. Thank you, Rudy. First of all, it's going to be very rare that I give you advice. Because if you have a contested case and there's an attorney on the other side, what I will do is I will hire another attorney to handle That's in case if something happens and someone doesn't like your decision, they can take it to superior court. And if the other side has an attorney, it's more likely that that would happen.

So I I would not wanna compromise my duty to my client, which is when it's a contested issue, it would be my client is the city. So that means Rudy and his staff. And so when there's an attorney that sues, they're gonna sue the city of Apache Junction. They might name all of you. I've seen that done in cities.

And so you need representation separately. And if it if it ever does go that way, depending on what happened at the Board of Adjustment, it might be a different attorney that I hire to actually represent you. So just keep that in mind here. But you're you're, you know, you are protected in that sense. So what I've given you is the authority to establish the board of adjustment. And we have done we we have met that. It's under nine dash four sixty two point o six, and that's by creating the ordinance that actually set up the board of adjustment. So you have that also. And we can go through these quickly if you'd like. It's a public hearing process.

There'll be the authority and jurisdiction exists under the letter c. And like a jury like Rudy mentioned, there's two different types of things that you will see, zoning administrator appeals and also variances. And there has been in the past a stay of an action so that there's more time given that comes up under letter e. There's you have to do a notice and hearing. You are subject to the open meeting law.

And so there has to be an agenda. There has to be the notice that goes out. The power of the board of adjustment under letter g three, you can reverse or affirm or modify the order of a zoning administrator. That is what you're supposed to do. One one of those things.

You cannot change a use because that's really up to the city council when they pass a zoning code. You can't add a use if someone just said, hey. I wanna have I wanna have cattle slaughtering industrial next to residential. No. You cannot add that. So if that comes to you, remember you cannot change the use. For a variance, it has to be special circumstances. It cannot be self imposed. Some of the cases talk about that. I'll get into that a little bit later.

We're in a interesting situation. We have less than a 100,000 people. And so there's a provision in the code that says if you have if the city has more than a 100,000 people, it's treated a little different. The city council actually someone could appeal to the city council. They go to board of adjustment. If they don't like what the board of adjustment did, then they go to the city council. So a 100,000 or more persons in those jurisdictions. Rudy, we're not gonna be there for another year. Right? Is that about right?

A few months. Okay. And there's thirty days after the Board of Adjustment hearing that someone has a right to file an appeal. And once again, it goes to court, and the court can affirm or reverse or modify your decision. And then going to the city code provisions pretty much I tried to we tried to mirror that and we pretty much have done that.

Spelled it out a little bit more. There's another part in here that says no ex parte communication. So what that means is you shouldn't be talking to the attorney for the other side or me if we're if before the meeting, before the hearing. That's called an ex parte. It's separate. And that all has to be in public. So when an attorney comes to you or wants to seek you out before the hearing, this is not the Planning and Zoning Commission. That's a little different. Where yes, attorneys can do that because they're doing that on behalf of their client or the applicant. Yes, this is there's an applicant for board of adjustment.

But because you are a quasi judicial board, and that means you actually judge things also. So you judge what the zoning administrator did. That's why it says quasi judicial. Because of that, you cannot talk to the applicant. You cannot talk to the attorney before the hearing.

You have to do everything in public. That's how it is set up. There's some new standing law, which I'll go through. There's application requirements. And I think that is pretty much when when someone wants to go to the board, we have to do part of the cost of the hearing.

We have to notice everyone within 300 feet, meaning all property owners. So that has to be done. And if that's messed up, that can cause problems at court because that cannot be messed up in any way. Okay. So there's also something in our code that's a little unusual. It says, say you give somebody a variance. Well, you put a deadline on that. And they have a certain amount of time to do that. And it's one year. And that would be in the actual order of adjustment ruling.

It's a little different than a zoning case. Where the Planning and Zoning Commission might say, yes, we want to well, it'd the city council at one point, because planning and zoning is pretty much recommendations. So the council would say, Okay, you now have your new zoning. You have two years to do it. Say it's a CUP. And if you don't do it, it basically goes away. Well, it has to it has to come to a meeting for that to happen. It's not an automatic reversion to the old zoning. It used to be. And that changed, I don't know, fifteen, twenty years ago.

So that's how that would work. But with a board of adjustment matter, it's quite a judicial. Once again, if you give somebody a variance, have about it every year to do it. And if they don't, I think what would happen is we'd bring it back for full due process to the board, where you would then say, Okay, you did not do this. So your variance is gone. That's what we probably would do. Haven't had to do that before. Usually people act on it pretty quickly when they get a variance, especially when the board is being very generous. So going to the memo, I picked some cases that I thought are interesting. To me, they're fascinating.

Okay, just to me. I don't know. Maybe to Rudy, they're a little fascinating. But some people, they could care less. But if you want a copy of these cases, let me know. And I can certainly email it to you or get you hard copies. I find it fascinating. So standing, the first case is Arkady Osborne. The bottom line on that was, you've got to have particularized individual harm. In this case, it was a billboard challenge. People were complaining about new billboards that went up in Phoenix, in Downtown Phoenix. And they really couldn't say, hey, it's particular to me. And so they didn't have a standing. It was just a group of people that saw the billboard every time they went to work. And they didn't like it.

And they didn't like seeing it. And that was it. And so that wasn't enough. So they did not have standing. Time to file an appeal. The time runs thirty days from final Board of Adjustment decision. In the case that I cited, it got a little fuzzy on what the Board of Adjustment actually did. But they did a final they did a decision, and then someone tried to appeal it. And so when does the time actually count from? And it's the time that they said, yeah, this is our decision.

So that's that was an interesting case. Defamatory statement. So people think they could say anything, especially when they're in public. Well, to a certain degree they can't if it's true. And also when people come to a hearing, like a zoning hearing, or even here, What they can do is, if it's true, and they're acting in their capacity, First Amendment capacity, and so they can say how they feel about a project.

They absolutely can do that. Now there's been attempts in the past to shut those people down afterwards, or get even with them because the applicant didn't like what they said. And so that's called an anti SLAP suit. So anti SLAPP strategic litigation against public participation. That means the applicant's upset because they didn't like what the person said.

And they're going

to go after that person for damages in court. And that has happened in the last twenty years. It's happened at least twice. And those are nasty lawsuits.

Aren't those being challenged? Isn't Arizona anti SLAPP laws being challenged right now?

JAMES Yeah, but I think it will be constitutional. They're after it for First Amendment. It's like, well, there is a First Amendment. And you can say things during it's in a public forum. This is a public forum. And it's a traditional public forum. So this case involved a issue involving land. And some people were upset. They went after each other. And the bottom line is, if it's true, it's privileged, especially at the Board of Adjustment level, because it's in a quasi judicial form.

Re hearing versus abuse of discretion decisions. The court is to determine whether a Board of Adjustment decision was arbitrary or capricious or otherwise abused its discretion. So it's not really a rehearing. It's whether they look at the facts, they look at the record. So what would happen is if something that you did got appealed, the tape recording or the video of this both would go to I'd have a court reporter here sometimes also in case something happened to the video.

Because I don't want to have this retried. Because that's the problem. If, say, your record is bad, and if you can't hear it, you can't see it, it's really more of hearing it. So I would kind of double the effort by having a court reporter here. And that way, the court, when it gets to court, that's all they listen to. That's what they look at. And they look at exhibits that had been put in that you accepted as exhibits. So that's why we do the hearing to that extent. And then the judge would just look at it saying, Okay, did you abuse your discretion? Were you arbitrary or capricious in the evidence that you heard?

And that's supposed to be the sole focus of an appeal of a Board of Adjustment matter. It's not supposed to be a new hearing. It's only a new hearing when the record got messed up. And then it goes to trial in court. And we don't really like that to happen. So let's move on. There's use versus one typo. Page three, use that said of area variance. It should have said or. There's a use variance.

And that's the kind that where you allow a use that's not in the code. Then area variance relieves the duty to comply with specific setbacks, specific lot issues, frontage, height, that sort of use, and yard size density. In this case, this was a pawn case. Everybody loves pawn chops, right? But before that, it was an adult theater. Everybody loves those, right? Oh, everybody loves those, right? I don't

want to step in the right direction.

So what happened was Phoenix rezoned it, or they took some property. And so now the buildings were the lot size was too small to have that kind of use. So they wanted to do a pawn shop. And so it came down to standing. It's always something I mean, that was something simple. And the court said, the pawn shop had standing. The guy, the neighbor, whoever I think the neighbor, Jamachek, I think is his name he was a competing pawn shop somewhere in the area. And he didn't like what was going on. He didn't want to have competition. So the pawnshop, the court basically said, yeah, they have standing.

So that's where that came up. And then they got into what's a use variance and what's an area variance. Convenience versus hardship. So you will hear that when you get a variance case. In this particular case, this was fascinating. It was in Paradise Valley. Some guy wanted to build a house and paint it a certain color. And he had dreamed of having a white house in a Mediterranean style. However, the exact and the color was not in the city code. He said, it doesn't matter.

I wanted to do this. And it generally meets it. And basically, the court ended up saying, no, it's not in the code. So we're not going to change the code. So no, you have to pick one of the colors. I mean, this is Paradise Valley. You don't mess with Paradise Valley, especially They the

have colors in their city code.

They certainly do.

Are they an HOA or are they a zoning code?

Well, some people say that the city is an HOA, but it's not. They have it in their code. I was being facetious. They do things because you don't want to have a house, Your house on the hill is worth $5,000,000 And then someone builds this nasty yellow house. And you don't want that because it's going to affect your property value. And property value there is like the goal. Keep property values as high as possible. And that's what they did there. Here, they had, I think, had colors that were in tone with the mountains. And this guy thought white blended in with the mountains.

And it didn't. So now, tell that to the San De Verre Mission down in Tucson. That's white. Okay? White, white. That doesn't blend in with anything. But churches are exempt. And that was done in 1796, I think. They're grandfathered. I would say great, great, great, great, great grandfather. Yeah, want you say Rudy. Is that about right?

That's the correct technical term, yes.

Yes, Okay. There is a height variance thing. This is another Tucson case that goes back sixty years. If everybody I don't know if anybody knew the store called Levy's. It was a high end department store. And they wanted to build another floor. Because in their opinion, Olivi's is not a basement type of store. That was their attitude. And so basically, and this is in a very expensive area of the city of Tucson. It's called the kind of like Downtown Phoenix. You have El Encanto. This was also El Encanto. That's what they call it in Downtown Tucson. Or not downtown. It's not downtown.

It's midtown. But very, very expensive houses nearby. People didn't want to see three stories, even though it was far enough in on the setbacks. That didn't matter. So the court basically said, this is self imposed. Once again, it's that term self imposed. You did this to yourself. And so we're not going to agree to it. And you're too high. You're not under the code. We're not going to increase the height under the code. That's basically what that court did. Okay. So notice, advocacy. This is the Camelbak case, a hospital.

Mr. Martin and I were talking about that. They wanted to remodel. And the question there was, could they remodel? And the court eventually said, no, they cannot, because it went beyond what the code said. And there was also a notice issue. The notice itself has to that goes out to the 300 feet. It has to show what kind of change, if there's going to be a change, how it affects nearby properties. And I think the notice in that case was inadequate. So those are just a sampling of these cases.

Fascinating stuff. You could read this stuff for hours and hours, especially Mr. Schoenbeck. Are there any other questions on processes? Mean, we don't really want you to get a case, because Rudy's always right in his decisions. But I don't like when people challenge him. However, if it comes, you will get the case, and you'll get it promptly. And we will definitely deal with it, especially through his attorneys involved. Any questions?

Mr. Chairman, may I ask a question? Of course. So if the Board of Adjustment does need legal advice on a particular case, how do they go about requesting legal advice? Say, for example, call an exec session and when is an exec session used?

Okay. Say you get your packet, and now you're going through and say, oh my god, this hearing's in five days. I don't know what this stuff means. So you want to talk to someone. You probably should wait until the meeting. And if I have an attorney involved, you'll talk to an attorney. You won't talk to that attorney in here during the public. If it's a legal issue, you should really do it in what's called executive session. And that's where you go back into a room and you make deals. No, I'm just kidding. Ask the attorney questions about the case. And it has to be legal questions. You cannot talk about, hey, Martin's going to vote this way. We have three other votes on the other side. Let's just vote that way.

You can't do that. Executive sessions, you cannot vote in executive session. If it's a policy issue, you really cannot do it. You only could ask the attorney, hey, if we do this, what's, you know, what would happen? Hey, what about the variance? Does it meet, does it meet these three things? And the attorney could go through, well, here's what the variance is, and here's how you meet it. So it's up to you to match up the facts to decide whether the variance is there. That's your job. So if you do want to talk to an attorney, that's how you're supposed to do it.

If you want to talk to an attorney before the meeting, that'd be kind of a little difficult, because you're supposed to really be all together to do that. And then if have a meeting that has not been noticed, that's a problem. You really need to meet the open meeting law. That's why you can have an executive session. And don't worry about how much time it takes. People are still waiting here. That's Okay. We'll take you back into the conference room. That's how it would work. And then everybody else stays out here, including me and Rudy, and you'd be in there with the attorney. And that's how that would work.

Mr. Chairman?

Yeah, we have done that also.

Yes. Chairman, have a question. The ex parte thing is the thing that always makes the hair on my neck stand up because we live in a small town. So say we do have a case. Of course, he's going to make sure we don't because he's just very smooth. Willy Wonka over there. Say I'm pushing my grocery cart in Safeway, and an applicant comes up and says, oh, hey, you're on the Board of Adjustment. I had a case next week. Or my mother does, and she's a sweet old lady. What do we do?

That's a good point. It goes also to relatives.

It may not be nefarious. It's people are people.

Sure. But it also goes to your relatives of the applicant. And if they say, hey, my mother has the case in front of you, you need to just, at that point, shut them down and say, I'm sorry. I cannot talk to you about that case in any form. And I'll see you at the meeting.

And then do we disclose that incident at the meeting?

You can. But especially if some on the other side, they bring it up and say, hey, I saw you meeting with them. You can't do that. Like a neighbor who's in protest of whatever you're deciding. I saw him. Here's a picture. Here's my cell phone here. Oh, yeah. That's not good.

Especially if that relative or the plaintiff offered you something inappropriate. Yeah.

Well, like, hey, if you vote this way, I'll give you $50 Or I'll give you if you come to my restaurant, I'll give you a free dinner. You can't do that. No. No. No. But when people see you, I'll give you I know you want to get out of here, but I'll give you a little story. When I was a Green Corn prosecutor back too long ago, way too long ago, I was in a jury trial. And we had a jury assembled. And we were doing jury deliberation. Well, actually, not deliberations. We're just getting the jury impaneled. We impaneled it. And then my great uncle was in town. And so he was in town that day. You can't say no to your great uncle, right?

You can't. So I took him out to lunch. And then we came back. And he left. And then we came back into the courtroom. And then immediately, I had the other attorney saying, your honor, Mr. Stern met with a juror. Well, my uncle happened to look like some of the jurors because he was in his 80s. And so I had to explain that. So it's good that I never would have thought someone would accuse me of that. That was terrible. But yeah, you don't want to be accused of that, for sure. And so yeah, you should probably tell the rest. And you could do that in public or any session. But it's better to do it in public saying, Mr.

Chair, I just want to disclose that the son of the applicant who's sitting in the third row approached me at Fry's two nights ago and wanted to talk about the case. And I refused. Now, if they also offered you something, you can get into a crime that way. So that does need to be disclosed. Because if you don't disclose it, then you're going to be accused of conspiring. You don't want that either.

Any more questions for Joel? Before we wrap up and pick the next meeting date, this is a very strong looking commission we have here. And we don't have many cases. But when we do, like Joel said, they don't go to the city council. They go to the superior court for appeal. So it's imperative for us to do our best in deciding those cases. So whenever we do get a packet, please study it thoroughly and be ready for our meeting.

And follow the law. And follow

the law.

Not your feelings. Because that has happened in the past. Do not do that.

The law is logic, not feelings.

Well, feelings can call planning staff with any questions you may have.

Yes. Yes, definitely.

And has everybody here been through the Joel indoctrination about what we can and can't do as board members? Okay, good.

Feelings works both ways. You can have somebody that you can immensely dislike, but that doesn't can't hold that. And you can have a sweet old granny that can't work

either. Can't work either. You

have to follow the case law.

JAMES Yeah. And there's been occasions where it's sad that someone put themselves in that position. But it's just it's how it is. And then the board would rule on the side of law, which is what they're supposed to do. There's been other cases where the board has followed the feelings of people. And that is ugly too. And that didn't get appealed. But in my opinion, it should have been. And I won't identify which hearing that was or which hearings that was. But it was a fascinating one.

Rudy, when would we schedule our next meeting? Next January? As soon as we get a case. Okay. So at this point, do we schedule a meeting at all or just adjourn?

Well, you would normally schedule for your next regularly scheduled meeting, just a formality. If there's no meeting on January 12, you will get a notice saying the January 12 meeting is closed.

So if I could get a motion to have our next meeting January 12. And again, if we aren't meeting, Rudy will let us all know. So moved. Second, please.

I'll second.

Roll call.

Board Member Gordon?

Yes.

Board Member Lanza?

Yes.

Vice Chair Martin? Yes. Chairman Shanebeth?

Yes.

Board Member Meek? Yes. Board Member Harshman?

Yes.

Board Member Klepper? Yes. So moved, Mr. Chairman.

Thank you. I adjourn this meeting at 07:37 p. M.