Monday, October 12, 2020

Town Resident Wins Town Code Change

Town staff can approve minor build setback variances
The Town council approved a resolution last week that allows towns staff to approve minor setback variances on properties. The term "minor" is a variance that is less than 10% of the required setback. 

The measure was proposed in response to a case on which LOVE reported in August. You can read about that case here. The Board of Adjustment rigorously had applied state code to reject an appeal for a 2.5 foot variance for  a garage on an historical property. The vote was 3-2.

Applies to individual residences only... not developer homes
The resolution applies to properties that are owned by individuals. So, the measure can not be applied by developers in creating new homes. Staff will make decisions on an individual basis, according to Town Planner Hannah Oden and would only approve such if there were not objections form abutters or other nearby neighbors.

According to Oden, the staff approval process puts Oro Valley in line with several other Oro Valley communities and with the county. It is also in compliance with state law. Also the individual applying for the variance can appeal a staff denial of the request to the Board of Adjustment.

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Unanimous support and approval
During the public hearing, there were no objections raised. Oro Valley homeowner Tracey Alexander, who is the owner of the home whose request was denied by the Board of Appeals, spoke in approval, thanking town staff for creating a "common sense" solution. Council members Solomon and Barrett also opined in favor of the measure. 

The measure passed unanimously.

Increases staff power.. Leaves Planning and Zoning Commission and Council out of the loop
The council decision does increase the power of staff to make Planning and Zoning decisions that impact your lives without seeking Council approval. As we wrote last week, staff can now approve, with little to no public input, the pre grading of land in Innovation Park. Grading was never allowed unless use was known and council had oversight. 

The measure did not consider making a setback variance request something that goes through the town's normal process. First, it goes to staff for review. Next, it goes to the Planning and Zoning Commission for review. Finally it goes to council for final decision.

Our codes are there for a reason
In addition, this new resolution, though in line with what some other Arizona jurisdictions and allowed by state law, circumvents the intent of the original ordinance. This view was expressed by one resident in an email to some council members.

"Our Codes are there for a reason. They are there to protect the Citizens and to ensure that everyone is treated equally... If an individual desires to be treated differently, and request a variance to the code, their avenue is to go the Board of Adjustment. This is a Board of fellow citizens whose decision to allow for the requested is based on State Law." 

The problem with that in the case of a minor setback request, one that appears to make great sense, is that the criteria fo Board of Adjustment approval are very strict when applied exactly as written.