There is one Oro Valley Board/Commission that is more than simply an advisory team of Oro Valley citizens. There is one board that actually has power to make significant changes, changes that even the town council can not overturn, changes that, if refuted, must be adjudicated. Members of this board have collective power to make changes that impact your life. And they are unelected officials.This board is the Board of Adjustment. They have enormous power.
"The Board of Adjustment is a quasi-judicial board that has the power to review and decide on administrative decisions or zoning requirements that create unnecessary hardships in the development of property because of exceptional or extraordinary conditions. Unlike other boards or commissions, the Board of Adjustment makes the final decisions on items that come before it."(Source) Generally, it hears appeals for variances and, sometimes, appeals of town staff administrative decisions.The board of adjustment is a five member board. The current members are:
- Bill Adler, Chairman
- John Bohl
- Helen Dankwerth
- Stephen Roach
- Mike Schoeppach
Their terms expire on December 31, 2013.
The decisions of this board are binding. Their decisions can change your life.
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Take, for example, the April 23, 2013 Board of Adjustment meeting. That's the day the Board Of Adjustment, with four members present, voted 3-1, to allow developer Mike Arnold, owner of Kachina Homes, to construct a home whose porch/backyard will be built into a hillside development (no build) zone. "The hillside development zone applies to areas where there are 25% slopes and prohibits building in those areas," according to Oro Valley planner Patti Hayes. The zoning code provides that an applicant can request an exception to the zone restriction "...if it prevents reasonable use of the property." (5:55 of 4-23 meeting minutes).
Arnold has owned the property for 15-16 years. He was well-aware of the hillside restriction when he bought the property since it was zoned for such in 1996, several years before he would have purchased it.
The case heard Arnold's request for a variance on lot 8 of Sunridge II. This is the lot that, on June 5, the Town Council, voted, 4-3, to set-aside a hillside easement in order to allow the porch/backyard to be built on it. The hillside will be severely disturbed. (See: Town Council Votes To Allow HIllside Construction... Overrides Conservation Easement")
Oro Valley town planner Patty Hayes presented the staff report. The zoning code provides that an applicant can request an exception to the zone restriction "...if it prevents reasonable use of the property." (5:55 of 4-23 meeting minutes). To staff this means: "Can [the developer] build a comparable size home to what is in the area."
It is on this factor and this factor alone that the board justified its decision.
Planner Hayes reported that homes in the area range from 1,900 to 3,700 sq. ft. "It is within that range that we consider reasonable use of that property," noted Oro Valley planner Chad Daines at the hearing. 58% of the homes in the area are from 2,500 to 2,900 sq. ft., according to planner Hayes.
The "for" votes were members Dankwerth, Roach and Schoeppach. They removed the hillside restriction. At the June 5 town council meeting, Chairman Adler explained this board of adjustment majority "vote" to the council. (See Video).
At that meeting, as we reported, the fate of the hillside was sealed when council voted to rescind the conservation easement on the property. There will be a substantial hillside grading impact. The result will be several retaining walls terraced at various layers, for grading differential of 12'.
Our Analysis
Our analysis concludes that the Oro Valley Board of Adjustment got it wrong.
Let us assume that one does conclude that a 2,800 square foot home is a reasonable use of the property. Does this factor alone justify building on the slope?
One can not and should not answer this question until they determine that there are no suitable alternative building locations on this property where a home of that size, considering various styles and not one self-imposed by the developer, could be built.
The three consenting members of the Board of Adjustment failed to consider this factor. Only Chairman Adler did.
Here's the thing: A home of that size can be built on the property without disturbing the hillside. It will simply have to have a different design than the developer wants. In essence, the Board of Adjustment granted a variance based on a self-imposed applicant requirement for a specific home design. Granting a variance to accommodate a specific applicant requirement is not legal: A Board of Adjustment man not "...Grant a variance if the special circumstances applicable to the property are self-imposed by the property owner."(Item H.2)
In this case, the special circumstance was not just the hillside that caused the request for the variance, it was also the fact that the developer wated to build a certain home of his desire on that property and that he could only do this if he got the variance.
In one simple vote, three non elected Oro Valley Board of Adjustment members created a "trifecta": They "blew up" a hillside no build, no disturb restriction. They injured those who obeyed the law. They increased the wealth of a developer who has owned this lot for 15 years, a lot he probably purchased for "cheap" because of these restrictions, while diminishing the wealth of others.
And they are accountable to no one.
Yes. It does bother us that an unelected group of five citizens can make a binding decision that is not appealable to council. In this case, this board got it wrong. And they injured the environment and fellow citizens in the process. The developer immediately became more wealthy because the property can be fully built upon. The rest of us became poorer.
Do you believe that unelected (and possible poorly trained) officials should have the right to exercise such power?
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(The Oro Valley Board of Adjustment is not the only group of unelected citizens who have power. The Oro Valley Planning and Zoning Commission and the Development Review Board have de-facto power because the majority on council rarely challenges the recommendation of these boards.)
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The case heard Arnold's request for a variance on lot 8 of Sunridge II. This is the lot that, on June 5, the Town Council, voted, 4-3, to set-aside a hillside easement in order to allow the porch/backyard to be built on it. The hillside will be severely disturbed. (See: Town Council Votes To Allow HIllside Construction... Overrides Conservation Easement")
Oro Valley town planner Patty Hayes presented the staff report. The zoning code provides that an applicant can request an exception to the zone restriction "...if it prevents reasonable use of the property." (5:55 of 4-23 meeting minutes). To staff this means: "Can [the developer] build a comparable size home to what is in the area."
It is on this factor and this factor alone that the board justified its decision.
Planner Hayes reported that homes in the area range from 1,900 to 3,700 sq. ft. "It is within that range that we consider reasonable use of that property," noted Oro Valley planner Chad Daines at the hearing. 58% of the homes in the area are from 2,500 to 2,900 sq. ft., according to planner Hayes.
At that meeting, as we reported, the fate of the hillside was sealed when council voted to rescind the conservation easement on the property. There will be a substantial hillside grading impact. The result will be several retaining walls terraced at various layers, for grading differential of 12'.
Our Analysis
Our analysis concludes that the Oro Valley Board of Adjustment got it wrong.
Let us assume that one does conclude that a 2,800 square foot home is a reasonable use of the property. Does this factor alone justify building on the slope?
One can not and should not answer this question until they determine that there are no suitable alternative building locations on this property where a home of that size, considering various styles and not one self-imposed by the developer, could be built.
The three consenting members of the Board of Adjustment failed to consider this factor. Only Chairman Adler did.
Here's the thing: A home of that size can be built on the property without disturbing the hillside. It will simply have to have a different design than the developer wants. In essence, the Board of Adjustment granted a variance based on a self-imposed applicant requirement for a specific home design. Granting a variance to accommodate a specific applicant requirement is not legal: A Board of Adjustment man not "...Grant a variance if the special circumstances applicable to the property are self-imposed by the property owner."(Item H.2)
In this case, the special circumstance was not just the hillside that caused the request for the variance, it was also the fact that the developer wated to build a certain home of his desire on that property and that he could only do this if he got the variance.
In one simple vote, three non elected Oro Valley Board of Adjustment members created a "trifecta": They "blew up" a hillside no build, no disturb restriction. They injured those who obeyed the law. They increased the wealth of a developer who has owned this lot for 15 years, a lot he probably purchased for "cheap" because of these restrictions, while diminishing the wealth of others.
And they are accountable to no one.
Yes. It does bother us that an unelected group of five citizens can make a binding decision that is not appealable to council. In this case, this board got it wrong. And they injured the environment and fellow citizens in the process. The developer immediately became more wealthy because the property can be fully built upon. The rest of us became poorer.
Do you believe that unelected (and possible poorly trained) officials should have the right to exercise such power?
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(The Oro Valley Board of Adjustment is not the only group of unelected citizens who have power. The Oro Valley Planning and Zoning Commission and the Development Review Board have de-facto power because the majority on council rarely challenges the recommendation of these boards.)
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2 comments:
IF my memory serves me correctly, the Board of Adjustment and the Planning and Zoning Commission are required by state law for each municipality.
All other boards and commissions are at the sole discretion of each city and town. The Council has the right to change the responsibilities of these discretionary boards.
Unelected board and commission members are appointed by a majority vote of the council. Sadly a qualified resident is not appointed to serve their community if their politics are not in line with the majority of the Council. The result of this political process can come at a high cost to our community .
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