HomeMy WebLinkAboutMinutes - Minutes - Boards of Adjustment - Meeting Date: 2/11/1999 MEETING MINUTES
CITY OF GLENDALE
BOARD OF ADJUSTMENT
GLENDALE COUNCIL CHAMBERS BUILDING
CONFERENCE ROOM B-3
5850 WEST GLENDALE AVENUE
GLENDALE, ARIZONA 85301
THURSDAY, FEBRUARY 11, 1999
The regular meeting was called to order at approximately 7:00 p.m. by Chairperson Cheniae,
with the following members and representatives present:
BOARD MEMBERS: Kathe Neyer
Daniel Drew
Ron Piceno
Kenneth Sutton
Richard Gitelson
Gordon Cheniae, Chairperson
Boardmember Koehler was absent.
CITY STAFF: Ray Jacobs, Zoning Administrator
Dean Svoboda, Planning Director
Rick Flaaen,Deputy City Attorney
Dave Pennartz,Deputy City Attorney
Katie Douglas,Recording Secretary
Chairperson Cheniae began the meeting by explaining that the Board of Adjustment is a quasi-
judicial body made up of volunteers appointed by the City Council. The Board hears requests for
relief from the requirements of the Zoning Ordinance and appeals to certain decisions made by
the Planning Director. The Board considers each request on its own merits and bases its decision
on the findings required by the Zoning Ordinance. The Board's decision is final unless appealed
to the City Council or through Superior Court.
Mr. Jacobs,Zoning Administrator, introduced the members of the staff who were present.
Chairperson Cheniae called for approval of the minutes from the December 10, 1998
meeting. Boardmember Drew made a MOTION to approve the minutes as written.
Boardmember Piceno SECONDED the MOTION which passed unanimously.
Chairperson Cheniae called for Business From the Floor. There was none.
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Chairperson Cheniae asked staff if there were any requests for withdrawals or continuances.
There were none.
Chairperson Cheniae stated that the purpose of a public hearing is to provide interested parties
the opportunityto presenttestimony for.the Board's consideration. .Anaffirmative vote of four
Board members is required to pass a motion. Chairperson Cheniae then explained the Board's
hearing process. Chairperson Cheniae called for the first item on the agenda.
ZV-98-26: A request by Francis Slavin for Thane and Nancy Fleming to appeal the Planning
Director's decision regarding determination of legal non-conforming rights for
property at 17225 North 62nd Avenue. The request includes two parcels
identified as Maricopa County Assessor Parcel 200-48-24D (2 acres) and Parcel
200-48-23A (2.5 acres). The Planning Director has determined that 200-48-24D
has no non-conforming rights, and that Parcel 200-48-23A has non-conforming
rights for a landscape and grading contractor and storage of trucks and trailers.
' The property is located in the A-1 (Agricultural) Zoning District. Staff contact:
Ray Jacobs (Cholla District).
Mr. Jacobs presented the facts of the case.
Chairperson Cheniae stated that the Board is required to hold a public hearing before making a
decision on an appeal request. The purpose of a public hearing is to provide appellants and
interested parties an opportunity to present testimony for the Board's consideration. He then
outlined the Appeal Hearing Procedure.
Chairperson Cheniae asked all witnesses, including members of the public who may testify in
this hearing, to stand and be sworn in by the court reporter.
Kimberly Portik, court reporter, swore in all witnesses.
Mr. Pennartz, representing the Planning Director and his decision, gave his opening statement.
He stated that in addition to the staff reports, exhibits and other information which the Director
relied on to make his decision, the Boardmembers would hear testimony from witnesses, other
exhibits submitted and other information which the Planning Director did not have the benefit of
when he made his decision. He stated that he believes the evidence available to the Planning
Director supports his decision. He stated that based upon the legal requirements and the
evidence to be heard the Board must come to a decision that clearly identifies what uses, if any,
are grandfathered on these properties. The purpose of the non-conforming section of the
ordinance is to protect the investment that a property owner has in a use that he is lawfully
making at the time that the zoning regulation changes. The zoning regulation can change by
annexation, as it did in this case, in placing city zoning where county zoning used to be. He
stated that it is unfair to make a property owner discontinue a use that he was lawfully making
before. Arizona law recognizes legal non-conforming uses, or grandfathered rights, for zoning,
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BOARD OF ADJUSTMENT MINUTES
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as does our zoning ordinance. He referred to page 6 of the staff reports, which outlined the legal
requirements for grandfathered uses. He stated that the burden of proof is on the property owner
to establish that they have the grandfathered rights. From the Planning Director's standpoint,
they ask that the Board make a just decision based upon the evidence in front of them.
Francis Slavin, 2198 East Camelback Road, representing the Flemings, gave his opening
statement. He stated that Mrs. Fleming would be a witness at the hearing. He stated that they
started approximately eighteen months ago to obtain an official interpretation of the zoning
ordinance regarding the grandfathered rights on two parcels of property as described by staff.
During the process, they decided to withdraw their request for an interpretation as to Parcel B.
They believe that their withdrawal for an official interpretation on Parcel B means that there
would not be an official interpretation on Parcel B. He referred to a letter dated May 19, 1998
(Exhibit 44C) withdrawing the request for an official interpretation on Parcel B. He stated that
because they were not asking for an official interpretation on Parcel B, the Planning Director
therefore has no authority to issue an interpretation on that parcel. He therefore requested that
the Board dismiss the official interpretation on Parcel B and concern themselves only with Parcel
A.
Chairperson Cheniae stated that to his knowledge, the Planning Director has the authority to go
forward regardless of the request for withdrawal.
Mr. Pennartz stated that the Planning Director does have the authority to make the interpretation,
regardless of the property owner's application for an official interpretation. However, he stated
that the property owner does have the right to withdraw as they have done.
Mr. Slavin stated that he was not informed after his letter of May 19, 1998 that he could not
withdraw his application. He stated that he was surprised to receive an interpretation on Parcel
B. He felt it was unfair and lacked due process. He stated that the Planning Director did not
have legal jurisdiction to issue legal interpretation. He asked the Board to dismiss the
interpretation on Parcel B.
Mr. Pennartz noted that the City has had ongoing complaints with regard to the land uses on
Parcel B. The Planning Director is able to make a formal, binding interpretation whenever
necessary. He further stated that Mr. Slavin has had notice of several weeks that he may come
and present additional evidence regarding Parcel B. He stated that the reason a decision was not
made in ten days was because the Flemings were given multiple opportunities over a many
month period to submit and resubmit as much information as they could so that a reasoned
decision could be made. In summary, he stated that Mr. Svoboda had the legal authority to issue
a binding decision and it is subject to appeal.
Chairperson Cheniae once again informed Mr. Slavin that Mr. Svoboda was acting within his
authority when he made his interpretation. He rejected the request to not hear Parcel B.
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Mr. Slavin made an exception that proceeding further with Parcel B does not constitute a waiver
of their right to challenge in court by proceeding on Parcel B. Mr. Slavin also referred to two
other appeals filed by Mr. Jones and by the Randalls. He stated that neither of the appellees paid
a filing fee. He stated that under the City's ordinance, to make an appeal a fee must be paid. He
stated that because neither the Jones nor the Randalls paid appeals fees, they were not eligible to
appeal the director's decision.. .Therefore, he .requested dismissal of the two appeals filed by
those parties.
Mr. Pennartz replied that nonpayment of the fee does not deprive the board of jurisdiction of the
appeal. The requirements for properly filing an appeal are to file it within 30 days, to file it in
writing and to file it with the proper office. The Planning Department policy is to collect one
appeal fee per appeal. The purpose of the fee is to cover the staff costs of processing the appeal.
Therefore, only one fee is collected per appeal.
Mr. Slavin asked if the Flemings had not paid their appeal fee, would they still be allowed to
appeal the director's decision.
Mr. Pennartz stated that the Flemings would have received a letter asking them to pay their
appeal fee.
Chairperson Cheniae then stated that it was the Board's decision that it would hear all appeals at
the hearing.
Mr. Slavin noted exception to the record and that proceeding at the hearing would not constitute
a waiver of his clients to be able to make this challenge on further proceeding. Mr. Slavin then
asked if his presentation would consist of 45 minutes per appeal or 45 minutes per party.
Chairperson Cheniae stated that Mr. Slavin, representing the Flemings,would have 45 minutes to
make his presentation.
Mr. Slavin stated that his client brought a number of pictures to be distributed to the Board.
Also,he tendered a number of letters from the neighbors from the Flemings.
Mr. Flaaen stated that the evidence Mr. Slavin referred to should not be distributed until Mr.
Slavin made his 45-minute presentation.
Chairperson Cheniae informed Mr. Slavin that he was probably running past the ten minutes
allotted to him for opening statements.
Mr. Slavin stated that he had been working with the Flemings since 1996 to try to bring some
resolution to the grandfathered rights on the properties. The Flemings bought the property in the
early 1970's. Mr. Fleming and his brother, Forrest and their wives bought a five-acre parcel and
split it. They moved their operations from another part of the county understanding that they
would be able to lawfully conduct their business there. Thane and Nancy Fleming developed a
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landscaping and grading contracting business on their parcel and also a business of repairing,
restoring, and remanufacturing semi trailers. They also stored semi trailers, as many as 20 — 25
on their property at any given time. This continued from the mid-1970's until the early 1980's.
The evidence will testify that they have always stored semi trailers on their property. He stated
that this is a couple who started from nothing and, through a lot of hard work, developed a
business.
Chairperson Cheniae requested that Mr. Slavin come to closure on his opening statement.
Mr. Slavin stated that the point is the Flemings are people who moved here in the early 1970's,
established a business, worked very hard to build up the business and they felt it was unfair for
the City to somehow find that the Flemings are not entitled to continue to operate that business
on their property as they have done since the early 1970's. He stated that the City has ample
evidence in their records to support that there was a valid non-conforming use right as to Parcel
A. As to Parcel B, their position was that there were activities going on in Parcel B prior to 1979
including cars being parked on that parcel, overflow parking occurring on nights and weekends.
Eventually, Orlando Jones, the prior owner commenced a mobile home wrecking business on
that property. There was more than one complaint that was filed with the City of Glendale
regarding Parcel B. He stated that the City of Glendale ruled that Parcel B had non-conforming
or grandfathered rights. The activities on Parcel B were never stopped and they continued until
1997 when the Randalls and a couple of neighbors filed complaints. He stated that his clients
bought the property in 1992 believing that there were non-conforming use rights. This was based
on the fact that the City did not, in response to a complaint, shut it down. In fact, the City had
stated that it was legally grandfathered. Moreover, it continued to be used in this manner for a
number of years. So, his client bought the property in 1992 and continuously operated a storage
facility on that property.
At this time, Chairperson Cheniae informed Mr. Slavin that he had gone well over his allotted
time of 10 minutes for his opening statement.
Mr. Slavin then stated that he had completed his opening statement.
Dave Jones, 17280 N. 63 Avenue, representing himself and the Randalls, gave his opening
statement. He stated that it is their hope in appealing the Planning Director's decision to grant
non-conforming use rights to Parcel A that their community will be benefited. He stated that
they did not wish to take something away from a neighbor that he had rightfully obtained. He
referred to an aerial photograph, which he placed on the overhead projector. He indicated that•
recently the City and the neighbors had made substantial improvements. Illegal building had
stopped, previously known illegal uses had slowed and recent improvements through legal use
permits and legal building permits for new and remodeled construction have made substantial
improvements. Mr. Jones then took a few moments to explain which buildings and properties
appeared on the overhead. He indicated the driveway, which was shared by the Randalls and the
Flemings. He has shared input on proposed development in neighborhood with the Flemings.
He stated that they have attended many such meetings and voiced their opinion regarding the
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•
acceptability of proposed plans. To his knowledge, the Flemings have always supported the rural
residential atmosphere. For nearly thirty years the Flemings have not sought legal non-
conforming use rights as required by the governing authorities. As a result, the neighbors have
been denied their opportunity to voice their opinions regarding such use and development in their
own neighborhood. He referred to a letter (Exhibit 22) which mentioned that the Flemings were
honest, helpful,..hard-working,...dear_..people....He stated .that_everyone who knows the Flemings
would say the same thing. He stated that the neighbors assumed the Flemings had legal use
rights. He stated they would try to affect a fair and just outcome for the future of the entire
neighborhood. He stated that they would show that the Planning Director could not have
evaluated all relevant provisions of the ordinance, or considered all relevant information related
to the decision and that the decision has errors. He stated that they would show that the Flemings
never had legal non-conforming use rights regarding these parcels. He stated that they depended
on the Board to make absolutely sure that their decision is right.
Mr. Jacobs, representing the City of Glendale, began his presentation. He stated that he would
try to touch on some of the points that brought them to the finding regarding the request for
determination of non-conforming rights as well as the Planning Director's decision. He stated
that on Parcel A, T & N Grading started business in 1971 and a mobile home was added to the
site in 1972. A single-family residence was constructed later in 1982. The property was annexed
into the City on September 11, 1979. Prior to annexation it was zoned Maricopa County Rural
43. It was rezoned to A-1 (Agricultural) by the City in 1980. He referred to a series of aerial
photographs, which were included in the Board's packets. He indicated that on Exhibit 3, dated
December 28, 1979, on Parcel A, a mobile home was in evidence, a single family residence was
still in construction and Parcel B was vacant. Parcel C is the driveway which provides access
from 63rd Avenue to Parcel A. He noted equipment and trailers on various parts of the property.
On Exhibit 4, dated December 30, 1984, were a number of trailers and equipment on Parcel A
and Parcel B was still vacant. On Exhibit 5, dated March 20, 1985, Parcel B is still vacant, and
Parcel A contains trailers and equipment and accessory buildings. On Exhibit 6, dated
November 18, 1987, Parcel B does show land uses. He noted that this land use on Parcel B
began to occur between 1985 and 1987. He noted the ongoing presence of trailers on Parcel A.
Chairperson Cheniae asked Mr. Jacobs to describe in detail, for those present who did not have
the benefit of exhibits,what the land uses on Parcel B are.
Mr. Jacobs indicated that Parcel B included a number of vehicles and equipment on the site and
storage of various construction equipment and materials. He further stated that T & N Grading
as a use was operating on the property (Parcel A) prior to annexation and that the use was
substantial in nature so as to be known by adjacent properties. For purposes of decision, the City
accepted the use as being legal in Maricopa County and determined that the use has operated in
the same general area since before annexation. There have been substantial investments and site
improvements made in reliance of the land use. Also, the use has not changed in character so as
to result in the loss of non-conforming rights and the use has been continuously maintained since
annexation. Regarding the second use on Parcel A, which is storage of trailers, the land use was
established prior to annexation. Furthermore, the use was substantial enough to give notice to
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surrounding property owners. For purposes of this decision, the City accepted the use as being
legal in Maricopa County. The use did not change in character so as to lose non-conforming
rights. In addition, the area devoted to the storage of trailers did not substantially expand after
annexation. And the use was continuous since annexation. There have been different levels of
use but there were no specific findings on one year lapses of the use.
Mr. Jacobs stated that in regard to Parcel B, no land uses were present on the property prior to or
at the time of annexation. Illegal land uses after annexation do not provide any basis for legal
non-conforming rights and the applicant's request to withdraw the consideration of non-
conforming use rights is not binding. He also stated that the Planning Director has the authority
to make determination of permitted land use on any property within the City. The Planning
Director's decision is that the only land uses permitted on the property are those listed in the A-1
(Agricultural) zoning district.
Mr. Jacobs related to the Planning Director's decisions. In regard to Parcel A, Landscape and
Grading Contractor includes the parking of construction equipment, vehicles and employee
vehicles when not parked on job site. Minor repairs of construction equipment and vehicles used
by the on-site landscape contractor as needed. The repair, parking or storage of vehicles not
directly related to the daily operations of the landscape contractor is not permitted. Also, the
existing structures that support the use include the business office located within the existing
residence and the equipment repair facilities within the largest accessory building located east of
the residence. And, the storage of construction debris, removed landscaping or new landscaping
material shall not be permitted on site.
Mr. Jacobs stated that in regard to storage of semi-trailers on Parcel A: semi-trailer storage
operates independent of the landscape grading and contractor activities. A maximum of ten
trailers may be stored on the site at any time and trailers stored shall not operate any refrigeration
units or generators while on the site. Furthermore, a stored tractor or trailer shall not move to or
from the site more frequently than once in any two week period. Once it leaves the site, it cannot
return to the site for a minimum of fourteen days. Also, the storage of trailers shall not include
the loading, unloading or transfer of goods within or from trailers on the site. This is in part to
ensure that this is truly a storage use; it is not a shipping facility. In addition, the storage of
trailers does not include any on-site repair to the trailers being stored. Additionally, no vehicles
or equipment may be stored on any of the trailers within the storage area.
Mr. Jacobs then stated that in regards to the Planning Director's decision on Parcel B, the current
use of the property was not established prior to annexation. The current use of the property was
never permitted under the City's A-1 zoning district. And, the current use such as storage,
cannot be considered accessory to a principal use since no principal use was ever legally
established.
At this time Mr. Pennartz asked Mr. Jacobs if there was evidence submitted during the review of
the matter by the Planning Director that there was any independent equipment or vehicle repair
shop use established on Parcel A.
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Mr. Jacobs' answer was no.
Mr. Pennartz asked Mr. Jacobs if there was any evidence of storage of landscape material as part
of T &N Grading on the site.
Mr. Jacobs stated that there was no specific discussion of landscaping materials. Most of the
information regarded vehicles, equipment or trailers but nothing regarding landscaping materials.
Mr. Pennartz then asked if they established any evidence of use prior to annexation on Parcel A
for general storage or sale of landscape material from this site.
Mr. Jacobs responded that there was no evidence to support this type of use.
Mr. Pennartz asked Mr. Jacobs if, in regard to vehicle storage on Parcel A, there was any
evidence that any trucking depot type use was established meaning short-term or overnight
parking of trucks.
Mr. Jacobs answered that there was no evidence that established that as a use on the property.
Mr. Pennartz referred to Mr. Slavin's opening statement in which he talked about Parcel B
having been used for parking for the arena prior to annexation. Mr. Pennartz asked Mr. Jacobs if
evidence of that was submitted to the Planning Director.
Mr. Jacobs responded that no evidence of that type was submitted to the Planning Director.
Mr. Pennartz referred to the aerial photographs submitted up to 1987 and asked Mr. Jacobs if
there was any evidence prior to 1987 of vehicles being parked on Parcel B.
Mr. Jacobs' answer was no.
Mr. Pennartz asked Mr. Jacobs if he had gone to the site and made site visits.
Mr. Jacobs responded that he visited the site in late 1996 and that he had been there on other
occasions as well.
Mr. Pennartz asked if there were photographs submitted of the various uses on the various
properties in addition to the aerials.
Mr. Jacobs answered that there were a number of submittals within the exhibits regarding uses on
both Parcel A and Parcel B.
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Mr. Pennartz asked Mr. Jacobs, with respect to Parcel B, if there was any evidence submitted to
indicate that incidental parking of vehicles on Parcel B as related to arena use on the adjacent
property continued after annexation.
Mr. Jacobs replied that no information was submitted that would support that.
Mr. Pennartz asked if any evidence was submitted that would indicate the storage use of the
materials presently on the property started before the aerial of 1985.
Mr. Jacobs responded that no information was submitted that showed this use prior to that point.
Mr. Pennartz stated that a comment was made that the City of Glendale had ruled that Parcel B
had non-conforming use rights. He asked Mr. Jacobs if he had reviewed the history of zoning on
Parcel A and Parcel B to determine if a formal determination of grandfathered rights had been
made previously.
Mr. Jacobs stated that there had been no previous determination by the City regarding legal non-
conforming rights on Parcel A or B.
Mr. Pennartz asked if there was a formal determination by a former Planning Director with
regard to legal non-conforming rights on the Forrest Fleming property.
Mr. Jacobs's response was yes. He stated that it's the parcel directly south of Parcel A. Non-
conforming rights were granted by the City in 1982 for Forrest Fleming for a trailer
manufacturing facility.
Mr. Pennartz asked if Mr. Jacobs found any indication in the records that a request was made at
that time for a formal determination of non-conforming rights on Parcel A or B.
Mr. Jacobs replied there was no evidence that a request for non-conforming rights was submitted.
Mr. Pennartz asked Mr. Jacobs if, during the investigation of the request on Parcel B, there was a
claim made with regard to Code Enforcement.
Mr. Jacobs replied that there was a claim that Code Enforcement had somehow said it was a non-
conforming use. However, there was no supporting documentation or information regarding that
issue.
Mr. Pennartz asked Mr. Jacobs if he had requested a records search at the Code Enforcement
office with regard to any prior complaints on Parcel B.
Mr. Jacobs stated that the records were researched back through 1988. The City does not
permanently retain all complaints. So, any records prior to 1988 were not available.
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Mr. Pennartz asked if there was evidence of Code Enforcement complaints from 1988 through
the present day.
Mr. Jacobs responded that there were various complaints but it was difficult to determine if it
was directly related to land uses on this parcel because of the nature of the area.
Mr. Pennartz asked if there was any indication of a formal interpretation of zoning rights being
made at the request of Code Enforcement.
Mr. Jacobs' reply was no.
Mr. Pennartz asked if the Flemings ever provided a name of a Code Enforcement officer to
support their claim that a Code Enforcement officer may have told them that he thought the
zoning rights were grandfathered on Parcel B.
Mr. Jacobs stated that the City never received a specific name as to who might have been
involved.
Mr. Pennartz asked Mr. Svoboda, Planning Director, to go through the factors that weighed in his
decision and explain the rationale for his decision and the basis for it.
Mr. Svoboda stated that one of the most difficult duties he has as Planning Director is to make
the determination of non-conforming rights. The challenge is not only to determine if the non-
conforming rights exist but also to define the nature of the land use so that it can be understood
and acted upon by others. The nature of land use makes that very difficult because of the
somewhat subjective and elusive nature of the various types of land uses. The concept of non-
conforming rights is designed solely to protect the rights of the property in question. The legal
non-conforming rights doctrine is designed to ensure that that use does not expand into other
land area, conversion into other types of non-conforming activity. There is an inherent intent
that the use ultimately goes away. The issue of non-conforming rights has nothing to do with
good land use planning. The issue of whether or not the use is compatible with adjacent uses,
whether or not it will have a detrimental effect on the surrounding area really isn't a decision that
is made when it comes to determining non-conforming rights. It is strictly a decision regarding
the rights of that property only. Every attempt is made to research and document all information
and decision-making that goes into the determination. The burden of proof is on the property
owner. The issue is to strike a fair and reasonable balance. The determination relates strictly to
the property—it has nothing to do with the business established on the property or the personality
of the property owner or the feelings of other owners in the area. The primary purpose is to leave
a clear record for the future.
Mr. Svoboda stated that with regard to Parcel A, it is much easier to document some of the uses,
in particular the establishment of T &N Grading. The history of T &N Grading was fairly well
established. It deals with the parking of vehicles and equipment and very minor repair activities
that may take place. The repair activities are comparable to those that may take place on any
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agricultural area such as a farmer who has equipment that occasionally requires repair such as
welding, etc. The grading and landscaping contracting was clearly established prior to
annexation. It has been ongoing. It is a substantial use readily visible to anyone living on a
property in the area and apparently has not changed significantly over time. The main concern
was to define the use so that it would not be misconstrued in the future. It is not a landscape
materials yard. It is not .a..general.contractor's storage yard. forrent..or lease to third party
contractors. It is not a commercial equipment repair facility. Those were some of the limitations
that were placed on the definition to be used for T & N Grading. The second use that the City
believed to be established on the site is a bit more elusive. That has to do with the trailer storage.
This is a very passive use except when trailers are coming or going to the property. The City has
less information to work with. The property owner was given some benefit of doubt. There was
no evidence that this use had been discontinued for any great period of time. At the same time,
there was no evidence that it had been continuous. So, some assumptions were made based on
the fabric of the record. The number of trailers was very difficult to establish. The nature of the
use as it related to the number of trailers was unclear. The City attempted to be reasonable given
the fact that the number of trailers that were stored on the property did appear to change over
time. The City tried to define this particular use so that it could not evolve or be misconstrued in
the future as an overnight parking facility. It could not be turned into a truck depot. And, it
would not become a freight transfer company. The City was also very careful in their definition
of trailer storage use and also landscape grading and contractor use to define that they are two
distinct and separate uses. With regard to the claim that other uses may have been established on
Parcel A, the City could find no convincing evidence to that effect. There were a number of
activities that occurred on this property over time, some of which may have been accessory,
some of which may have been illegal. But, they were not established in our opinion to the level
that would have allowed them to be considered separate and distinct uses that have non-
conforming rights.
Mr. Svoboda then referred to his decision with regard to Parcel B. He stated that this one was
more clear cut. The aerial photos and the lack of other convincing evidence very clearly
establishes the fact that there were no uses established on this property prior to annexation. The
aerials indicate there was no use on this property prior to the 1985 to 1987 time period. There's
no question that there may have been a number of uses or activities on this property over time,
but the fact that there may have been illegal activity does not give the property owner the right to
rely on those illegal uses and turn them into a legal non-conforming situation. In terms of the
decision to rule on this property, he felt it was clear from the evidence that's been presented that
there's a history of confusion in this area. In many instances, the activities that have occurred on
Thane and Nancy Fleming's property have been potentially confused with those that have
occurred on Forrest Fleming's property or other properties in the area. Because of this and the
nature of the land uses that are taking place plus the fact that the City has received ongoing
complaints during the time period in which they were undertaking this deliberation, Mr. Svoboda
felt that he would be derelict in his duty as a city official if he did not make a definitive ruling on
this particular property.
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Mr. Pennartz stated that in terms of the City's evidence, specifically exhibits 45 and 46, these
exhibits constitute the record in front of the Planning Director and with the submission of those
records the City's case was concluded.
Chairperson Cheniae noted that the City completed its presentation with approximately 10-11
minutes to spare. .
Mr. Pennartz pointed out that the City did have ten minutes left after concluding their
presentation and asked if it could be used at a later time that evening.
Chairperson Cheniae stated that the Board showed a credit of ten minutes for the City of
Glendale. He then called for a ten minute break with the hearing to recommence at 8:45 p.m.
The hearing resumed at 8:45 p.m.
Chairperson Cheniae announced that because several of the citizens attending the hearing did not
have the benefit of the Exhibit books, he would have them passed around the room for review.
He then stated that it was now time for cross examination of the City of Glendale. He stressed
that he would hold each party to their given time frame.
Mr. Slavin asked a number of questions of Mr. Jacobs. He referred to Exhibit 23. He stated that
he and the Flemings submitted evidence to Mr. Jacobs indicating that the Flemings performed
some inventorying of tools and that there might have been transferring of tools back and forth
between the equipment trailers they were storing for Bechtel Construction Company. He asked
if Mr. Jacobs recalled hearing that information.
Mr. Jacobs' reply was yes.
Mr. Slavin asked if he recalled seeing the letter dated July 17, 1982, written by Bechtel
Construction Company as Exhibit 23. He stated that in the letter Bechtel claimed to use the
Flemings for several years with regard to a security yard for storage of equipment.
Mr. Jacobs replied that the letter indicated that Bechtel used them"off and on" for several years.
Mr. Slavin asked if there were no record of complaints filed prior to 1988.
Mr. Jacobs stated that this is correct. Code Enforcement does not retain records of calls that were
complaints prior to 1988.
Mr. Slavin asked if, to Mr. Jacobs' knowledge, the Code Enforcement section maintained a
record of all telephone calls and/or letters submitted involving complaints from residents with
regard to property uses within the City of Glendale.
February 11, 1999
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Page 13
Mr. Jacobs stated that to his understanding they keep the records for a certain period of time.
Records were probably not retained after a period of ten years.
Mr. Slavin asked it were Mr. Jacobs' understanding that from 1988 forward the City of Glendale
Code Enforcement did maintain a record of each and every complaint received with regard to
property use..in the City.of Glendale.
Mr. Jacobs stated that to his understanding, if a written letter were sent and a code citation was
issued there would be a record. He stated that there would not necessarily be a record of every
complaint or phone call.
Mr. Slavin asked who in the Planning Department has supervisory authority for the Code
Enforcement Section.
Mr. Jacobs responded that the Code Enforcement section is not a. part of the Planning
Department. It is another department within the City. Currently the manager is Dan Gunn.
Mr. Slavin asked Mr. Svoboda what the basis for determination was that there had to be a
minimum of fourteen days between the time a trailer left the premises and the time it could return
to the premises.
Mr. Svoboda stated that there were a number of gaps and some assumptions that had to be made
during the review of this history and that was clearly one of them. The intent of that was to try to
distinguish and define the nature of this use as true long-term storage of trailers rather than
overnight parking or parking on.a short-term basis that would result in the trailers coming and
going on a regular basis from the site. The fourteen days was an attempt to be reasonable and
strike a balance between what the City thought historically occurred and what might be
reasonable to try to maintain in the future. The property owners during several conversations
with the City alluded to lengthy periods of time during which trailers were not moved from the
site.
Mr. Slavin asked if the fourteen day rule would apply if the trailers or semi-tractors which were
stored on the site were required to go out for emissions testing.
Mr. Svoboda responded that once the vehicles left the property they could not return for fourteen
days.
Mr. Slavin stated that if the Flemings had to send a trailer out for repair and maintenance, would
it be Mr. Svoboda's testimony that that trailer could not return to the site until the waiting period
of fourteen days had elapsed.
Mr. Svoboda replied that the way in which the letter was written, there would have to be that gap
in time. The intent was that through proper planning, the repair could be done before the trailer
was brought into the storage yard or during the time when it left through its normal activity.
February 11, 1999
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Page 14
Mr. Slavin asked if Mr. Svoboda recalled the testimony of the Flemings regarding a company
called M & C Showers. He asked if Mr. Svoboda recalled the Flemings telling him that M & C
Showers is in the business of supplying movable showers for fire fighters during the fire season.
And that during the fire season there might be movement of those trailers fairly often and then at
other times of the year..they might bestored there forsubstantial periods of time.
Mr. Svoboda stated that he remembered that there was discussion that there were periods of the
year when there would be more activity than others. He did not believe that they had discussed
specific time periods in terms of number of days.
Mr. Slavin asked Mr. Svoboda if M & C Showers were called to a forest fire in which the trucks
were needed for only six days,would that mean they could not return for another eight days.
Mr. Svoboda stated that it is true based on the writing of the record.
Mr. Slavin asked what is meant by the term minor repair in regard to T &N's right to repair their
own construction and grading equipment.
Mr. Svoboda referred to Exhibit 45, a letter dated October 6, 1998 which indicated the minor
repair of construction equipment and vehicles used by the on-site landscape contractor as needed.
He stated that minor repair generally indicates something in the way of routine maintenance,
small brakes and equipment. It would not indicate the complete overhaul of an engine would be
performed. It would clearly indicate that it was repair activity only associated with vehicles that
were in the employ of the landscape contractor and in no way permit outside commercial repair
activity.
Mr. Slavin asked if T &N could replace a motor in one of their vehicles on site if they wished to.
Mr. Svoboda replied that the indication of minor repair would probably not go so far as to have a
complete repair of an engine. If the standard definitions in the zoning ordinance were used, that
would indicate that it was a major repair.
Mr. Slavin then asked if minor repair would include welding of damaged equipment.
Mr. Svoboda stated that welding of damaged equipment would be permitted.
Mr. Slavin asked if the definition of minor repair would allow the repair of damaged fenders,
hoods or other body parts of a construction vehicle.
Mr. Svoboda replied that it would.
February 11, 1999
BOARD OF ADJUSTMENT MINUTES
Page 15
Mr. Slavin asked Mr. Jacobs if he made his determination that there was no evidence of the
storage of landscape materials on the subject site based upon his examination of aerial
photographs and one site visit.
Mr. Jacobs stated that it was based on the aerial photographs and the site visit to the property in
December 1996,. and the information,submitted.in various exhibits..as part,of the overall case.
Mr. Jones asked Mr. Svoboda: If the Flemings had, between 1970 and 1979, applied for a legal
use permit with Maricopa County would he be there tonight.
Mr. Svoboda responded that he was not aware that the County zoning ordinance during that time
period would have required or permitted the property owners to apply for a conditional use
permit. But, if the use was documented in an official manner with Maricopa County that it was
permitted, then,no,we would not be here this evening.
Mr. Slavin then gave his presentation. He submitted for the record a packet of letters and a
number of photographs which he distributed to the Boardmembers. He identified the source and
address of each of the letters all of which were neighbors of the Flemings. He then asked Mrs.
Fleming a number of questions about the photographs which were just submitted. The
photographs depicted the area in question, the surrounding area and the equipment and
machinery found on the area in question.
Mr. Slavin asked Mrs. Fleming a number of questions.
Mrs. Fleming stated that she and her husband purchased Parcel A in December 1970, moved
their business, T & N Grading, there in 1971 and have operated the business there continuously
since then. She stated that she recalled first storing semi trailers on the property in 1976 and
stated that they have been storing trailers there ever since. She stated that they have stored other
contractors' equipment on their property and that this storage function began in approximately
1973 and has continued through the present time. She stated that they first became involved in
storing trailers and tool boxes for Bechtel Tool Corporation in the fall of 1977. She described
the trailers and stated that their work for Bechtel involved sorting, inventorying and replacing
tools and shipping the tool trailers and boxes to job sites. She stated they also, on behalf of
Bechtel, transferred tools from one trailer to another and replaced broken or missing tools as
needed. She stated that they performed this service for Bechtel both before and after 1979. She
stated that these services were the same services that they provided to other customers.
Mrs. Fleming then described the storage service they provide for M & C Showers. She stated
that they park two tractors and three units on the property while not in use at job sites. She then
described the trailers and their uses. She stated that the trailers often don't leave the property for
months at a time although each of them does leave the property for emission tests. She stated
that during the fire season they could be gone for months or come in and out of the lot as needed,
depending on the amount of activity during the season. She stated that M & C keeps daily log
February 11, 1999
BOARD OF ADJUSTMENT MINUTES
Page 16
books showing the mileage of their trailers and that the log books would be available to the City
of Glendale for inspection.
Mr. Slavin referred to Exhibit 44C; a letter dated May 19, 1998, addressed by Mr. Slavin to Mr.
Jacobs. He asked Mrs. Fleming if page 2 accurately described the types and numbers of pieces
of equipment<owned or..rented-by T &.N Grading and used by the-business...She stated that it did
and added that these numbers did fluctuate over time depending on the construction business.
She stated that they did buy new equipment when necessary to update their existing equipment.
She then described the maintenance and repair work done to the equipment on Parcel A. She
stated that Mr. Fleming does all of their repair work, including body work and the replacement of
engines from time to time and that he has always done so.
Mrs. Fleming stated that from time to time T & N Grading stores used or salvaged landscaping
on their site and that doing so is a regular part of their business. She described the material to
generally be granite,boulders, trees,plants, etc.
Mr. Slavin asked Mrs. Fleming to describe her relationship with her neighbors. She stated that
they have always had a very good relationship with their neighbors. She stated that they have in
the past performed work for their neighbors whenever asked to do so. She stated that they never
received complaints from any neighbors but the Randalls and the Jones. She stated that their
relationship with the Randalls was always very good until 1996 when the Randalls learned that
they were trying to get a determination of their legal non-conforming rights. She stated that the
hours of the day during which T & N's equipment was generally dispatched from the property
were from 6:00 a.m. in the summer and 6:30 a.m. in the winter returning at approximately 4:00
p.m. She stated that they usually bring their equipment in from the job site at night for security
purposes.
Mrs. Fleming stated that they do not allow the overnight parking of semi-tractors and trailers on__
their properties. She stated that there has probably been less movement of these vehicles in 1997
and 1998 than prior years. She also stated that they have no plans to open a truck depot business
on their property.
Mr. Slavin then asked Mrs. Fleming about Exhibit 32, dated August 20, 1997, from Mrs. Gwen
Cleary. She stated that Mrs. Cleary informed her that she wrote the letter but that it was dictated
to her by Mr. and Mrs. Randall. She also stated that the statement in the letter about the
schoolbus picking up kinds in front of Mrs. Cleary's house was incorrect — that the schoolbus
never picked up kids there.
Mr. Slavin asked Mrs. Fleming if she was familiar with Orlando Jones, who once owned Parcel
B from the early 1980's until he sold it to the Flemings in 1992. She stated that she knew Mr.
Orlando Jones and that he rented the property to various contractors and that they would bring in
mobile homes and strip the aluminum off of it and dump the trash on the property. She stated
that she and her husband complained to the City about the trash being dumped on the property.
She did not recall the name of the person she spoke to in Code Enforcement,but stated that Code
February 11, 1999
BOARD OF ADJUSTMENT MINUTES
Page 17
Enforcement told her that everyone in the area was doing like things and that property had rights
and they weren't going to do anything about it. She stated that Mr. Jones used the property in
this fashion until he sold it to the Flemings in 1992. She stated that to her knowledge the City
never attempted to shut down Mr. Jones' use of the property. She stated that until 1996 she and
Mr. Fleming never received word from the City that they were violating the City zoning code.
She stated thatupon buying it,..they. spent $5,000 cleaning,it up. She.stated that they stored
contractors' equipment and materials continuously since they purchased it and that they did so
because the City told them that Mr. Jones could do it and they assumed they could do it also.
She stated that Parcel B was, on occasion, used to park vehicles when the Saddle Club area was
full and that it occurred almost exclusively on weekends and evenings.
Mr. Slavin then asked questions of Mr. Robert Seuer, 6955 W. Calavar Road, Peoria, who had
rented property in the vicinity of Parcels A & B. He referred to a photograph which he
displayed. He stated that while he rented it, he allowed carnival people to store their equipment
on it for approximately two years. He stated that his landlord, Mr. Bushong, threatened to evict
him for storing equipment there because it was not in compliance with the City of Glendale's
zoning. He stated that he called the City of Glendale and asked why the people on Parcel B did
not have to comply with the zoning. He stated that someone from the City of Glendale informed
him that Parcel B was grandfathered and the City had no jurisdiction over it.
The City then cross-examined the witnesses.
Mr. Pennartz asked Mr. Seuer if he had the name of the person from the City of Glendale who
told him Parcel B's use was grandfathered. Mr. Seuer stated that it was someone in Code
Enforcement but he had no name. He also stated that he did not have the statement in writing.
When asked by Mr. Pennartz if he ever made a formal request to the City for determination of
zoning rights on Parcel B,Mr. Seuer replied that he did not because he did not own the property.
Mr. Pennartz asked if Mr. Seuer had ever seen a formal determination by the Planning Director
of whether or not there were grandfathered rights on Parcel B. Mr. Seuer responded that he had
not; he just took their word for it.
Mr. Pennartz asked Mrs. Fleming about her call to the City regarding trash and bugs on Parcel B.
She stated that as the trailers were stripped and the trash dumped, debris and wood products were
being piled up against their western fence. She said it was causing quite a problem with
scorpions, cock roaches and snakes. So,they called the City to complain.
Mr. Pennartz asked her if she was aware that the County Health Department is the agency that
deals with vector control.
Mrs. Fleming replied that they called vector control, too. She stated that she still had the card
from vector control because they came out to the site and looked at it. But, they said there were
no breeding flies and didn't feel it was quite the problem the Flemings felt it was. She
maintained that nevertheless it was still an eyesore.
February 11, 1999
BOARD OF ADJUSTMENT MINUTES
Page 18
Mr. Pennartz asked if she ever filed a written complaint to the City of Glendale with regard to the
activities on Parcel B.
She stated that she did not.
Mr. Pennartz asked if she ever got a written response to her phone call to the City of Glendale.
She answered no. She stated that all she got was a verbal response that everybody in the area did
it and if they all had the right to do it, so did this gentleman.
Mr. Pennartz asked if she ever requested a formal determination by the Planning Director of
grandfathered rights on Parcel B.
Mrs. Fleming stated that she didn't know that was even possible.
Mr. Pennartz then asked if, prior to purchasing Parcel B, the Flemings made a formal request of
the City of Glendale to determine whether that property would have grandfathered rights.
Her response was no. She stated that they based it on past conversations they and Bob Seuer had
with the City.
Mr. Pennartz asked if the Flemings looked at the zoning ordinance or inquired as to what the
zoning ordinance of the property was.
She stated that they assumed it was the same as their other parcel which was A-1.
He then asked if the parking of vehicles near the Saddle Club occurred before or after they lived
next door.
She replied that it was after they moved there.
Mr. Pennartz asked how long it had been since the property had been used for parking.
She replied that she didn't know.
He asked if she thought it might be about fifteen years ago and she responded that it probably
was.
Mr. Pennartz then asked Mrs. Fleming if they had produced any business records regarding
storing other contractors' equipment on Parcel A.
She stated that she did submit business records back to 1984. She referred to Exhibit 28.
February 11, 1999
BOARD OF ADJUSTMENT MINUTES
Page 19
Mr. Pennartz asked when Bechtel last had any trailers or equipment stored on Parcel A.
She stated that she believed it was 1995.
Mr. Pennartz then referred to Exhibit 24, dated December 3, 1996, from Bechtel Construction. It
stated that the use was.from.1986_to.199.1.
Mrs. Fleming stated that it was for that division of Bechtel. She did it for several divisions.
Mr. Pennartz asked if Mrs. Fleming submitted any records showing how often M & C Showers'
trucks went in and out.
She stated that she did not.
He asked her if she submitted any records showing when Bechtel stopped using the facility.
She stated that she didn't provide anything specific as to the date their truck was last in there.
Mr. Pennartz asked if any parts invoices or other records were submitted to show that major
repair was performed on T &N equipment.
Mrs. Fleming stated that none were requested but she could show them thousands of dollars
worth.
He asked if she had submitted documents showing that storage of landscape materials had been
done for any landscaping business other than T &N.
She replied that they don't do it for other landscaping businesses.
Mr. Jones then cross-examined the witnesses.
Mr. Jones brought attention to the fact that there are two Mr. Jones's. One being Orlando Jones
who had owned Parcel B and the other being David Jones a current neighbor of the Flemings.
Mr. Jones referred to Exhibit 32. He asked Mrs. Fleming if she had stated that the school bus
had never picked up children in front of that house.
She stated that they had never picked up children there since 1977. She stated that since they had
the regular bus stop it has always been at 63rd Avenue and Greenbriar.
He asked Mrs. Fleming to tell him in her own words what Mrs. Cleary said about writing the
letter.
Mrs. Fleming replied that Mrs. Cleary stated it was written at the request of the Randalls.
February 11, 1999
BOARD OF ADJUSTMENT MINUTES
Page 20
He asked why they didn't apply for a use permit regarding the various uses being exercised in the
1970's or from 1970 to 1979.
She stated that when they bought in that area, they talked to the County and were told that there
were already like.businesses in_the.area:and..it.was..an appropriate.:areafor it. The County did not
tell them they needed a use permit.
Mr. Slavin then stated that he would like to use some of his remaining time to ask one question
of Mrs. Fleming. He asked her if anyone at the City ever stated that they would be limited to
fourteen day intervals in terms of when equipment, after leaving the site,may return to the site.
She answered that the letter they received was the first indication of that. She also stated that if
she had thought the documents regarding M & C Showers were pertinent, she would have
provided them.
Mr. Pennartz stated that since October 6, 1998, the 14 days has been an issue. He then asked if
she brought those records with her.
She responded that she did not. She then stated that the records were there after all.
Chairperson Cheniae stated that if the records were there and could be made part of the record,
then they should be so.
It was determined that the representative from M & C Showers had a spare copy of his records.
They were then submitted for the record.
Mr. Jones then began his presentation. His assistant introduced himself as Steven Jones, David
Jones' son.
Mr. Jones stated that the first thing he wanted to point out was the significance of the term legal
or lawful and asked the Board to be careful of the context in which it was being used. An
activity done in a lawful manner within the boundaries of a parcel does not establish legal use
rights or legal non-conforming use rights for that parcel. He then referred to Exhibit 1, page 1,
section A and read the statement: "At the time of annexation, the Flemings were lawfully
conducting various uses." He said the only possible way that statement has any validity is that
the uses being performed within the boundaries of this parcel were being done in a legal manner-
not that they were legally permissible to be carried on at that parcel. The only lawful use of the
property was possibly a mobile home residence for which they received a permit. He then
referred to the overhead which showed part of his presentation. He made reference to a
hypothetical situation on a parcel of land with Rural Residential zoning which is annexed into the
City. On the day of annexation, the parcel owner sold a car from his home after installing a for
sale sign in his driveway. This was a legal activity. The next day, the property owner requested
February 11, 1999
BOARD OF ADJUSTMENT MINUTES
Page 21
legal non-conforming use of the parcel for retail auto sales arguing that at the time of the
annexation,he lawfully conducted the business of auto retail sales. The request was denied.
Mr. Jones stated that the activity engaged in on the parcel was lawfully conducted at the time of
annexation. This act of making a lawful transaction in the sale of an automobile does not
establish legal use rights.for.the,property. These.areregulated by.law,._passed by municipalities
for public welfare. They are either granted in the use regulations stated in the ordinances or
petition is made for special use.
He stated that he would then examine what uses this property could be engaged in legally,
without any special use permits. He stated that it's noted in the testimony that at the time of
annexation the land was zoned County Rural-43 District. He then referred to various portions of
Exhibit 9, starting with page 2, and read section 601 which stated in part: Purpose. The principal
purpose of this zoning district is to conserve and to protect farms and other open land uses, foster
orderly growth in rural and agricultural areas, and prevent urban and agricultural land use
conflicts. He then read section 602 which stated: The use regulations are the same as those in the
"Rural-190" Zoning District. He then read from page 4, Article VI, (Rural-190), Section 401:
Purpose. The principal purpose of this zoning district is to conserve and protect farms and other
open land uses, foster orderly growth in rural areas, and prevent urban and agricultural land use
conflicts. Then, from section 402 Use Regulations: —A building or premises shall be used only
for the following purposes: Single Family Dwellings and Farms, as defined in Article II.
He then referred to the 1969 Amended Zoning Ordinance for the unincorporated areas of
Maricopa County. He stated that Article 2 defines Farms— an area of not less than 2 continuous
acres which is used for the commercial production of farm crops such as vegetables, fruits, trees,
cotton, grain or other crops and their storage on the area as well as the raising thereof of farm
poultry and farm animals such as horses, cattle, sheep and swine for commercial purposes. The
term farm includes the operating of such an area for one or more of the above uses including
dairy farming with the necessary accessory uses for treating or storing the produce provided that
the operation of such accessory uses is secondary to that of the farm activities and provided
further that the farm activities do not include commercial pen feedings and commercial feed lots
and so forth.
He stated that there is no allowance for a commercial lawn and maintenance service or a
commercial repair and maintenance of semi tractors and semi trailers,brake repair, etc. Nor for a
commercial grading business, or commercial tool trailer storage or commercial general storage.
He stated that it is the Director's opinion that some of the above mentioned should be allowed
when the law says they should not be allowed.
Mr. Jones then handed out a sheet titled "Rotter vs. Coconino County" and stated that non-
conforming land use is commonly defined as lawful use maintained after effective date of zoning
ordinance prohibiting such use in the applicable district. He placed a great deal of emphasis on
the terms legal and lawful and how they apply to the phrase legal, non-conforming use. He
stated that the Flemings purchased the property in 1970, one year after the enactment of the 1969
February 11, 1999
BOARD OF ADJUSTMENT MINUTES
Page 22
Amended Zoning Ordinance for the unincorporated areas of Maricopa County. The lawful use
regulations were already well established for their parcel prior to their purchase of it. He then
read the following: A person who purchases land with knowledge, actual or constructed, of
zoning ordinances which are in effect at the time of purchase is said to have created for himself
whatever hardship such restriction entails. He then stated that it is the intent of all zoning
ordinances that non-conforming uses should be.eliminated.or reduced.to conformity as quickly as
possible within the limits of fairness and justness.
Mr. Jones stated that the Flemings' violations are serious and blatant, carried out with no
consideration for existing ordinances and use regulations. The occupants willfully attempted and
thus far succeeded in creating illegal uses unsupported by any standard of law. He referred to the
Planning Director's analysis found on page 6 of the staff report. He addressed each bullet
beginning with
Bullet 1: Was the land use established prior to annexation of the property? Mr. Jones stated that
it was.
Bullet 2: Was the land use substantial in nature to give notice to property owners in the
surrounding area? Mr. Jones stated that the finding was yes. But, he stated that the area was
very sparsely populated at the time(1970).
Bullet 3: Were substantial site improvements related to land use made with reliance on the
continuance of the land use? He found first of all no,regarding reliance. His second finding was
that stated that Rotter vs. Coconino County didn't think so either. His third finding was yes
regarding single family dwelling use.
Bullet 4: Was the land use in question legal under the Maricopa County zoning regulations when
the property was originally developed? His finding was absolutely not and referred to the use
regulations permitted in Exhibit 9, Article VI, Rural 90. He stated that if illegality could ever
establish legality, the intent of the law could never be achieved. The law would be frustrated.
Bullet 5: Did any land uses substantially expand in land area after annexation? He found that the
land use had fluctuated.
Bullet 6: Were new non-conforming uses added to the site after annexation? Finding: No. None
ever existed.
Bullet 7: Did the land use change in character so as to result in a loss of non-conforming use
rights? He found that this parcel never had non-conforming rights to lose.
Bullet 8: Has the land use been continuously maintained since annexation? His finding was yes,
in regard to single family residence. Then he stated that some illegal uses apparently have not
ceased while others have.
February 11, 1999
BOARD OF ADJUSTMENT MINUTES
Page 23
Bullet 9: Were any potential non-conforming uses lost by not operating for any continuous one
year time period? He stated that this parcel has no non-conforming uses, only legal and illegal.
Mr. Jones then cited the Planning Director's statement on page 7 of the Staff Report. It stated
that tool trailer storage and inventory would not be recognized as an additional land use.
Mr. Jones then commented on the bullets pertaining to Parcel A (Landscape and Grading
Contractor):
Bullet 1: A landscape and grading contractor was operating on the property prior to annexation.
He stated that this use has no legal standing.
Bullet 2: The landscape and grading contractor land use was substantial in nature so as to be
known by adjacent property owners. He stated that he disagreed with this opinion.
Bullet 3: Substantial investments and site improvements were made in reliance of the land use.
He stated that this argument is irrational. The occupant never obtained non-conforming use
rights.
Bullet 4: For the purposes of this decision the City accepted the use as being legal in Maricopa
County. He stated there is no basis in law for this decision and quoted from Article IV, Rural 43,
Exhibit 9.
Bullet 5: The landscape and grading contractor use has operated in the same general area since
before annexation. Mr. Jones stated that they have operated illegally without ever obtaining a
legal use permit.
Bullet 6: The landscape and grading contractor land use has not changed in character so as to
result in a loss of non-conforming use rights. He stated that it never had any non-conforming
rights.
Bullet 7: The landscape contractor use has been continuously maintained since annexation. He
stated that the legal conducting of a landscape contracting business could never affect a right
regarding the use of the parcel. The two items are not legally connected.
Chairperson Cheniae informed Mr. Jones that he had eight minutes to conclude his presentation.
Mr. Jones then brought Beedie Randall as a witness.
Mr. Jones asked her about pictures she took in 1996 and sent to the City.
Mrs. Randall stated that they were pictures of semis and big trucks which they hadn't seen before
in the eleven years they had lived there. She stated that they had seen T & N's trucks but not
these. She stated that they were alarmed about it. She stated that the trailer business is very
February 11, 1999
BOARD OF ADJUSTMENT MINUTES
Page 24
dangerous. She stated that the trailers would be only forty-five feet from the end of their house.
She stated that the noise factor is a concern, also. She then stated that she and her husband share
a driveway with the Flemings. She also stated that they were not comfortable letting their
grandchildren play in the front yard.
A ten minute break was then.called..The meeting resumed at 11:00 p.m. .:.,
Mr. Pennartz was given the opportunity to cross-examine the witnesses. He stated that he had no
questions.
Mr. Slavin the cross-examined Mr. Jones.
He asked Mr. Jones how long he lived in the neighborhood.
Mr. Jones responded that he was there since 1982.
Mr. Slavin stated that Mr. Jones was not living there at the time the Flemings first moved on to
their property.
Mr. Jones agreed.
Mr. Slavin asked if Mr. Jones had ever visited the Flemings' property other than one month
prior.
Mr. Jones stated that he had been to their property to ask if they would do tractor work.
Mr. Slavin asked if Mr. Fleming performed tractor work for Mr. Jones.
Mr. Jones stated that he performed excellent tractor work.
Mr. Slavin asked Mr. Jones if he heard Mrs. Fleming testify that they dispatch their equipment
and they return late afternoon.
Mr. Jones stated that he did.
Mr. Slavin then asked Mr. Jones if he knew what time of day the aerial photographs were taken.
Mr. Jones said he did not,but if necessary would try to get that information.
Chairperson Cheniae then opened the session up to the Boardmembers to ask questions of the
witnesses or representatives.
Boardmember Neyer asked Mr. Svoboda if legal non-conforming rights transferred with the sale
of the property.
February 11, 1999 .
BOARD OF ADJUSTMENT MINUTES
Page 25
Mr. Svoboda responded that the answer was yes, if the legal non-conforming rights had been
established they run with the land not with the owner.
Boardmember Sutton referred back to Rotter vs. Coconino County. He asked if they have to
meet the County..zoning.requirementsprior.to annexation to obtain legal non-conforming rights
for the City.
Mr. Pennartz stated that the lawfulness from the standpoint of establishing legal non-conforming
use rights has to do with whether the use that was maintained at the time was legal under County
zoning regulations at that time.
Boardmember Gitelson asked Mrs. Fleming when Bechtel first started using the property.
She stated that it was the fall of 1977.
Boardmember Gitelson asked if there were any evidence showing that Bechtel was there in 1976.
She replied that most of their records from that time period had been destroyed. She stated that
some of her invoices showed that they worked for Bechtel Civil, Bechtel Construction and
Bechtel Engineering.
Boardmember Gitelson asked if she ever asked Bechtel to produce a letter to indicate that they
started earlier than 1984.
She replied that she didn't.
Boardmember Gitelson asked when the fire trucks (M& C Showers) were first on the Fleming
property.
She replied that it was approximately 1993 or 1994.
Boardmember Gitelson asked if there were any other trucks or anything else that is stored there.
Her response was no. She stated that currently all of the Bechtel trucks are out on job sites.
He asked Mrs. Fleming what they wanted to continue to do in regard to Parcel B.
She replied that they wanted the City to recognize the right that they felt they obtained when they
bought it. She stated that they bought it with the reliance that it had always been an equipment
yard.
Boardmember Gitelson asked if her contention that from the time they purchased it in 1992 they
had equipment stored on the property just like the prior owner did.
February 11, 1999
BOARD OF ADJUSTMENT MINUTES
Page 26
She stated that this was so.
Boardmember Piceno asked when Mr. Orlando Jones started "cannibalizing" trailers on his
property.
She replied that it began in 1987.
He asked about her statement of the 30 gallon drums whose contents were unknown.
She stated that they were 50 gallon drums which had to be treated as hazardous waste since they
didn't know what was in them.
He asked her how they disposed of them.
She replied that they had to be taken to a hazardous landfill.
He asked if they had to obtain a special permit for that.
She replied that it is done in the course of their work and they already had a permit.
He asked her if the documentation was furnished to the City.
She replied that it was not. She didn't believe it was necessary. It wasn't a City landfill that it
went to.
He asked about her statement regarding the City not having sales tax records of the land rental
for parking trailers.
She responded that they didn't have the sales tax records. They have had commercial trash
service from the City since the day they were annexed in under their business name.
Boardmember Piceno asked if they submitted documentation to the City with respect to
employing heavy duty mechanics.
She responded that her husband is the mechanic.
Boardmember Piceno asked if they submitted workmen's compensation reports to the State.
She replied that they do.
He asked if the documentation was submitted to the City.
She replied that it wasn't.
February 11, 1999
BOARD OF ADJUSTMENT MINUTES
Page 27
Boardmember Drew asked what's the difference in the City between major and minor repair
work of this type on a piece of property?
Mr. Pennartz responded that the zoning ordinance defines both. He then read both definitions.
Major vehicle repair: the service and repair of major components of vehicles, including engines
and transmissions. These vehicles may include automobiles, boats, motorcycles, trucks, motor
homes or travel trailers.
Minor vehicle repair: an establishment which provides minor service and maintenance of the
ancillary systems of vehicles, including accessories, lubrication, minor repair and tune-up of
engines, and/or washing and polishing services.
He then stated that if there were a need in a particular case to make an interpretation on a piece of
property,the Planning Director would do so. But, that's what the ordinance says.
Chairperson Cheniae asked Mr. Pennartz if there were any major repairs made to the equipment
used in their business on the property prior to annexation, or 1979.
Mr. Pennartz responded that they didn't have anything in the record that specifies what types of
repairs were made prior to annexation.
Chairperson Cheniae then asked the same question of Mrs. Fleming.
She responded that her husband changes transmissions and motors and does rear ends on tractors
and on construction equipment.
He asked if she had documentation of that.
She replied that she has lots of bills for the parts,but no bills for labor since her husband does the
work.
Boardmember Drew asked Mrs. Fleming if they owned any double-axle vehicles.
She replied that the question should be directed to her husband.
He replied that at that time they did not.
Boardmember Sutton asked Mrs. Fleming if her drivers have hazardous material endorsements.
She replied that they don't.
He then asked if the Flemings are federally licensed for transportation of hazardous materials.
February 11, 1999
BOARD OF ADJUSTMENT MINUTES
Page 28
She replied that they are not.
Boardmember Neyer asked Mrs. Fleming what went on in Mr. Orlando Jones parcel before they
were"cannibalizing"trailers.
She replied that prior to that it sat vacant,but occasionally the spillover from events at the Saddle
Club would park there.
Boardmember Neyer then asked what trailers would go up and down the street.
Mrs. Fleming replied that it would be M & C Showers trucks and that it would be only those two
units which go out periodically.
The public was then given the opportunity to speak.
James H. Randall, 17255 N. 63rd Ave, stated that it's only 45 —48 feet from their garage and they
have grandkids that visit and play out there. He stated that it downgrades their property and they
couldn't even sell it if they wanted to.
Beedie Randall, 17255 N. 63rd Ave, stated that regarding the 14 day in and out, if you had ten
trailers coming and going, that would result in one of those vehicles on the road every day. She
then asked who is going to monitor the movement of the trailers.
•
Lee Wheeler, 6311 W. Grovers, stated that he has known the Flemings for almost 20 years. He
stated he had never seen a place that was running a small construction that was so orderly and
neat. He stated that when you drive down 63rd, 61' Greenbriar or Bell you can't see any of those
trailers. He stated that the Flemings are great community people. He stated that when
Greenbriar School went up they were all asked to contribute trees to landscape it. The Flemings
almost single-handedly did that. Any time anyone in that neighborhood needed anything they
were there to support them. He stated that the preponderance of people in that neighborhood
want them there and want them to be allowed to keep their business going.
Kathy Gindt, 17250 N 63rd Ave, stated that she really respected and liked all of her neighbors.
She stated that the Flemings operation has never created any kind of hardship on her or her
children. She stated that she supports them in their appeal. She stated that unfortunately this has
created a schism in the neighborhood and it's too bad because the Flemings helped everybody.
Darwin Bushong, 17248 N. 61st Avenue, stated that he lived next to the Flemings for 27 years
and that they are excellent neighbors. He stated that Thane Fleming has always done minor and
major repairs to their trucks. They've always kept their place neat and orderly. He hoped that
the Boardmembers are compassionate to them and realize that this is their livelihood.
February 11, 1999
BOARD OF ADJUSTMENT MINUTES
Page 29
John Klems, 6351 W Campo Bello, asked if everybody read all the letters. He stated that a
couple of questions stuck in his mind. If we're looking to do the right thing, then back in 1979,
two months after they were annexed into the City and they received a cease and desist order from
the City demanding they discontinue Interstate Trailer Service, and yet the City attorney
concluded that the Flemings' use was a legal, non-conforming use and established prior to the
City's annexation tothe property, which_.makes everything,.legal..and,.non-conforming, then the
purpose of this meeting is really to be able to go back and say again what the City might have
only done verbally but did state. He stated that we have a problem of trying to make two
separate neighbors talk to each other. He compared them to the Hatfields and McCoys. He
stated that the City has to get involved here because neighbor A can't make neighbor B happy
anymore. He stated that a letter from the Randalls, which is in the packet, states that the
Randalls say they would have no problem if the Flemings would just put up a block wall on the
west side of the property. He stated that if the Randalls want a brick wall, they should put one
up. He stated that he knew there were trucks going up and down that road when he first moved
in there and that to find them today as you drive up and down the road is very difficult. You
don't see them. They're not a nuisance to the neighborhood, they're a benefit. These are the
kind of the people you want in your neighborhood. He stated that if they lived right next door to
him and he had a problem, he would go talk to them. He asked if there have been violations of
code, why hasn't there been enforcement earlier? He stated that if you can't get neighbor A and
neighbor B to talk to each other and resolve their problems, you're going to be busy until
midnight a lot of nights. He then stated that it's right for the Flemings to be in business and the
neighborhood wants them there.
Linda Sweeney, 17315 N. 64"' Lane, stated that they support the Flemings. She has lived there
for seventeen years. The Flemings are willing to come any time anyone needs them. She stated
that they travel that road all the time and never sees any trucks. She is in full support of the
Flemings and thinks that the neighborhood is behind them.
Bill Sweeney, 17315 N. 64th Lane, stated that he appreciated the people on the Board who take
this time every night. He and his wife have known the Flemings a long time and have seen no
impact from the traffic. He stated that he and his wife have invested over half a million dollars in
their property which is less than one eighth of a mile from the Flemings. If people are worried
about the impact to their property taxes, he didn't think the Flemings' down draw is going to be
quite as much as what his house is going to do for them on the upside. He stated that the
Randalls neglected to mention that fifty feet out their front door is 63rd Avenue with kids in cars
going 70 miles per hour. He stated that it's a situation where a couple of neighbors are unhappy
with another who had an existing use. He stated that he felt a Board of their stature would be fair
and just to all parties involved.
Sue Browning, 6121 W. Michelle, stated that her daughter has been friends with the Flemings
daughter for a number of years. She didn't think she had ever seen more than two trailers,
usually one, at their house whenever she has gone there and she never saw any activity of any
vehicles moving anywhere when she's gone to their house. She travels 63rd Avenue a minimum
of four times a day and has never seen a tractor trailer go in and out of their property. She stated
February 11, 1999
BOARD OF ADJUSTMENT MINUTES
Page 30
that on a fairly regular basis she has noticed that the Randalls have garage sales on their property,
usually every two or three months. She stated that the Flemings are really good people, they
have a good business and she fully supports their situation.
Robert D. Seuer, 6955 W. Calavar Rd, stated that he's known the Flemings since the early to
mid-seventies and at one time rented their yard withhis equipment.._.They're really good people.
He stated that he did rent there and there has been activity there ever since. He then rented from
Mr. Bushong for almost ten years and stored stuff there. He was up and down that road all the
time and it's never been a nuisance.
Boardmember Piceno asked Mr. Seuer about the time he had to move his trucks because of code
enforcement. He asked if Mr. Seuer ever tried to put his trucks on Parcel B.
Mr. Seuer stated that he did not.
Debby Fleming, 6135 W. Greenbriar, stated that she is an owner of Fleming Trailers and that
Thane and Nancy Fleming are her brother-in-law and sister-in-law. In the early 1970's they were
young and theyall made the same mistakes. They didn't get anything in writing. The County
did tell them they could do what they were doing. She stated that someone remarked if you have
money you can do anything. But, they bought the land and worked themselves to death to keep
it and their husbands worked two and three jobs. She stated that when they got their non-
conforming letter it was because they had to have proof that they were commercial property in
order to get their dealer license. She stated that Thane and Nancy Fleming have never changed
anything. The only thing that increases or decreases their work is construction and the state of
the economy.
Boardmember Gitelson asked Mrs. Debby Fleming when she got her letter of non-conforming
rights.
She believed it was 1982. She stated that they've been building trailers since they moved on to
their property in the 1970's.
Boardmember Gitelson asked if she shared with her sister-in-law that they were getting the
conforming letter because they needed to have it.
She stated that Thane and Nancy Fleming knew they were getting the letter and that they needed
it because they needed their dealer license. Thane and Nancy had no reason to get one. She
stated that when the City came in they knew exactly what they were doing. The City visited their
property. They stated they were not changing anything, they were just taking over the area.
Marcus Strickland, 14802 N. 79`h Lane, stated that he is the owner of the trucks that go in and out
of there. He stated that one of the trucks left May 16th and came back October 215`. It wasn't
there at all this summer. He stated that as far as the Randalls' concern about their grandchildren
goes, if there was a child anywhere near the driveway, he would pull all the way to the North
February 11, 1999
BOARD OF ADJUSTMENT MINUTES
Page 31
side. Kids are very high priority and there is no way he would run over a child with his truck.
He stated that his trucks first showed up in October, 1995. They come in for the winter every
year. He stated that a large number of delivery trucks use that road every day.
Chairperson Cheniae asked him if the 14 day ingress/egress restriction would be a problem for
him. _
He replied that it would be a problem.
Boardmember Drew asked him how often he moves the tractor and tanker.
Mr. Strickland replied that the tractor has been out there 18 times since October 215`and probably
12 times it's had the tanker behind it.
Ray Freeland, 16030 N 43rd Ave, stated that he is the president of the corporation that owns the
Black Canyon Saddle Club. He agreed with allowing the Flemings to proceed with doing what
they're doing. He did object with their plans for Parcel B. He said it's just a big junk pile.
They've tried numerous times through the City to make them clean it up and move it out. He
stated that he spoke with Dan Fairbanks about it numerous times. He stated that nobody has
parked on that property since they fenced it in back in the early 70's. He stated that he spoke
with Mrs. Fleming about the junk several times. He stated that he would like to see the Flemings
stay where they are but did not agree with allowing the Flemings to use Parcel B as a parking lot
for semis. He stated that the zoning out there stinks and it's time the City zoned the area as it's
supposed to be.
Mr. Slavin asked Mr. Freeland about an aerial photograph. He asked him to identify the Saddle
Club property and then asked if the picture showed a three-tandem wheel trailer and another
trailer on the site.
Mr. Freeland stated that it did.
Mr. Slavin then asked him to identify an object that looked like an old house.
Mr. Freeland replied that it was an old concession stand that had two bathrooms and a
kitchenette.
Mr. Slavin questioned him about another object in the photograph.
He replied that it's a box off an 18-wheeler that they use to store things in.
Mr. Slavin then questioned him about something that looked like weeds growing along Mr.
Freeland's fence.
Mr. Freeland stated that most of them appeared to be on his property.
February 11, 1999
BOARD OF ADJUSTMENT MINUTES
Page 32
Mr. Slavin then asked Mr. Freeland if he was saying that the stuff on the Flemings' property is a
problem,but the stuff on his own property was okay.
Mr. Freeland replied that he had him there.
Mrs. Freeland, 16030 N 43rd Ave, then spoke. She stated that there is a big difference between
what's on the Flemings' property and what's on the Freelands' property.
Linda Handeland, 17802 N. 63rd Ave, stated that she has lived there for about five years. She
stated that she drives down 63rd Avenue and has never seen one of the Flemings' trucks. It is a
very neat property. She does not believe that their trucking company is a hazard to anyone. She
also stated that no school bus ever stops where Mrs. Cleary stated that it does.
Mr. Pennartz then gave his closing statement. He stated that we're here about a land use issue
and we're here about what the evidence shows. But, we're not here about who's a good person
and who's not. He stated that what will happen tonight is the Board will make a decision based
on the evidence that's in front of them and upon the law. It cannot be based upon whether they
like one person more than another. He referred to page 6 of the staff report which lays out the
basic factors for non-conforming uses to be granted grandfathered rights. With respect to Parcel
A, the evidence seems to be very clear that the Landscape and Grading contractor was there prior
to annexation and has been continuously since. The real problem is in making sure that it
doesn't transition into some other use. He stated that there was no evidence that they had ever
stored their own materials there. The Board must make their best judgment call on it. But, if it's
granted it must only be an ancillary use to their own operation of their own landscape contractor
business. With regard to the issue of the trailers, there is some evidence that some trailer storage
was on there at the time of annexation. He stated that it's the Board's responsibility to determine
if the Director struck the right balance. He stated that non-conforming rights go with the
property, not with the person. He stated that the 14 day restriction was based on the Director's
judgment while trying to allow some flexibility to have the business but not have overnight
parking. He stated that it needs not be a trucking depot.
He then stated that with regard to Parcel B, the use was not being made at the time of annexation.
It was admitted in both the Exhibits and on the record. That use did not start until the 80's. You
can't grandfather something that wasn't existing prior to annexation. It was illegal when it
started under City zoning regulation. From the City's standpoint there is no basis for
grandfathered rights on Parcel B. On Parcel A, T &N Grading appears to be documented. The
trailer storage is a more difficult question.
Mr. Slavin then gave his closing statement. He stated that he made some modifications to the
Planning Director's letter in regards to Parcel A. The proposed revisions were as follows:
Page 2,bullet 1: strike the word minor.
February 11, 1999
BOARD OF ADJUSTMENT MINUTES
Page 33
Bullet 2: regarding the construction being parked only when not being used. If the equipment is
not secure, it is returned to the site.
Bullet 5: types of vehicles. They asked that the words that were singular be changed to plural.
He also struck the word single-axle because at times they may need to use double-axle vehicles
because he.felt it unduly restricted theFlemings.
Last bullet: They asked that the words "removed landscaping or new landscaping material should
not be permitted on the site" be removed. He stated that they do not store any landscaping
materials for any company other than their own.
Page 3, Bullet 1: there has been testimony that there has been more than semi trailers. Pictures
also show this. They think that trailer storage should be trailer storage,period. The maximum of
10 trailers was something that they agreed to. However, the number fluctuates. It is sometimes
as high as 25.
Bullet 3: they have serious problems with the 14-day restriction. If they would like to state that
it shall not be a freight or truck depot, that's fine. They also agree that there shall be no
overnight parking. That is not their intention.
Next is the bullet which says the storage of trailers shall not include loading or unloading. The
Bechtel evidence and Exhibit 23 says that off and on they have been storing and inventorying
their trailers. He stated that this began prior to 1979. They perform this function and have been
doing so since the 1970's.
Also, the statement that says no vehicles are to be stored on any of the trailers within the storage
area. They have submitted photographs which show that they store equipment on flatbed trailers.
It is consistent with the storage they do with their trailers. He stated that the Planning Director
did a wonderful job with the letter. He stated that he thought they needed to do some tweaking
of it. He stated that the County informed the Flemings that their use was legal. He stated that
the grading and landscaping and the trailer storage should be permitted.
Regarding Parcel B, the Flemings are in a very interesting situation with this Parcel. They
contacted the City and the City told them it was grandfathered. He stated that Mr. Seuer also was
told it had been grandfathered. He believes there is strong reason to be fair with regard to what's
going on with storage. They offered to erect a block wall to shield it if it's a problem. They
have invested a great deal of money on this parcel.
A five minute break was called and the meeting reconvened at 12:45 a.m.
Mr. Jones then gave his closing statement. He referred to Exhibit 44, page 2. He stated that the
law hasn't been emphasized regarding these parcels. He stated that the City set the precedents of
ignoring the law, redefining it and making their own application. He stated that they had the law,
and they rejected it. We'll be left with generalities and people can do whatever they choose to
February 11, 1999
BOARD OF ADJUSTMENT MINUTES
Page 34
do. He stated that the Flemings are great people. But, that's not what this is about. It is about
the use of the land.
Boardmember Piceno then asked Mr. Svoboda if he would respond to the proposed revisions that
Mr. Slavin put forward.
Mr. Svoboda stated the following:
Page 2 with regards to the
ls`bullet:
Basically the modification there would be to strike the word "minor". We have no objection.
We believe that there has been sufficient testimony to add some support and credence to that.
2nd bullet:
Regarding the striking of the words "The majority of the construction equipment remains on the
various work sites and is parked on the property only when not being used." We also believe
that based on the testimony this evening and further evaluation of the record that that is
reasonable.
4th bullet, 2nd paragraph:
regarding the adding of plurals to the various equipment is certainly a minor modification. We
have no objection. And actually striking the words "single axle" which would permit the dual
axle trucks we also believe to be reasonable.
With regard to the last bullet:
"The storage of construction debris" and the reference to removing the landscaping or new
landscape material, in other words striking that, we don't believe that there has been any credible
evidence entered to the record in the form of aerial photographs, documentation, business
records, whatever, that indicates that there has been on an ongoing basis over the years a
substantial amount of landscape storage whether it be new material or used in relationship with
the business. We simply don't find any evidence of that. The only testimony that you've heard
is from Mrs. Fleming and while we certainly don't doubt that again, we're here to deal with
tangible evidence. Be that as it may, it's not unusual for a landscape and grading contractor to
have as an accessory to that primary use, storage of landscape materials. If the board feels that
there has been enough testimony to this fact, then we would suggest for your consideration that
you look at the storage of new or used, for lack of a better word, landscape material could be
stored on the site but only in relationship to the T & N landscape and grading contractor
operation. In other words, this could not be used by other contractors. Secondly, that there
would be no wholesale or retail sales from the site. That in fact, that could only be an accessory
to the landscape grading contractor and it could never evolve into sales from the property.
Moving on to page 3:
February 11, 1999
BOARD OF ADJUSTMENT MINUTES
Page 35
1st bullet:
which would strike the word "semi" and then basically allow a variety of trailers. We believe
that that is reasonable.
2nd bullet:
regarding the..second sentence where it says,`,`one.semi-tractor or trailer hauler. I'm not sure I
know for sure what a trailer hauler is but I think I can guess and I believe that that would be
acceptable as well as a clarification.
5th bullet:
perhaps one of the most problematic. The appellants have suggested striking the entire
restriction. We have some concerns with that. We have no doubt that the Flemings do not
intend to and never have used the property as a truck depot. But, over time, given the sale of the
property to other owners, as the record clouds, as time goes by, we are concerned that it could
evolve to that. We have found no evidence, either submitted this evening or prior to this time
that would indicate that there has been daily movement of trucks in and out of this operation as
related to trailer storage. Yes, there has been movement of vehicles related to the contractor but
not to the storage. In fact, you heard testimony these evening that prior to M & C using the
property since 1995 that that may be where some of the difficulty started because from what I
heard this evening that there have been more frequent movements since M & C used the property
since 1995. With that being said, striking the second sentence "Once it leaves the site it cannot
return to the site for a minimum of 14 days", we agree that would be difficult to enforce. We
agree that is an arbitrary figure, but it was the best we could do at the time, that could be stricken
and not completely eliminate the restriction. We do believe there needs to be some definition of
the movement of these vehicles to define this as a storage use and not overnight parking or a
truck depot. So the words "a storage tractor or trailer shall not move to or from the site more
frequently than once in a two week period" we believe that that is critical to the definition.
Having said that, the Board may wish to consider whether that is the appropriate time period
based on the evidence that you've heard this evening. We suggested that once in a two week
time period is acceptable. You may wish to consider a different time period — either longer or
shorter. You may also wish to consider whether or not there needs to be a defined exception
with regards to yearly maintenance or yearly emission checks or whatever. There were some
suggestions made this evening that you certainly could give some consideration to.
Boardmember Piceno asked how the two week period would be enforced and how the City could
reasonable keep that in check.
Mr. Svoboda replied that it would be very difficult but not impossible to enforce. That type of
restriction or stipulation would rely very much on the eyes of the other property owners in the
neighborhood. In the event of an ongoing violation, the City would probably have to stake out
the property and watch to see the movement of the vehicles as they came and went.
Boardmember Gitelson asked if that means that there is no regulation that requires that records
be kept about the movement trucks.
February 11, 1999
BOARD OF ADJUSTMENT MINUTES
Page 36
Mr. Svoboda stated that he is not aware of any City, State or Federal restrictions. According to
testimony this evening, although a log is kept for these vehicles, if they don't go further than fifty
miles from home even that's not a requirement.
Boardmember..Sutton.stated,that.there.should be some record..,,DOT requires that any vehicle that
is going to be transporting or driven on the road it is supposed to be inspected and signed off in
an inspection log. So, every time it leaves the yard, it's supposed to be signed off. He stated that
he's not sure how it applies to trailers,but he knows it applies to tractors, dump trucks, etc.
Mr. Svoboda stated that the same tractor or trailer hauler may actually move different trailers and
so even if the log is kept for the movements of the tractor,he wasn't sure that that would apply to
the trailer.
Marcus Strickland, owner of M & C Showers, stated that on the logs he turned in, when the truck
leaves the property it has to have an inspection and on the same sheet an inspection is done for
the trailer that it hauls. The driver's signature will be on the log since he is the one doing the
inspection.
Back to the bullets,page 3
Mr. Svoboda referred to the
3rd bullet from the bottom:
The appellant has suggested that we strike the words "The storage of trailers shall not include the
loading, unloading, or transfer of goods within or from trailers on the site." Based on the
evidence that I had when I made the original decision and based on evidence I heard this
evening, I cannot find that there is any credible evidence since the letter that was issued from the
gentleman from Bechtel in 1982 to support the fact that there has been ongoing transfer of goods
between trailers on this property. I also cannot find that that was ever established as a substantial
use. The activity may have occurred but it did not appear to be a primary use of the property and
so at this point I feel very strongly that that restriction should not be removed. That is the sort of
activity which could turn the site into a truck depot without too much imagination.
Boardmember Piceno asked what if they were unloading landscape material from the trailer to be
taken out the following morning on a landscape job.
Mr. Svoboda stated that the intent of that particular restriction was aimed at the trailer storage. It
was not intended to restrict T &N Grading.
Last bullet:
"No vehicles or equipment may be stored on any of the trailers within the storage area". There
was a suggestion that that be stricken. The intent of that part of the definition was to make sure
that we had separation of uses and he did not find in the determination to use the property as a
third party contractor storage yard. We found that the landscape grading and contractor T & N
February 11, 1999
BOARD OF ADJUSTMENT MINUTES
Page 37
Grading had rights but we did not believe that that extended on to the leasing and renting of
property to other contractors. The restriction that we included here was intended to separate the
uses so that there would be no blending of the trailer storage with that of the grading and
landscape contractor. However, there have been arguments made this evening that if the trailers
are there and there just happens to be a backhoe or something on the back of the trailer is that
really any greater land use impactor..change the natureof.the use. ,He.stated that the Board
should consider and debate that issue.
Boardmember Sutton asked if the term were kept to just equipment/tools, his concern with
striking vehicles is a car hauler. He noted that car haulers that are parked overnight with cars on
them are not going to be there for very long.
Mr. Svoboda told the members of the board that they may want to question the appellant in terms
of their particular concern as it relates to that restriction. It does not appear to me during our
discussion or with the documentation that has been submitted why that would be a particular
problem.
Mr. Slavin stated that they did submit business records of where they actually stored equipment
and had been storing equipment for the contractors as part of the storage business on the site. He
stated that it is attached to Exhibit 28, dated June 25, 1997. Mr. Slavin stated that they have
submitted the evidence. He stated that they do store other contractor's equipment as part of the
trailer storage business on their site and they do store flatbed trailers that do have backhoes or
other types of equipment that can be hauled with a flatbed. He stated that this was evidence that
was submitted in June of 1997. He suggested that storage of construction equipment be allowed
but maybe not other kinds of vehicles.
Chairperson Cheniae stated that a backhoe on a flatbed trailer would be acceptable in the
landscaping business area. He said he would question equipment, cars, etc. on the storage area.
Boardmember Drew stated that they must clarify the types of equipment stated.
Boardmember Sutton stated that the word "vehicles" normally refers to cars and pickups. The
word"equipment"normally refers to backhoes, loaders, graders, etc.
Boardmember Drew stated that his concern was how the property would be used in the event it
was sold to another party.
Mr. Slavin suggested that it read something like "No vehicles other than construction equipment
may be stored . . .". He stated that maybe that will get away from the car haulers.
Mr. Svoboda stated there were two objectives which they were trying to achieve by that
restriction:
February 11, 1999
BOARD OF ADJUSTMENT MINUTES
Page 38
1) To clearly separate the storage of the trailers from the landscape and grading contractor
operation. There was an inherent determination there that third party contractor storage was
not established on this property.
2) There was also a concern that the wording with vehicles and equipment was somewhat
broad. He stated that when they were thinking of equipment and vehicles they probably
covered.a very...wide.gamut...Everything.from cars.to.trucks...:It could go as far as backhoes
and tractors. But, it might also apply to things that you might find on a flatbed over the road:
boilers, machinery. It is very unlikely that with the passive nature of this storage yard that
someone would store for weeks or months at a time expensive vehicles, expensive
equipment, things of that nature. This was seen as a passive storage yard for trailers that
were only used for periods of the year which then came back and were dormant for long
periods of time. The concern was if the equipment were allowed to be stored, it very easily
could turn into a contractor storage yard and that would mean daily movement. On the other
hand, if heavy equipment like boilers and road working equipment were allowed, it could
end up being a daily storage yard for contract construction, over the road haulers, etc. It was
the intent to separate the uses and allow what was reasonable for the property and minimize
the likelihood that in the future there would be even more serious land use impacts than there
are today.
Boardmember Drew asked Mr. Slavin to define a trailer hauler.
Mr. Slavin stated that it would be something used to haul something with. He included the
words "trailer hauler" because sometimes they have their dump trucks hauling a flatbed trailer
that has a vehicle on top of it. His point was, you can haul a trailer with something other than a
tractor. He stated that if they're allowed to have trailer storage, they would be open to a
suggestion other than the term trailer hauler. Mr. Fleming has a large truck with which he has
pulled a trailer. The intent is to not be limited with what they may haul a trailer.
Boardmember Drew stated that his interpretation of a trailer for storage purposes is not the same
thing as a flatbed with a backhoe on it.
Mr. Slavin stated that that is the history of the use of the property.
Boardmember Sutton then referred to exhibit 44C, page 3, paragraph 1, where it stated they also
store from time to time job site trailers typically used for temporary on site construction or sales
activities. He asked Mr. Slavin to define"trailer for sales activities".
Mr. Slavin stated that they are referring to when a trailer is taken to a new subdivision before
they have the model homes up. It would be used as an office.
Chairperson Cheniae brought up the last item where they were debating vehicles, equipment,
etc., the separation issue and stated that he didn't believe they had come to a consensus on it. He
referred to Mr. Svoboda's statement that with the amendments that were recommended and
discussed with some modifications, the decision by the Planning Director is essentially agreed to
February 11, 1999
BOARD OF ADJUSTMENT MINUTES
Page 39
by the Fleming's representative and by the Planning Director with two exceptions being the third
bullet from the bottom and the last bullet on page 3. Other than that, there was the last sentence
being dropped on bullet 5 which starts "A stored tractor or trailer shall not move to or from the
site more frequently than once in any two week period".
Mr. Slavin.,brought up.bullet..5.,..from..page_:3... .He.asked.-if the:tractor:moues from the site, does
that mean that it must stay out for two weeks before it can come back?
Chairperson Cheniae stated that that is how he interprets it.
Mr. Slavin then asked if it means that it can come out and go back once in any fourteen day
period.
Chairperson Cheniae stated that that's the way he understood it.
Boardmember Gitelson stated that its intent is that it can go out for maintenance and come back
but he agreed with the two week period.
Mr. Svoboda was asked to suggest how it could be stated. He gave the following: "A storage
tractor or trailer may move to and from the site no more than once in a two week period."
Chairperson Cheniae stated that he believed they had consensus with the exception of two items
being on page 3: the very bottom bullet and the third bullet from the bottom.
Boardmember Drew referred to the wording of the last bullet on page 2. His concern was that if
the property was sold to another person, does it mean that the next owner can not store.
Mr. Pennartz stated that they were not talking about T &N Grading specifically as an entity, they
were talking about the landscape and grading contracting use under paragraph A of the letter. No
matter what the name is,no matter who owns it. It would be allowed only as an accessory to that
landscaping business that's grandfathered on the property but not to become a landscape material
sales yard for wholesale or retail trade.
Beedie Randall commented that she wondered if any of the board could visualize or understand
the impact with the trucks. She stated that T & N Grading generates quite a bit of traffic. She
asked if the Board realized how much traffic would go in and out of the property. She stated that
they are a commercial business and they don't belong there.
Mr. Pennartz stated that since there were two different uses at issue on Parcel A, he suggested
they take a motion separately and start with the landscape grading business first.
Boardmember Drew made a MOTION on Parcel A, Use 1, Landscaping and Grading
Contractor, that it be accepted as amended. Boardmember Gitelson SECONDED the
MOTION.
February 11, 1999
BOARD OF ADJUSTMENT MINUTES
Page 40
Boardmember Sutton stated that he had no problem with it.
Boardmember Gitelson stated that he didn't see any problems with it.
Boardmember Picenostated.,that.he,.felt the additional evidence submitted could have been done
before that night. However,he would approve the motion.
Boardmember Drew agreed that the materials that were introduced that evening should have been
presented prior to that. He stated that he wanted everyone to understand that this has nothing to
do with the Flemings. It has to do with a piece of property and the rights of the piece of
property. He believed he could accept it as it was amended.
Boardmember Neyer agreed with the amended motion.
Chairperson Cheniae concurred with it also. He also stated that the record is clear that the
Flemings purchased the property and established the uses prior to annexation. A lot of the
concerns that he heard that night were more personal than they are the rights that attach to the
property and carried forward as a grandfathered situation. For that reason, he supports the
motion as it's been amended.
Chairperson Cheniae called for a Roll Call Vote and the MOTION PASSED
UNANIMOUSLY.
Boardmember Piceno made a MOTION on Parcel A, Use 2, Storage of Trailers, that it be
accepted as amended. Boardmember Drew SECONDED the MOTION.
Chairperson Cheniae asked if everybody understood the motion. It stated that it was as amended
by the appellant, as stipulated to by the Planning Director. There are two bullets that are not part
of it. They have to do with storage of vehicles, loading and unloading. He stated that the motion
does not include the extractions of the two bullets.
Boardmember Sutton stated that as far as the storage of semi-trailers goes, with the exception of
the last item as amended, he's all for it. He didn't see anything that doesn't show that they
weren't storing semi-trailers prior to annexation. He stated that he could support the motion.
Boardmember Gitelson stated that he could support it.
Boardmember Piceno agreed with Boardmember Gitelson. He felt the Planning Director and
staff gave those items due consideration. He stated that he would approve it.
Boardmember Drew stated that he still had a severe problem with the bullet that says "No
vehicles or equipment may be stored on any of the trailers within the storage area". He said if
February 11, 1999
BOARD OF ADJUSTMENT MINUTES
Page 41
they allow a trailer that has a backhoe on it to come in, the definition says the trailer can't be
parked there for storage. He then stated that he would accept it as written.
Boardmember Neyer concurred with the other Boardmembers.
Chairperson.Cheniae also concurred with the motion.
Mr. Flaaen asked Mr. Svoboda to read once again bullet 5 as amended. He stated that he
believed that the Flemings have agreed to it.
Mr. Svoboda read"A stored tractor or trailer may move to and from the site no more than once in
a two week period."
Chairperson Cheniae called for a Roll Call Vote and the MOTION PASSED
UNANIMOUSLY.
Boardmember Drew made a MOTION to accept the Planning Director's interpretation on
Parcel B. Boardmember Neyer SECONDED the MOTION.
Boardmember Neyer agreed with Mr. Svoboda. She didn't think they showed any prior use of
Parcel B far enough back for it to be grandfathered in.
Boardmember Drew stated that he didn't see enough proof to get even close to 1979. So, he
didn't think it should be accepted.
Boardmember Piceno stated that he agreed with the motion to not accept the appellant's
argument especially in light of the other Fleming family going to the proper authorities to get
something in writing. He would approve the motion.
Boardmember Gitelson concurred that no existing prior use established clearly. He concurred
with the Board.
Boardmember Sutton concurred with the rest of the Board. He stated that the only thing he saw
as factual was the aerial photograph of September 11, 1979 where there didn't appear to be any
use for the land.
Chairperson Cheniae concurred with the rest of the Board. He stated that to him the record is
extremely clear. He heard no testimony and saw nothing in the exhibits and stated that the aerial
photographs were very telling.
Chairperson Cheniae called for a Roll Call Vote, and the MOTION PASSED
UNANIMOUSLY.
February 11, 1999
BOARD OF ADJUSTMENT MINUTES
Page 42
Mr. Flaaen then explained the appeal rights to the various appellants. He stated that the Board of
Adjustment decisions may be appealed to either the City Council or the Maricopa County
Superior Court. In order to affect an appeal to the City Council, a written notice of appeal must
be submitted to the Planning Director within 15 days from the date of the decision. To affect an
appeal with the Maricopa County Superior Court, a complaint for special action must be filed
within 30 days from the date of the decision.
Chairperson Cheniae asked if there was any Other Business. There was none.
Chairperson Cheniae asked if there were any Planning Staff Reports. There were none.
Boardmember Gitelson stated that he thought it was remarkable that people came out and were in
the hearing for seven hours. He stated that it says a lot for both sides that they would take the
time and clearly prepare some very strong arguments. He hoped that everyone understood that
the Board empathizes with all sides but that they must deal with the facts and within the
parameters they are given.
Mr. Jones commented that we've seen some indication that the municipality has been at fault.
He stated that the City could buy the Flemings out at their price and return this back to A-1
zoning. Also, he suggested the City purchasing on the east side of the Flemings and trading them
for the two acres and their right of way. So 63rd Avenue could become residential. There, they
could restore the neighborhood and it could be a solution instead of a continuing problem. He
stated that he spoke to the Flemings about this and they were agreeable to it.
Since there was no further business, Chairperson Cheniae called for a MOTION to adjourn.
Boardmember Neyer made a motion to adjourn. Boardmember Drew SECONDED the
MOTION which passed unanimously.
The meeting was adjourned at 1:55 aim. on February 12, 1999.
Kate Douglas, II-:cling Secretary