Planning Commission - Regular Meeting

Alright. Good good evening, everyone. I'm gonna call the meeting to order here. If I this is the board of adjustment meeting for 01/07/2026, the meeting of the town of Paradise Valley Board of Adjustment, and I'm going to call the meeting to order and welcome you all. My name is Eric Lupson, chairman of the board, and I'm gonna request everybody to silence your phones and ask our staff secretary to please call the roll.

Board member Williams? Present. Board member Petsis?

Present.

Board member Ozer? Here. Board member Kuykendall?

Here.

Board member Contadino? Here. Board member Barnes?

Here.

And chair Liebsen?

Here.

Thank you, chair. We have a quorum.

Thank you. Okay. My opening statement is the board of adjustment is a quasi judicial body that rules on variances to the Paradise Valley zoning ordinance. We are governed by the Arizona state statute defining under which circumstances we are empowered to provide those variances from the provisions of the zoning ordinance. Rulings and previous rulings of the board do not set precedence.

Each request is reviewed on its own merits, and each decision of the board is based on the specifics of the property and the requested variance. For the benefits of those in attendance, here is an overview of how we will proceed. When the case is called, the town staff will make a presentation with questions from the board. Next, you as the applicant or your representative will present with questions from the board. I will open the public hearing and ask for those who wish to speak in favor of the application followed by those who wish to speak in opposition to the application.

If needed, please if you plan to speak, please complete a speaker card. Each speaker will have three minutes to speak. There will be a timer displayed on the computer screen for all to see. When the timer goes off, the speaker's time limit is up. I will then close the public hearing.

The board will deliberate, proceed to a motion, and vote. When you approach the podium, please speak into the microphone and state your name and municipality of residence. Board decisions may be appealed to the superior court of the state of Arizona within thirty days of a decision made by the board. You are free to remain in the chambers after the ruling if you wish. We will be, by no means, be insulted if you choose to leave.

We will then move on to the next order of business. And I'll just say, so far, I've received three speaker cards. I'm not sure if there's gonna be more than three that wanna speak, but one in favor, one in opposition, and one is not stated either way here. So if you can receive the speaker cards and turn them in, that would be great. All right.

So with that being said, we do have a quorum. We're going to proceed to the public hearing of this case, which is case number 20Five-two62, which is the pace variance 7062 East Belmont Avenue, the variance to allow the trellis to encroach into the side yard with frontage setback. George, are you making the presentation? Yes. Okay. I'm gonna turn the floor over to you.

Thank you. Good evening, chair and board members. So we just had the one variance request this evening for 7062 East Belmont Avenue. And today's goal is to review and take action on the variance request, would allow an unpermitted trellis, a detached trellis remain and encroach in the side yard setback. So the agenda for this evening is to go over the background, the scope of the request, staff's analysis and recommendation, and the action for tonight.

On the left hand side is a vicinity map showing the location of the property which is North Of Cheney and West of Scottsdale Road, and on the right hand side is an aerial photo of the property. In terms of site conditions, the property is zoned R35CP for cluster plan. It is a corner lot. It's Lot 62 of the Cheney Estate subdivision. It's about 23,000 square feet in size, rectangular shape, and it's a 164 feet deep and a 150 feet wide.

If planted today, the town code would require it to be a 190 feet deep and a 150 feet wide. The home was built in 1993 and the current lot coverage or floor ratio is 24.9% and town code does allow maximum of 25% floor ratio. Again, the original home was built in '93. The latest permit issued for the property was for a detached structure in the northwest part of the rear yard and then the open code violation for the trellis, which was on permitted, that was issued on May 5. Again, so the request is to allow that trail structure to encroach into the side yard setback.

Since it's a corner lot, the code identifies that it has to have a 40 foot setback on the side with the street, and this structure is set back approximately 15 feet from that east property line. It's about 16.5 square feet in floor area. The footprint of it's a 163 square feet, but our code identifies you only count the portions that obstruct sky. So since it's open air structure, it's just those solid portions that are included in the four year ratio calculation. And this is a comparison of the code requirements versus what's being proposed.

So it's meeting three of the four setback requirements, again, with encroachment on that east side, which requires a 40 foot setback, and the applicant is requesting a 15 foot setback. This is a site plan that was included in the packet. It's about 16 feet long and about 10 feet wide. And at the peak, it's about eight feet tall. And this plan does show string lights, but the owner did remove the lights from the structure.

If they do decide to add lights to it, providing the variance gets approved, they will have to be compliant with code. And the next couple of slides are just photographs of the trellis structure. On the lower right hand side is from 71st Street. And this is the structure here disappearing behind those bushes. And these are photographs of the trail structure inside the backyard.

And then just another photograph of the trail structure on-site and another photograph itself. In terms of staff analysis, although the property does have a shallow depth and it does reduce the amount of vulnerable area staff, it doesn't believe this is a memo needed to cure the property hardship. That shallow depth was part of the master plan as a cluster plan. By design, the property does meet our minimum with standards a 150 feet and appears that it can accommodate a code compliant trellis. If the applicant did obtain a building permit, we would have noted it during plan review that wasn't being setback requirements and they could have modified their plan accordingly.

And town code does not guarantee the most optimal use of the property. Notification was done in accordance with state statute and town policies. The applicant did provide 23 letters of support, there was also a letter of opposition from the board of directors for the HOA. Staff doesn't believe, again, that this does warrant property hardship and does not meet all three variance criteria. Therefore, we are recommending denial of this application.

And there's three possible actions for tonight. You can deny the request, approve it with stipulations that all improvements have to be in compliance with submitted plans and documents. The applicant has to obtain a building permit and the required building inspections, and also obtain a floor air floor area ratio certification in accordance with our building permit process. And the third action would be to continue for further review. And that concludes my presentation, and I'd be happy to answer any questions.

Thank you, George. Are there any questions from the board for George?

Not yet. Alright.

So I think our next order of business, we'll ask the applicant or their representative to approach and go ahead and make your presentation.

Good evening, mister chair and members of the board. Benjamin Tate with with the Moore Spa, 2121 East Highland Avenue on behalf of the applicant sorry. Took me a second to remember that we just moved moved addresses, and I think I got that right. Delighted to be here this evening. And, actually, I would I would like to start just by thanking staff. They're always a delight to work with. I'm fortunate to do a lot of work in the town. And and this is one where frankly we just disagree. We, you know, we worked with them for a few months to get to a point where we were trying to earn their recommendation. I think we were close to getting there, but I don't think we quite got there.

And I think it just comes down to a difference of opinion on how to read the variance criteria that are adopted by state law and therefore through the town of Paradise Valley as well. So about the site. So as George mentioned, it's 7062 East Belmont. It's in the Cheney Estates neighborhood. The site is about a little less than or sorry, a little more than 23,000 square feet, which is a little more than a half of an acre.

It's zoned r 35 cluster plan, which we'll get to to what that means in a second. To our north, more r 35 cluster plan, same to the east, same to the south, and then r 43 property to the west, also in Cheney Estates, but in Cheney Estates, all the properties that are along that western boundary there are r 43 and not part of the cluster plan zoning. So that cluster plan zoning, which was both r 35 and r 18 was approved in 1992. The final plat was recorded just a month or two after that, and a 4,300 square foot residence was built two years after that as Cheney Estate started to build out. So as I noted, it was rezoned from to r 35 and r one eighteen cluster plan in 1992 via ordinance three forty seven, and that was in May '92.

The final plat came about two months later in July '92. And and the reason that's important, the reason normally in a variance case, wouldn't be reciting for you the dates that the zoning was approved, But it it plays into why this site is a legally nonconforming site and why that ultimately leads to a special circumstances that is the basis of our variance. So about four years later, via ordinance four thirty two, the zoning ordinance was amended to create what's known as the circle rule for lot configurations in Paradise Valley. And what the circle rule essentially says is that the minimum depth a lot can have is a combination of your front setback requirement plus your minimum lot width. So that circle should be able to fit neatly within that front setback and still have enough space left over for that circle to fit into it.

And so what that means for the purposes of our case, which is an R35 lot, which despite being cluster plan is still held, as George noted, if it was today's standards to the normal subdivision requirements, is that at a minimum lot width of 150 feet for an r 35 lot plus a 40 foot minimum front yard setback, the minimum depth that an r 35 lot can have in the town of Paradise Valley today is 190 feet. So originally, that amendment, which again took place four years after the zoning and which creates our legally nonconforming condition, was originally added to the zoning ordinance, and it was just part of their lot standards within the zoning ordinance. A couple of years later Sorry, nine years later in 2005, that section was relocated into the subdivision ordinance. So now if you're plotting lots in Paradise Valley, those are the standards that you're subject to. Ultimately, it doesn't really matter one way or the other which section they occur, and you're ultimately subject to both.

So as I noted, we would norm sorry, I actually didn't note this. Let me back up for a second. So under today's standards, in an r 35 lot, whether it's cluster plan or not, which really is part of the basis for this special circumstance, you're required to have a 40 foot setback adjacent to any front frontage. So now for a corner lot, that means that on two sides of your property, you are required to have 40 foot setbacks for that corner lot, which is what this lot is subject to. And what we are requesting is to reduce that setback to 15 feet for this trellis structure.

Man, this thing is on a hair trigger. So the case that we're making is that this legally nonconforming lot depth, which depending on the side of the lot that you're on because this is not a perfectly uniform lot, it does curve because of the cul de sac that it's on, it's anywhere from 35 to I think 50 feet noncompliant. I think the shorter end of this lot is 140 feet, and the longer end of the lot is 164, but nonetheless considerably shallower in-depth than a standard r 35 lot would be required to have today. Additionally, what we will get to, which is not one of the criteria, but I think it is an important additional consideration, is the minimal nature of this structure. So when we think about what setbacks are intended for, which is really intended to act as a buffer between your property and your neighbor's property, whether it's residential, commercial, etcetera.

It's really about impact and what impact the structures on your property are going to have on adjacent properties and creating appropriate buffers for those. And actually, this is one of the things that I was the most surprised by when I started working on this case. Because when when Zach first came to me with this, he said, well, we need a a variance for this structure, he sent me a picture. I said, that's not a structure. Turns out I was wrong.

In the town of Paradise Valley, this would be this is considered an accessory structure despite its minimalist nature. And the reason that I bring that up is we would be required to go through the same process for a structure that as even you see from the pictures that the town provided is almost imperceptible from outside the walls of the property as we would be if this was a four walled with a roof conditioned structure that's blocking out the sun in every direction and has considerably more massing than a structure like this would have. So while it isn't stringently part of the variance criteria, one of the things we will be asking you to consider as part of this decision is the minimal nature of the structure and the lack of impact it has relative to the intent of setbacks, which again is impact and buffers for adjacent properties. And finally, again, not part of the overall criteria, but one thing that we also have going for us is the fact that although there is a 50 foot right of way along 71st to our east, there is a 10 foot landscape strip between the curb line and our wall that provides an additional 10 feet of buffer.

So while it is a 15 foot setback that we are requesting, the effective setback from the street is actually 25 feet. So let's start with the special circumstances. So again, I'll go back to the cluster plan zoning option that was selected for this development back in in the early nineties. And and it allowed for undersized lots in both R 35 and R 18 in exchange for more robust open space within the community, Cheney Estates does have, which allows them to reduce the size of the individual lots below what R 18 and R 35 would otherwise allow. It doesn't explicitly allow for deviation from the prescribed minimum lot width, is which part of what we get into is this being problematic.

And so while you can reduce the overall lot size, there is nothing in there that explicitly allows reduction of the lot width, which is why if you look at any other or look at any R35 lot within Cheney Estates, it's going to have a 150 foot minimum width, but it's going to have that much shallower depth, which allows them to reduce the overall area. More importantly, and this really I think gets into the heart of kind of our case in chief here, is that cluster plan lots are still subject to the standard setbacks despite the undersized lot area. So what you see here is overlaying the accessory structure setbacks for an r 35 lot onto this property. The reason that this creates I wouldn't go as far as calling it a conflict, but maybe an unintended consequence of the cluster plan zoning option is that when setbacks are generally promulgated by a municipality, when they're looking at their zoning ordinance and applying proper setbacks for particular lots, they're looking at the minimum standards that that lot would otherwise have. So if we're looking at a standard r 35 lot, again, would be a minimum 35,000 square feet with a minimum 190 foot depth, a 40 foot setback adjacent to any frontage makes a lot of sense because that leaves a lot of area on the interior of the lot for accessory structures, for the building envelope, for the house.

It leaves all those options. But what we've tried to illustrate here is the options that you're left with for a cluster plan lot that is still subject to the normal setbacks for an r 35 lot with considerably shallower depth than the code would otherwise allow for today. And I jumped a little bit ahead of myself in the bullets there, but that that last one I think is really critical, which is setbacks typically assume the minimum lot sizes and standards that those lots are subject to, which isn't the case here. And, again, I just reemphasize the timing here is critical because the the cluster plan zoning was adopted in '92, the circle rule was adopted in '96, and then ultimately ported over to the subdivision ordinance in 2005, which creates, again, what we would call a legally nonconforming condition. If this were to go back through the process today, this lot would not be allowed in the town of Paradise Valley.

So the next part of the test, which is a really important piece of the test, this special circumstance is not self imposed. Obviously, played no role in the zoning of estates nor any part in the plotting of Cheney estates nor the amendments that ultimately led to the circle rule that created the legally nonconforming depth of property. And importantly, and this I think is really probably the heart of the disagreement between how we look at this case and how town staff looks at this case, and I do think reasonable minds can differ here. Obviously, we think we're right. Otherwise, we wouldn't be standing at the podium.

I think this is an unanticipated consequence of the interaction between the cluster plan zoning, the standard setbacks applied to cluster plan lots, and the later adoption of the circle rule, which created those minimum lot depths, which were intended to standardize lot sizes with or lot depths and and sizes within the town of Paradise Valley. And why I say this really gets to the heart of disagreement is I think from staff's perspective, and I don't wanna speak for them, say this is an assumption, that variances are strictly limited to a, let's call it a physical nonconformity of the property. It's something about the topography of the property. It's something about the shape of an individual property that merits the variance. Now we have a non uniform lot that is undersized in terms of depth, but I think where we differ from the town's perspective here is that, they they would say, well, there are other lots in Chinese states that have this condition.

That's true. There's no getting around that, but I firmly believe, and and this has played out in variances that I've done both in the town of Paradise Valley and elsewhere, That the variance process is also intended to cure or address these types of conflicts or unanticipated consequences that the zoning ordinance creates. So strict application. So we have to demonstrate that a strict application of the ordinance deprives the the property owner of property rights that are otherwise enjoyed by people who own r 35 lots. So what I would point to is that, again, standard r 35 lots which enjoy a legally non conforming or sorry, a legally conforming depth, which would be a 190 feet, enjoy the adequate yard area that was intended by that minimum depth standard to allow for an adequate building envelope for both a primary structure and accessory structures and room for both adequate room for both.

And the inadequate dimensions of this property, which I really think are illustrated by this particular graphic here, are what are depriving the property owner of the ability to appropriately locate the structure outside of the setbacks to the point at which this variance wouldn't be necessary. And it's the confluence of the cluster plan zoning, the adoption of the circle rule, and the application of standard r 35 setbacks to non standard r 35 lots that creates the special circumstance. A few other considerations. Again, I think the minimalist structure is a very important one here, and there are two things I would point to. One, it a tubular steel structure that has creates almost no visual impact once you are outside of the four walls of this property.

The best way I can illustrate just how minimal the visual impact of this is. When staff asked us to do a calculation of the additional coverage that this structure would create, meaning the amount of shadow so the amount that it's blocking the sky, which is how the town of Paradise Valley calculates coverage. I had to measure every individual beam, multiply it by an inch of or a width of two inches to ultimately get us to 16.5 square feet of coverage. So it is about as minimal in nature as a structure can get, but on top of that, the structure's design, and you saw this from the last picture and I think is even more emphasized by this picture, flowering vines are planted at all four corners of the structure. It's a trellis, that's what it's designed for.

So there will be a point in the not too distant future when this structure will be completely covered by those flowering vines. When you combine that with the fact that the ficus hedge both on the inside and the outside of the wall, just based on the pictures that staff took this week versus the ones that I took earlier this summer, are already growing at an incredible rate. It won't even take until the vines are done growing for this structure to essentially disappear within the landscape just because that hedge will cover it before the vines have a chance to. And then finally, as I noted earlier, there's really two things we're talking about here. There's the setback from the property line, which is how the town measures it, which is our request for a 15 foot setback.

And then there's the effective setback, which is how far it is between the nearest structure or between the structure and the nearest point at which somebody could observe the structure, which is really that curve along the West side of 71st, which get when you add that additional 10 feet gets us to an effective setback of 25 feet, which is really, I would say, just one more mitigating factor working in favor of the variance. And the last thing that I would emphasize, I counted 20. I don't know if there were three additional letters of support that I didn't see, but just being full transparency, we submitted 20 letters of support. If there are additional three, that's wonderful. But I've been doing this for nine of my thirteen years of practicing as an attorney, and by this I mean doing exclusively land use and zoning and working with neighbors and working with cities to get projects approved.

Getting 20 people in one neighborhood to agree on anything is in and of itself an achievement, and I credit all of that to my client, to Zach, for going around and getting these letters, but I I think it speaks to the merit of the request. These are just some photos of that condition, both inside and outside the wall. And I had a graphic here, and I'm gonna have to back up because I this thing moves so fast. I might there it is. I didn't jump past it.

I just I just forgot to mention it. So an additional overlay that I put on this particular slide. So in in red, you have the setbacks for an accessory structure in an R35 lot. That yellow strip that you see on the back there is the additional area that would be available had this been a standard 190 foot deep R35 lot. So that just illustrates for you sort of the difference between the two and what that means in terms of overall lot area and building envelope.

So in summary, we're bringing this request to you because we firmly believe that this meets all three criteria of the variance test. It's just one where as much as we respect staff and enjoy working with them, this is just one where we respectfully disagree on whether or not we meet the variance criteria. It's a special circumstance in the form of a legally nonconforming shallow lot depth when combined with standard r 35 setbacks and the circle rule creates a very challenging condition to locate accessory structures. We had no role in creating the conditions that created the special circumstance and the strict application of the ordinance deprives the property owner of rights that are enjoyed by our 35 lots that are conforming. We are asking for the minimal relief necessary to allow this structure to exist, which is also then mitigated by that green screening both inside and outside the wall and on the trellis itself.

And as I noted, we have a considerable amount of support from the neighbors in the Chaney Estates neighborhood. I apologize for being so tedious, but I just wanted to make sure that we cover all elements of this, and I would be happy to answer any questions that you may have.

Are there any questions?

I just have one. When you had page 11, I assume that's a typo in the second bullet down requesting development of backyard pool. That might be from

a Yeah. That sure is. That was

a There you go.

Okay. Thank you for catching that.

Gotta watch it. Okay. Alright. I I guess I do have a question that I see that the applicant had applied for building permits for the other work that had been done on the property.

Yes.

They did not apply for a building permit for this. Had that taken place before it was erected, then we would be having somewhat of a different discussion. I'm just curious as to why a building permit was not requested.

Board member Osher, it's the very same reason that I noted at the beginning of this conversation, which is that if I as the zoning attorney are surprised that this actually counts as a structure within the Paradise Valley zoning ordinance, my client certainly was. And so when the trellis was erected, there was it was a simple but incorrect belief that it wouldn't have required a permit.

Okay. Thank you. I don't have anything else right now.

I I was gonna ask the same question, but

Too bad.

That was good. Okay. Ken, do you have something? I

do. Under what circumstances did it come to the town's attention that this was an issue? That the structure had been built and and, you know, everybody was living their lives and all of a sudden, you know, we're all here discussing whether or not it should be or should not be permitted or not. But under what circumstances after it was built did it come to the town's attention? They

received a so I believe it was this so just like any other municipality, the town of Paradise Valley's code enforcement system operates on complaints. Mhmm. And so it would have had to have come from some resident observing that there was a trellis structure there and checking that it didn't have a a permit. I suppose the other way, and again, is entirely supposition on my part, is that because there were was other permitted work, as you noted, going on-site at the time, an inspector may have noted a stretch a structure out there that was not permitted and reported it that way. And George is nodding his head. I think

that's We we we received a complaint. Okay.

There you go.

Okay. Thank you.

Thank you.

Let me ask you something about the non self imposed hardship that you described. And, you know, looking at looking at the parcel, it appears there were alternative locations to place the trellis on the property and not create the issue for the variance. I mean, I I just kinda wanna get the thought process that went into that and how you can explain it as a not being a self imposed hardship.

Cheerleaves, certainly, and and it's a fair question. And so what what I would note that is on the the graphic that's on the screen right now that you're not seeing because obviously we we can only work off of aerial photography that the county does once a year. So the the permitted structure that we're talking about that George noted in his presentation, the detached permitted structure is in that only other area in which it could have occurred to the west of the pool. And so the question may then arise, well, you should have just put it there or you should have chosen between the two. And again, I think that's a fair question just assuming that was probably the follow-up question that you had.

And my response to that would be, I think that's kind of immaterial because if our entire argument is that we are at a disadvantage relative to legally conforming our 35 lots, which would have that additional, you know, 25 to forty, fifty feet of additional depth that we don't have, there would have been more than adequate room to do both. And so that's really the heart of our argument is that it's the lack of or or I would say the difference in property rights or opportunities relative to a conforming r 35 lot that is sort of the basis of our argument. And a conforming r 35 lot would be able to accommodate both.

I have a question and a comment. The question is who constructed this structure?

The trellis?

Yeah. It looks to me more like a frame for a gazebo than a trellis. Yeah. The trellis.

An iron working company?

Sir, we don't know who we don't know who constructed it?

Gable Ironworks. Gable Ironworks.

So they're a licensed contractor. I would think they should have known they checked with the should have known that that would require a permit from the city of Phoenix of Paradise Valley. I would think.

Guess would be just as good as mine

at this point. Okay. Thank you. Yeah.

Let me just follow-up one. You know, you keep referring to the additional depth going to the north, but I mean, setback we're looking at is on the East. So how how how does this how does the additional setback on the north if I mean, the additional depth, if that was part of this, you know, lot plotting when it was zoned and so forth, how would that, you know, contribute to the the the setback we're looking at on the East?

Surely, it's it's a simple math problem. So whenever we're talking about setbacks and lot lot coverage and lot depth and all of these things, what we're ultimately talking about is the building envelope. We're talking about the space that exists within those four setbacks that allow somebody to build things. And if you take an additional 30 to 40 feet and tack it onto the back of this lot, that's an additional 30 to 40 feet of rear yard that you have to work with for whatever you might want it to be. So the only reason that it's going there, and I'm pointing to this, I'm you can't see what I'm pointing, the east side of the lot is the only other place that it's able to go.

If all of a sudden you've got an additional 30 to 40 feet to play with on the back of the lot, it can easily go there.

All right. Are there any other questions from the board at this time? Okay. Well, so I think what I'm gonna do is I'm gonna close or I'm open the public.

The public hearing.

The public portion of the hearing will be opened, and I'm gonna call on the speakers. Charisse, do we have more than do we have any additional cards?

I have not received any additional cards yet.

Alright. So let's see. The one that is requesting to speak in favor is Marsha Welch. Can you please come forward? Marsha here?

I'm I'm not in favor.

Oh, it said oh, you it checked. Oh, I'm sorry. You're not in favor. Okay. It's maybe I'm reading where if you're a Paradise Valley resident.

I wish you

wish to speak.

Do you do you I wanna get anybody on these cards that wish us speak in favor first, and then we'll hear the opposition. So the three cards I have, I assume they're all in opposition. So, Marsha, come on up. Sure.

There's a timer for three minutes on the screen. We'll get you started. If you could just start with your name and city of residence. Thank you.

Good evening. My name is Bernard Kirk. I'm the president of the Cheney Estates HOA. Thank you very much for coming this evening to listen to our side of the story as well. The Board's position about this is as follows: Cheney Estates has nothing whatsoever against trellises or pergolas.

In fact, we like them. Our concern is the setting of precedence and how it affects Cheney states thereafter. When you allow somebody to go against the rules of the town, it has a direct effect on us with consequences for our community. Cheney Estates consists of 72 homes in a gated community. The reaction to us as a board will be, if you allowed this person to do this, why won't you allow us to do that?

And if we disagree with continual requests for variances, we as a board are accused of discriminating. That puts us as the board in a very awkward position, especially if you constantly go against the rules, it ultimately leads to a situation where almost anything goes. Now, our suggested solution to Mr. Pace is just move your pergola somewhere else on your property. We trust that you ladies and gentlemen will take the correct decision.

Thank you for your time.

Thank you. The only response I wanna make in regards to one of your statements is that each case is is evaluated on its own merit. There are there are no past precedents set. And so therefore, if if a variance is approved for a particular case, it doesn't carry forward to any future cases.

I understand and that's why I mentioned how it actually affects us as a board inside the community because people come up with other requests that don't qualify coming in front of you, but there are, as you know, many other such requests put to us. But thank you. I understand.

Thank you. Alright. Marsha Welch.

I'm Marsha Welch. I'm on the Cheney Estates board, and I just want to make it clear that I believe it was December 2024 we spoke to these homeowners about a building permit for a different structure on their property that they ended up not erecting. But we told them at the time about the town's rule for any require any structure greater than eight inches in height requiring a permit. So this pergola is fitting that category.

I think you meant eight feet in height. Correct? Not not No.

Eight eight inches.

Oh, eight inches?

Okay. Which means

pretty much anything.

Oh, okay. Sorry. All right, thank you. Christie Pennington?

Are

you going to speak? No? Okay. All right. Is there anybody else in attendance that would like to speak in favor or in opposition?

Seeing none. Okay. I'm going to yes? Please. Come forward, please. Did you submit a card?

I have it, but I can

submit it. Go ahead. Come on come on up. Come on come

on up. Just just state your name and

My name is Robert Robinson. I'm on the board of directors of the Chain of States Homeowners Homeowners Association, and I support the position that our president has taken. We do not want to set precedents for others to use to avoid conforming to the zoning regulations of the town. So I just want to say that I I support our president's position and oppose the request.

K. Thank you. All right. Let me just follow-up on one of the board president, the HOA president. Do you have a procedure for your HOA that the homeowners submit the drawings for you to approve prior to, and I assume in this case it wasn't done, or Is that a true statement?

We just saw it Monday.

All right.

I'm gonna close the, if there's no other public comments, I'm gonna close the public hearing and the board will deliberate. I'm going open the floor to the board to, we're going to have comments and questions among ourselves.

Can I

put the request up here on the screen?

Charisse, can you See

what the request was formally called.

Looking

for the site of the staff recommendation.

Yeah. Thank you.

I'd like to just, make a comment that I'll I'm probably not in favor of this variance. I think it's a very novel argument, legal argument to say the zoning is the hardship, but the zoning applies to everybody. And candidly, when you bought the house, the owners bought the house, we had the same zoning there. Nothing's changed on the zoning. So, you know, if if you're mister Tate's is is is basis for it, then every homeowner could say the zoning is a hardship and I don't need to follow the zoning.

And that's not the intent of the zoning code. And that's certainly, I can see where the where the homeowners board would have concerns if if that was the way we operated, but we don't operate that way. And I don't think I've ever had a case where I've had somebody propose that the zoning has made this a hardship.

Yeah. You

Mister chair, board member Williams, I I would like to make clear that we are we are not in any way suggesting that the zoning itself is the hardship. What we've made very clear is that the depth of the lot is the hardship. Was that created partially by the zoning? Yes. But it but it is a it is a combination of not just the zoning, but the plotting and the application of the the legally nonconforming application of the circle rule.

But ultimately, what this comes down to is we have to demonstrate that there is a physical hardship on this lot. There is a demonstrable and staff even acknowledges that there is a demonstrable physical hardship on this lot with the the the lot depth that does not meet the town's current standards. And so does does the zoning play a role in that? Absolutely. But I I would we would certainly not be resting on our laurels that the zoning itself is the application of the hardship.

And there's just one other thing that I'd like to point out as it relates to support versus opposition for this case and what this ultimately means. I chair leaps and I completely agree with you and and we've said it from the beginning that every case has to stand on its own merits. No case sets a precedent and if some other homeowner were to come forward that they would have to make their own arguments as to why they're deserving of a variance. But more importantly, and I'll go back, I think I'm sure you've certainly you've seen the slide in your presentations of the the people within the Cheney Estates neighborhood, 20 of which submitted letters of support for this application. Among them are all of the lots that are immediately adjacent to this property.

So the folks who would have, I would say, the most standing to opine on whether or not this creates any particular impact, all of them are in support of this application. Thank you.

I do have a question.

Okay. Oh.

Yeah. Mister Kirk, Mister Kirk, would you mind coming back to the podium because I have an HOA question for you. Thank you. Just a hypothetical. If the trellis is taken down, then they are in conformance.

If they then chose to purchase two or three canterleaving canterlevering umbrellas to create shade on their property and place it wherever because it's not a permanent structure, would that be in violation of any of the rules of the HOA?

No. We would would follow we have a procedure. They would apply and they would, we would request that they would use colors that tone in as opposed to say a bright orange, if it could be a cream color or something that we would agree to that.

Okay. Would there be a limit as to the height of those umbrellas? We

would prefer that the obstacle that then emerges, we would prefer it not to be seen by neighbors or, for example, a kiddie's playground that is 18 foot high, we wouldn't want something like that. But we would consider the application.

So if it was eight feet high, it would be okay

in Yeah. Okay. Yes.

That's all I wanted to know. Thank you, I wanted clarification

Thank on you very much. Just

to follow-up on Hope's questions, I mean, I'm very familiar with HOA design guidelines. And I would say, you know, the guidelines for an HOA usually take or they do take precedence over zoning of the town. So therefore, they're usually more stringent and in terms of the height and the colors and so forth that that, you know, proceed with, you know, overruling or or actually going beyond what the zoning ordinance allows in terms of they can be more stringent, in other words. So I'm assuming you all have those sort of guidelines in place at Cheney Estates.

We have

that in

our guidelines.

We can choose to be more strict than the town.

Eric? Yes.

Can I just

say something?

Sure.

I listened to the comments about a hardship and this is a community of 71 lots which are all hardship lots because they're all undersized. And looking at at one lot, you you can come up with a lot of rhetoric about why this is harmful, but from an overall standpoint of the association, they have to live with what we agree on and while Eric says that there's no tie between cases, each case is individually ruled on, but when you're in a community of 71 lots and you the association allows one homeowner to violate the setbacks, they they can't defend themselves. Association can't defend itself when another homeowner wants to violate the rules. And then you get into issues that people wanna sue and you created really a mess for everybody. And this is just one lot.

It doesn't you know, if it's a practical matter, it looks like it has a clear roof. So it's it's not like you're creating a lot a lot of shade or anything. The thing is pretty much open. So it would be hard for me to to side with the applicant in this case. Thank you.

You ready for motion?

No. Let me ask let me see. Bill, did you wanna speak? No. But I'll make the motion. Well, let's see. Are are have we concluded our, deliberations? Okay. So I'll close the deliberations. So we will ask for a motion to be made in a second, and then we can have further discussion at that point. Bill?

I want to make a motion that the board of adjustment deny case number BA25Dash12.

Do you want to continue on with that or just as

I need to add anything to clarify?

Do we need further

You can just note as noted in the staff report.

As report. Noted in the

Alright. We have a motion. Is there a second? Second. We have a motion and a second.

Any further discussion at this point?

Yeah. I I have one. Go ahead.

Yep.

Perhaps a legal question. So to the extent that the motion passes and the application fails, can we also amend it to say that the structure has to be removed within a time period?

Chair, members, my answer to that would be no. I think staff would take it from there. I think your decision is just whether the variance is approved or not.

Thank you.

Yeah. I have another legal question here for you. In the event that the motion fails, what's to prevent the applicant in the future from doing some type of roof covering or wall coverings that would then add to the percentage of lot coverage that would put them over the 25% limit. Is there any way to stipulate no further roof coverings or any further square footage in excess of the 25? Chair

members, my answer to that, I think, would be similar, which would be nothing that's within the purview of the board of adjustment. I think we're pretty limited. We rule on the variance and the rest of it, the staff kinda takes it from there. And you have staff here if you are interested in, you know, how what that would look like. But this board won't have a role in that. Okay.

So right right now we have a motion on the floor for denial and we have a second.

I would like to speak.

Hope would like to speak.

I've got to admit that and I've served on this board since DIRTT, and I am very conflicted on this from a because it's absolutely beautiful what you've done. I also can understand why constructing that you wouldn't have necessarily thought of it as a structure. Yeah. You're putting up a few not to minimize it, but some sticks. But we are confined as a board to having to make any variance conform with the three criteria as set forth by state statute.

And as hard as I tried, and I will say that mister Tate did an outstanding job of arguing how it does in each of these, I can't support it on that basis. I would love to say we don't we can throw those out the window and say, yeah. It looks great. Go for it. But I'm as much as I hate to, I'm going to vote for the motion, which is to deny.

Okay. Any further discussion before we call for the question? Charisse?

The motion is to deny. Board member Williams?

I approve the motion. Is that correct?

And I vote yes.

Thank you. Board

member Petsis?

Aye.

And I vote. Board member Ozer?

Yes.

And I vote. Thank you. Board member Kirkadale? Aye. And I vote. Thank you. Board member Contadino?

Yes.

And I vote. Board member Barnes?

Yes.

And I vote. Chair Liebsen?

Yes.

And I vote. The motion passes unanimously, and the application is denied. The variance Alright. Is

So this concludes our case. Sorry for the results, but I think it's unanimous and as beautiful as the structure is, we I think you understand our reasons for this vote. So thank you for your presentation, and you're you're allowed to depart if you wish, or we're gonna move on to our next order of business.

Okay. Thank you. Move

it on.

George, the consent agenda, do we have any items for consent agenda?

Yes. Just approval of the last meeting minutes for the December 3 meeting.

Good. So I'm gonna ask for a motion for the

I'd like I'd like to note for the record first, there are a few edits. Board member Petzas was kind enough to point those out to me. I

missed them.

So under sections five, seven, and 11, under the voting portions, it was listed I vote versus I vote. So there's no nay votes recorded. So each section will be updated to correct the or to reflect the correct voting.

Okay. That's an appointee.

That's right. So do we have a motion for approval of the minutes of 12/03/2020?

So moved.

Do we have a second?

Second.

It's moved and second. All those in favor of approval of the minutes, please signify by saying aye. Aye. Opposed? Hearing none, the minutes are approved. Next order of business, staff reports. George, do we have staff reports?

There are no staff

reports. Public body reports, future agenda items.

Future agenda items, the February meeting will be canceled due to lack of agenda items. So March is the next tentative date.

So so there is a case in the pipeline for March? Yes.

I just don't know if they're gonna come back.

Okay. Okay. Alright. Do I, is there a motion for adjournment? So moved. So it's moved, seconded. Second. All those in favor, aye. Aye. Okay. We're officially we're adjourned. Thank you very much.

Thank you all.

It's okay. It's okay.