Paradise Valley Board of Adjustment upholds San Miguel zoning appeal

The Paradise Valley Board of Adjustment Wednesday, April 12 voted unanimously to honor an appeal halting the development process of a home atop Camelback Mountain that has drawn the ire of neighboring residents.

The hearing comes on the heels of the town’s zoning administrator — in this case Community Development Director Eva Cutro — decision to allow the development process to proceed despite pending litigation at Maricopa County Superior Court.

The property is located at 5507 E. San Miguel Ave. and is owned by TMS Ventures LLC. Board members Hope Ozer and Emily Kile were absent for the vote.

The Board of Adjustment is a committee of seven residents appointed by town council, who are tasked with determining if variances to the town zoning code are appropriate, as well as hearing appeals to decisions of the town zoning administrator. This public hearing was a first for many on the Board of Adjustment, Chair Rick Chambliss explained during his opening comments.

There was hardly standing room in the council chambers at Town Hall, 6401 E. Lincoln Drive, as residents packed-in to hear the outcome of the public hearing. There were 85 resident forms turned into the Board supporting the appeal.

The property in question has drawn concerns from nearby residents over safety issues since construction plans for a driveway to the property became public March 2016.

Records show the proposed site of the 10,000-square-foot home is about 3.44 acres in size with a slope of approximately 53 percent, on an undeveloped plot of land. The project consists of constructing a house, driveway, retaining wall and pool.

Prior to the preliminary hearing, about 40 homeowners who live in an enclave of Paradise Valley coined “Stone Canyon” have expressed safety concerns regarding the use of explosives to make way for the driveway, the potential damage to Camelback Mountain and a lack of communication between town leaders and concerned residents.

The Stone Canyon community sits at the base of the north side of Camelback Mountain.

For more than three hours on April 12, the Board of Adjustment listened to arguments for and against the appeal, before ultimately deciding to side with the appellants — Teresa and Joe Zachariah, Terry Appel, Alfred and Ingrid Harrison and Save Camelback Mountain, an Arizona non-profit corporation.

The hearing stems from a Nov. 29, 2016, letter from Ms. Cutro and Town Attorney Andrew Miller advising the applicant their next moves were “at risk” while in pending litigation with neighbors over the proposed plans.

The appellants are owners of three properties — lots 22, 23, and 24 — that sit directly below the 5507 E. San Miguel plot of land. Initial plans showed a driveway would need to be created to provide access to the new home, which would disrupt two of the established properties.

Terry Scali, the property owner, has filed legal claims in Maricopa County Superior Court against his potential neighbors in April 2016 to obtain access through their properties through an easement to the undeveloped plot of land.

TMS has stated to town staff it believes it has legal access to the TMS property pursuant to an implied way of necessity and that such access created thereby on the neighboring/southern lots provides access to the TMS property, the town staff report states.

Proceeding at risk

The Sept. 8 Hillside Building conceptual review was the first of two required reviews, before the applicant, in this case, TMS Ventures LLC Residence, is able to obtain a building permit.

Subsequent to the Sept. 8, 2016, review, attorney Francis Slavin, representing the three property owners, sent a letter to the Hillside Committee Chair stating there was a lack of legal authority to process the formal application by TMS due to the pending litigation.

Three months later, Ms. Cutro and Mr. Miller issued the letter in question to TMS Ventures attorney, Doug Jorden, stating the TMS Hillside building Committee application may be processed “at risk” during the pending litigation.

Mr. Slavin and his clients believe the “at risk” reference in the director’s letter is a reference to the possibility that if an outcome to the pending litigation is different than the applicant anticipates, it could result in the Hillside Committee needing to rehear the matter.

TMS’s formal Hillside Building Committee application was submitted to the town on Feb. 16, 2017. Per town code and state statute, an appeal of a zoning administrator’s decision to the Board of Adjustment shall suspend further decision making on the matter.

Mr. Slavin and his clients believe Ms. Cutro erred by continuing to process the application.

An old wives’ tale

The April 12 public hearing included outside legal counsel by Susan Goodwin, who advised the board in an executive session at the start of the hearing before moving forward with presented arguments by Mr. Slavin and Mr. Jorden, before opening the meeting to public comment.

A number of residents, including Mayor Michael Collins; town council members Scott Moore, Paul Dembow and Julie Pace; and planning commission members Dolph Strom and Daren Wastchak were present.

“We’ve received a volume of material from a number of you, it’s clear that there is a great interest in this,” Mr. Chambliss said of the proposed home.

While in executive session, Ms. Pace and Phoenix Mountain Preservation Council President Patrick McMullen entertained the audience with questions about appeal and the Phoenix mountains.

“They (the neighbors) have appealed the town going forward with the application,” Ms. Pace, who was elected to town council in November 2016 on a platform of saving Camelback Mountain, explained to the crowd.

“The neighbors don’t feel those three should go forward without a legal right of access being established. Why would you waste town resources to an application when there’s been no legal right of access, yet? That’s the theme tonight.”

According to Ms. Pace, who was presenting herself as a resident not as a council member, a common thought among neighbors is that there was a law put in place that stated development couldn’t be above 1,600 feet.

“The reality is — I thought the same thing — it’s not true,” Ms. Pace said. “I went to Mr. Miller our town attorney, and Mr. Burke, our town manager, that is not in place in this town. It didn’t get finished.”

Neighbors position

Mr. Slavin, the appellants representative, opened his arguments with an open call for any Board of Adjustments members to recuse themselves from the hearing, before presenting a screen-shot of a Facebook post from TMS Ventures, LLC applicant, Terry Scali’s wife, to Board of Adjustment member, Catherine Kauffman.

“Happy birthday to my dear friend, make it a fabulous day,” Ms. Scali wrote to Ms. Kauffman.

Ms. Kauffman says she has known the Scali family since 1997, but she has no financial interest in the property or any bias toward the project.

“That is incorrect. I can tell you, I have never socialized with the Scalis ever,” Ms. Kauffman stated.

Mr. Chambliss stated he didn’t see reason for Ms. Kauffman to recuse herself, after publicly stating her position.

Mr. Slavin continued his presentation by stating three areas his clients believe Ms. Cutro to be erroneous: no “at-risk” process or approvals; TMS has not satisfied Hillside Building Committee application requirements; and the town has no authority to allow TMS to continue until a judgment is rendered.

“What we have here is a Nov. 29, 2016 — I’ll call it a decision — by the town’s zoning administrator, which allows TMS ventures to proceed with the Hillside Building application at-risk,” Mr. Slavin explained.

“Despite TMS having no proof of legal access to its property.”

One of Mr. Slavin’s major points throughout the evening was that to be considered a “lot” the property must have a private or public street frontage, which 5507 E. San Miguel, does not.

“By allowing TMS to proceed with its hillside review and to obtain a decision from the Hillside Building Committee, the zoning administrator decision, by definition has to interpret the zoning ordinance. She has to be enforcing the zoning ordinance — you also heard her say there’s nothing in the zoning ordinance that addresses ‘at risk,’” he explained.

An additional concern is that decisions made in one hearing, could bolster Mr. Scali’s arguments in his court case.

“I can assure you that TMS will take that decision to the Superior Court, and say ‘look judge, here are the people who are charged with administrating this ordinance, they’re the ones with expertise,’” Mr. Slavin said. “‘Surely, you should grant my clients application to request for legal access,’ — that will happen I guarantee you.”

Other issues brought forward by Mr. Slavin include an application by TMS where their right-of-way and water pressure checklist were left blank; and an issue of implied legal access.

Property owner rights

Mr. Jorden, of Jorden, Bischoff & Hiser, says he agrees with the decision the town staff made and refuted claims made by Mr. Slavin.

“It boarders on crazy to think that given the letter from the town, the subject of this appeal, that if you don’t have access, then the process you have gone through with the Hillside Committee is meaningless,” Mr. Jorden explained in his opening comments.

“There’s no way that we would or could, leverage or estoppel that.”

The “at risk” letter as defined by Mr. Jorden states the applicant will proceed on their own nickel.

“Mr. Slavin had said there’s nothing in the ordinance that authorizes the ‘at risk,’ I would take the opposite position,” Mr. Jorden said. “In the absence of something in the ordinance that says this is allowed or not allowed, you have to construe this zoning ordinance or hillside code in favor of the property owner and allow them to proceed.”

The applicants say they feel the staff’s position was correct, and they should be allowed to move forward.

“The interpretation, if you will, that the zoning administrator made was to not make an interpretation. She simply deferred until later on, whether or not any subdivision codes or condition use permits would apply,” Mr. Jorden told the board.

Mr. Scali bought the property around three years ago, and is simply trying to build his house, Mr. Jorden asserts.

“We want to keep moving forward, Mr. Scali wants to build his home on the lot, and we don’t want to be sitting for another six or 12 months, fully recognizing that we’re at risk. We understand that. We get that,” Mr. Jorden said.

Mr. Jorden, who does not represent Mr. Scali in his litigation against the neighbors, says if the court’s decision is in favor of Mr. Scali, and then that decision gets appealed, the final decision could more than two years away.

Decision

Ultimately the Paradise Valley Board of Adjustment decided in favor of the appeal, and any future movement on the Scali property will be halted until the Superior Court decision regarding access to the property is resolved.

“I find this issue troubling,” Board member Quinn Williams said before rendering his vote.

“As a citizen, you want certainties in the zoning code and certainties in the interpretations and I can’t in my diligence ever find support that we have made ‘at risk’ reviews, whether in hillside or any other committee, so I find that somewhat troubling.”

Mr. Williams says he doesn’t want bad facts to cloud the decision in front of them, and asserts each board member has spent a lot of time and thought into this decision.

“I’m certainly swayed by the fact that the applicant filed this lawsuit as he had to, he had no other option, and that this matter will never get finally determined until that lawsuit is resolved. I think I’m somewhat sympathetic that we may be putting the cart before the horse.”

If the Hillside Committee does review the case, and the Hillside code is later amended it would only create another revision of plans, which Mr. Williams says is troublesome.

Mr. Chambliss echoed Mr. Williams’ sentiments, stating he is troubled by some of the information presented.

“I echo your concerns that we ought to have certainty in what it is we direct the citizens to comply with in our zoning ordinance and whatever our code requires,” the chairman explained.

“I’m troubled by the fact that there doesn’t seem to be any authority in the code for this platypus of an ‘at risk’ proceeding.”

Until there is legal judgment on the issue, Mr. Chambliss says he is sympathetic to residents who are involved.

“We really are letting folks spin their wheels a bit, and spend money, on something that may be completely re-done or wasteful.”

Following the grant of the appeal, the matter will be sent back to town staff, based on the fact the board feels the decision by the zoning administrator to be without substantial authority.

Mr. Jorden says him and his applicant are disappointed by the outcome.

“We’re going to have to evaluate with Mr. Scali our next steps and it’s premature to do that at this point,” Mr. Jorden said after he hearing.