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ACTION |
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Department: |
☐ Motion |
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Planning & Neighborhood Svc |
☐ Resolution |
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☐ Ordinance - Introduction |
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Division: |
☐ Ordinance - Adoption |
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Community Planning |
☒ Public Hearing |
TITLE:
title
Variance Appeal: VAR-41582-2023 - 2475 S. 43rd Trail
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SUMMARY RECOMMENDATION:
Summary Recommendation
The City Council will hear and decide this variance appeal in a quasi-judicial capacity as a statutory board of adjustment pursuant to Arizona Revised Statutes (A.R.S.) Section 9-462.06 and Yuma City Code (Y.C.C.) §154-02.02. (Planning and Neighborhood Services/Community Planning) (Alyssa Linville)
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STRATEGIC OUTCOME:
NOT APPLICABLE
REPORT:
This appeal concerns the denial of a variance application sought by Appellant Wilson Okwuobu on behalf of Legacy Healthcare. The variance was heard on August 10, 2023 before Hearing Officer Sonia Ramirez, Esq., who found that the request for variance did not meet the four (4) criteria necessary to grant a variance. The four criteria are found in Y.C.C. § 154-03.04(D) and A.R.S. § 9-462.06.
BACKGROUND
Appellant Okwuobu sought the Hearing Officer’s approval of VAR-41582-2023 to reduce the minimum distance requirement between residential care facilities from 1,320 feet to 67 feet. The Department of Planning and Neighborhood Services staff report for Appellant’s requested variance is attached to this City Council Report (Council Report) and recommends denial.
Section 154-02.02 of the Yuma City Code establishes the Hearing Officer variance procedure. Consistent with A.R.S. § 9-462.06, in order to approve an application for a variance, Y.C.C. § 154-03.04(D) requires a finding that the application satisfies all four of the criteria for the approval of a variance. Specifically, Y.C.C. § 154-03.04(D)(1) states that the Hearing Officer:
. . . shall grant a variance(s) only when findings of fact are made that all of the following conditions exist:
(a) There is a special circumstance(s) or conditions(s) that applies to the property, building, or use referred to in the application, that does not apply to most other properties in the district.
(b) The special circumstance was not created or caused by the property owner or applicant.
(c) The granting of the variance is necessary for the preservation of substantial property rights enjoyed by other property owners in the vicinity, under identical zoning designations.
(d) The granting of the variance will not be materially detrimental to any person residing or working in the vicinity, to adjacent property, to the neighborhood, or to the public health, safety, and general welfare.
As set forth in the cited Yuma City Code, each of the four (4) criteria required for the approval of a variance application must be answered in the affirmative. The inability to answer any one of the four (4) criteria in the affirmative, as a matter of law, must result in the denial of the variance application.
PROCEDURE
The public hearing on Appellant’s variance application was heard by Attorney Sonia Ramirez, who has been appointed as a Hearing Officer by the City Council to hear land use matters for the City of Yuma. After taking testimony on Appellant’s variance application, Hearing Officer Ramirez denied Applicant’s request to reduce the minimum distance requirement between Applicant’s proposed residential care facility and an already-existing residential care approximately 67 feet away because the variance application failed to meet the four (4) criteria as required by Y.C.C. § 154-03.04(D). The minutes from the August 10, 2023 Hearing Officer Meeting were approved on August 24, 2023 and are attached to this Council Report.
After the variance hearing, City staff notified Appellant of the right to appeal the decision. The City of Yuma offers the appeal free of charge to an appellant who wishes to have review. Appellant indicated interest in lodging an appeal. On August 14, 2023, City staff provided information on the appeal to Appellant and Appellant timely filed the appeal. The August 14, 2023 Notice from the City and the August 24, 2023 response Notification of Appeal from Appellant are attached to this Council Report.
On September 6, 2023, City staff sent Appellant Okwuobo the schedule for this appeal as well as deadlines for submission of any additional material by either the Appellee Department of Planning and Neighborhood Services or by Appellant Okwuobo. In that schedule, this appeal is scheduled for the regular City Council meeting on Wednesday, November 1, 2023. Appellant’s deadline to submit any additional material was September 26, 2023. Appellee Planning and Neighborhood Services deadline to submit any additional material was October 6, 2023. Appellant was also notified of the right to be represented by an attorney. The September 6, 2023 schedule is attached to this Council Report.
As of the date of this Council Report, Appellant Okwuobo opted not to submit any additional material before the Appellant’s deadline and no attorney has entered an appearance on behalf of the Appellant. The Department of Planning and Neighborhood Services, as the Appellee, will be represented by the City Attorney’s Office. On October 6, 2023, Assistant City Attorney L. John LeSuer, submitted a timely brief in support of the Hearing Officer’s decision. The Department of Planning and Neighborhood Services brief is attached to this Council Report.
STANDARD OF REVIEW
City Council will hear this appeal as a statutory board of adjustment which decides appeals from Hearing Officer decisions concerning zoning ordinance variances under the four described criteria, and determines whether “special circumstances” exist to relieve an owner of property from strict application of zoning laws. A.R.S. § 9-462.06(G)(2).
The quasi-judicial body hears the appeal de novo (meaning, with brand new eyes), but the authority to modify zoning decisions under a variance is limited to making findings that all four criteria are met (in which case the City Council could choose to grant the variance) or any one of the four criteria are not met (in which case the City Council would have to deny the variance). Pawn 1st, LLC v. City of Phoenix, 242 Ariz. 547, 551 ¶ 11 (Arizona Supreme Court, 2017).
Appellant Okwuobo has the burden of persuasion to show that the application for a variance should have been granted by the hearing officer. A variance is only authorized when there is a finding that the applicant affirmatively establishes and satisfies all four (4) criteria in the Y.C.C. Pawn 1st, LLC v. City of Phoenix, 242 Ariz. 547, 552 ¶ 12 (Arizona Supreme Court, 2017). A quasi-judicial body granting a variance without affirmatively finding that all four (4) Y.C.C. criteria are established is outside of the statutory powers and the finding is invalid as a matter of law. Arkules v. Bd. of Adjustment of Paradise Valley, 151 Ariz. 438, 440 (Arizona Court of Appeals, 1986).
City Council will have an independent attorney representing the City Council in a quasi-judicial manner for the appeal hearing and decision of this matter.
Hearing Officer Staff Report - Attached
Hearing Officer Minutes - Attached
August 14, 2023 Notice of Right to Appeal - Attached
August 24, 2023 Appellant’s Notice of Appeal - Attached
September 6, 2023 Appeal Schedule - Attached
Appellee Department of Planning and Neighborhood Services brief in support of the Hearing Officer’s decision dated October 6, 2023 - Attached
FISCAL REQUIREMENTS: