APPEAL OF PZ Z2016008.PDF

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Appeal. of Planning andlifinirlg Commission
Recommendation -
If the Planning & Zoning Commission recommends approval of a particular case it will be placed
on a consent agenda for the Board of Supervisors hearing. However, if this appeal form Is
received within 15 calendar davl following Commission hearing, then the agenda item will be
placed on the regular agenda for the Board of Supervisors hearing.
9 Submit this forth to the Maricopa County Planning & Development Deportment:
601 N, 44% Street, Sy% 200 Phoenix, Arizona 85008
Fax Number, 602-506-3711
Hours of Operation; Monday - Friday 8;00 a.m. - 5:00 p.m. '
9 This appeal can also be submitted electronically at .
www.rnancoaastav ornehIssionRegorntrienclation.asbx
- Appeal of Planning & Zoning Commission Recoramendatiop
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' EINUMigdaLVAWIZ
Case Number/ Puled Name: Z2016008/Thunder Ridge Air Park
Planning & Zoning Commission Hearing Date: --July 21, 2016
Appellant Name: Samuel G. Co ..ersmith / Co ..ersmith BrocItelman PLC
Mailing Address: 2800 N.Central Avenue, Suite 1200
City, State. ZIP Code: Phoenix, Arizona 85004- 1009 .
Telephone Number: (602)381-5461 E-mtill: - 1 scappersmith@icblawyerg.com
Reason for the Appeal of the .
subject case: See attached letter.
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cp{4...1.7_: e , ,
Appellant Signature L Date:
1
July 21, 2016 Planning and Zoning Commission Agenda
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COPPERSMITH Sam Coppersmith
scoppersmith@cblawyers.com
FM, (602) 381-5461
BROCKELMAN FAx (602) 224-6020
LAWYERS 2800 N. central Ave., Sulte 1200
Phoenix, AZ 85004-1009
CBLAWYERS.COM
August 2, 2016
Via email moa ma ico.ov fax, and mail
Mr. Raymond Banker
Maricopa County Planning and Development Department
501 N. 441 Street, Suite 200
Phoenix, AZ 85008
Re: Case Z2016008 (Thunder RidgeAir Park ZC Major Arnendrnen0
Dear Mr. Banker:
We wish to appeal the Planning and Zoning Commission recommendation on this case to
the Board of Supervisors on behalf of Sac..oha H Nobel-Frima, who owns Maricopa County
Assessor parcel nos. 503-86-009C and 503-86-009E, We have two reasons for appealing the case.
First, the Planning and Zoning Commission recommendation violates the Maricopa County
Zoning Ordinance and would require a variance. Article 1111.3 of the Zoning Ordinance requires
both an obstacle free zone (OFZ) and a runway protection zone (RPZ) at each end of a runway. 1
The OFZ and RPZ are mandatory requirements, and must be contained within the property
containing the runway, unless written - consent or avigation easements are obtained from all
Article 1111.3 of the Zoning Ordinance lays out the OFZ and RPZ requirements:
Buildings or structures or any portions thereof, except fornavigational aids, shall not be located in
the obstacle free zone ("OFZ") which shall be defined as an area which is 60 feet wide along each
side of the edge of the runway of an existing or propoSed runwayorlancling strip and 250 feet wide
centered along the projected runway center line at a distance of 200 feet from the end of ends of an
existing or proposed runway or landing strip where takeoff and landing is either executed or
proposed. A runway protection zone ("RPZ") stall be located at the end or ends of the existing or
proposed runway or landing strip where takeoff or landire is either executed or proposed which
shall be a trapezoidal area which is 200 feet beyond the ends of the runway and. centered along the
projected runway centerline, The RPZ shall be 1,000 feet long. The width of the RPZ closest to the
end of the runway or landing strip shall be 250 feet. The width of the RPZ furthest from the end of
the runway or landing strip shall be 450 feet. Within the RPZ, buildings or structures or any portions
thereof shall not be erected to exceed a height that would interfere with the takeoff or landing of a
plane with a glide angle of one foot vertical for every .20 feet horizontal, such glide angle to be
computed as beginning at the RPZ boundary which is closest to the end of the runway.
OMMMCal

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property owners in which the OFZ or RPZ may wholly or partially lie? The requirements to have
an OFZ and RPZ may be waived only for an airport subject to Federal Aviation Administration
(FAA) or Department of Defen.se (DOD) requirernents. 3
Thunder Ridge Air Park is not subject to FAA or DOD requirements. The Planning and
Zoning Commission recommendation (and staff report cii the case) both ignore the language in
the Zoning Ordinance that limits waiver of the OFZ and RPZ requirements to FAA- and DOD-
regulated airports. The Zoning Ordinance authorizes only the Board of Adjustment to allow a
variance from the terms of the ordinance if, owing to pectiliar conditions, a strict interpretation
would work an urmecessary hardship. 4 The Planning and Zoning Commission recommendation is
an improper variance or amendment to the Zoning Ordinance, which eliminates either the
requirements of Article 1111.3 for a mandatory OFZ and RPZ either located entirely on the
applicant's property, or on neighboring property under written consent or an avigation easement,
unless a waiver is granted for an FAA- or DOD-regulated airport. Neither the Commission nor
the Board of Supervisors, without proper notice, may amend the Zoning Ordinance for a specific
case or applicant. Allowing this non-FAA- and non- DOD-regulated airport to have the OFZ and
RPZ requirement waived improperly deletes the last 10 words of the last sentence of Article
1111,3.5
If the Zoning Ordinance meant that the on and RPZ requirement could be waived for any
airport, then the last sentence would read "flhe provisions of this paragraph may be waived for
any airport." That is not what the Zoning Ordinance says, as instead, it clearly outlines the
exchtsive circumstances under which the requirements of Article 11113 may be waived, i.e. when
an airport is subject to Federal Aviation Administration or Department ofDefense requirements.
Thunder Ridge Air Park is not subject to the requirements of either of those agencies, and to read
Article 1111.3 to permit waiver in any other case would violate the "well established rule of
statutory constriction providring] that the expression of one or more items of a class indicates an
intent to exclude all items of the same class which are not expressed.' The proposed modification
as Per the Article runway 1111.3 or . lAriging of the Zoning strip. In Ordimmce,'"[t]he any instance where OZ or any RPZ portion shouldhe of the located On RPZ entirely of a runway OD the same or lot or parcel
extends beyond the lot or parcel of property containinE the runway or landing strip, written consent Wain or avigarion strip
easements must be obtained from all property owners in which the OFZ or RYZ may wholly or partially lie,"
3 Per Article 1111.3 ofthe Zoning Ordinance, "ftlhe provisions of this paragraph may be waived for any airport subject
to Federal Aviation Administration or Department of Defense requirements."
4 A.R.& § 11-816; see also Article 303.2.2 of the Zoning Ordinance, which authorizes the Board of Adjustment to
lajllow a Variance from the terms of the Ordinance-when, owing to peculiar conditions, a strict interpretarion .vmuld
work will be an preserved," unnecessary hardship, if in granting such Variance the general intent and purposes of the Zoning Ordinance
6 See Ariz Stave Hosp./Ariz. Orgy. Prot & Trearmene Or. v. Klein, 296 P.34 1003, 1007 (App. 2013) ("each word,
phrase, clause and sentence must be given meaning so that no part of the Statute will be void or trivial").
6 Pinza Co. v. lieinfeld, 134 .Ariz. 133, 134 (1982).
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to the existing special use permit 'violates the terms of the Zoning Ordinance, and requires either
an amendment to the Ordinance or a variances
Second, allowing the air' park to eliminate the OFZ and RPZ requirements effects a taking
of Ms. Frima-Nobel's property! Eliminating the requirement does not eliminate the safety issue
that requires these areas to be free from structures and obstacles to aviation. The applicant — and
the Commission — simply.shifted that burden from the applicant to an adjacent owner. As noted
in the staff report on the case, there are areas within the adjacent 'property with no topographical
constraints to development, and under current zoning the owner may erect structures up to 40 feet
high at a 3-foot setback from the 'airpark boundary Moreover, the wash may be channelized, or
may change locations in the future based on future development, and the safety and noise concerns
raised by moving aircraft operations onto an adjacent property could eliminate other potential uses
for the portions of the floodplain that remain unsuitable for. development.
By approving the Planning and Zoning Commission recommendation, the Board of
Supervisors would be taking a zoning entitlement — not just what may be possible in the future,
but as staff recognized, areas of Ms. Frimallobers•property that can bedeveloped with buildings
right now You would be taking Ms. Frimallobers property caul giving it to Thunder Ridge,
without compensation to her. That not only is not legal, it just isn't right.
Please let me know if you have any questions or need any additional information.
Very truly yours,
Samuel G. Coppersmith
7 A variance in this case would be improper because the hardship is self-imposed, and the runway is in current use, so
a variance is not essential for eqjOyment of property rights.
see A.R.S. § 12-1134(A) (providing that a taldng occurs if any of an owner's "existing rights to use, divide, sell or
possess private real property are reduced by the enactment or applicability" of a land use law).
9 The applicant argues that it holds prescriptive . easementrights.preVeuting development. Suffice it to say at this point,
Ms. Frima-Nobel argues that the applicant does nothave any such rights, especially as all use of the runway to date
has required the OPZ and RFZ located on the applicant's property. Earlier this year, counsel for the airpark demanded
recognition of its supposed prescriptive rights; Ms. Frima-Nobel disagreed and declined to do so. The applicant.then
from dropped its prescriptive easement theory, and is now attempting to get what it wants by obtaining an improper variance
the Zoning Ordinance instead. The applicant's effort to press its prescriptive easement theory — which so far
consists of one letter — does not justify the County taking sides and making a zoning decision that in effect validates
one property owner's claims in a potential civil dispute. Moreover, any supposed prescriptive easement does not
affect the fact that eliminating the OPZ and RFZ requir. ement ftyr a non-FAA and non-DOD airport is not allowed
under the Zoning Ordinance as currently written.
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