08. BA250011 BOA Staff Report
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Report to the Board of Adjustment Prepared by the Maricopa County Planning and Development Department Case: BA250011 – Kennedy Property Hearing Date: April 17, 2025 Supervisor District: 4 ____________________________________________________________________________________________ Applicant: Christopher Pela Property Owner: Terry Kennedy Request: Variance to the development standard of the Maricopa County Zoning Ordinance to permit: 1) A street-side setback of 8 ft. where 20 ft. is the minimum permitted per MCZO Article 503.4.1.C Site Location: APN 202-12-041A @ 47709 N. 43rd Ave – 43rd Ave. & Devil Springs Rd., in the New River area Site Size: 87,450 sq. ft. Current Use / Zoning: Single family residence / Rural-43 Background: 1. May 19, 2003: Subject parcel created, split from parent parcel 202-12-041. 2. May 29, 2003: Permit B200306663 issued for manufactured home. 3. October 2012: A shade structure appears near the center of the property on County historical aerials. No violation is reported for the unpermitted construction of this shade structure. 4. Circa 2020: A red sea container appears in aerial photos at the northeast corner of the property within the 20’ street side setback. No violation is reported for the unpermitted placement. 5. Circa 2022: A second sea container appears in aerial photos south of the existing sea container at the northeast corner of the property. A shade structure is also captured in aerial photography at the southwest corner of the existing residence. No violation is reported for the unpermitted placement of these structures. 6. September 27, 2023: Current owner takes possession of subject property. 7. July 24, 2024: Date BOS passed and adopted patent easement abandonment (road file PAB-0258) for patent easement recorded along the northern 50’ within subject property. Although it changed the setback line, abandonment of this easement did not change the street-side setback requirement due to the existing patent easement along the shared lot line of the parcel to the north under separate ownership. Page 2 of 11 8. October 8, 2024: Applicant submits inquiry 88582 to department requesting setbacks for a detached garage. 9. November 12, 2024: Minor electrical permit BLDR2402436 issued for 400-amp service upgrade in preparation for accessory structure with utilities. Final inspection scheduled for 1/10/2025. 10. Circa November – December 2024: Concrete floor and garage door apron between the existing sea containers along with white domed roof structure and two roll up garage doors enclosing the existing two sea containers creating a makeshift RV garage appear in County aerial photography. An additional sea container is placed to the south of the makeshift garage. No violation is reported for the unpermitted RV garage enclosure and placement of the third sea container. 11. January 3, 2025: Final inspection cancelled for minor electrical permit BLDR2402436. 12. February 7, 2025: File date for accessory building permit BLDR2501101. Building permit plans show entirely new structure to replace the existing unpermitted makeshift RV garage above the existing sea containers. The new structure also proposes connection to the existing, unpermitted sea container to the south of the makeshift RV garage. Permit not issued due to not meeting the minimum required 20’ street-side setback as measured from the north lot line due to a 50’ patent easement on the adjacent property along this lot line. 13. March 6, 2025: File date for subject variance application. Existing On-Site and Surrounding Zoning/Land Use: 14. On-site: Rural-43 / Single-family residence North: Devil Springs Rd (aforementioned 50’ patent easement) then Rural-43 / Single-family residence South: Rural-43 / Single-family residence East: Rural-43 / Vacant West: City of Phoenix / Vacant (State Trust) Variance Request: 15. The applicant is requesting a variance for a reduced street-side setback. The parcel is considered a corner lot due to a 50’ patent easement existing on the adjacent parcel to the north under separate ownership. Yards along each street side of corner lots are regulated as front yards, where no structures may be permitted. The following exhibit from MCDOT Road Information Tool (RIT) highlights in blue the portion of the patent easement within the subject property that has been abandoned. The non-highlighted portion above the red property line within the purple hatching is the remaining 50’ patent easement for Devil Springs Rd. This easement on an adjacent parcel under separate ownership, exists and thus is considered a street rendering the subject parcel a corner lot. Page 3 of 11 Patent Easement Area (RIT) Page 4 of 11 Excerpt from proposed site plan Site Analysis: 16. The site is relatively unremarkable in a minimally developed lot split area of New River west of the I-17 and north of New River Rd. with access via an unpaved patent easement identified as 43rd Ave. Subject site is already developed with a single-family residence and several accessory structures. Page 5 of 11 2024 Aerial photo of subject site Page 6 of 11 2025 Aerial photo of subject site Page 7 of 11 Aerial image & surrounding environs Page 8 of 11 Zoning District map Zoning District Standards: 17. The following table is included to illustrate and contrast the standards for the underlying zoning district with those proposed by the owner (Note: changes to proposed standards are indicated in bold). Standard Rural-43 Zoning District Proposed with Variance Min. Front Yard Setback (west) 40-feet n/a Min. Rear Yard Setback (east) 40-feet n/a Min. Side Yard Setback (south) 30-feet n/a Min. Street Side Setback (north) 20-feet 8-feet Maximum Height 30-feet n/a Page 9 of 11 Minimum Lot Area 43,560-sq. ft. n/a Minimum Lot Width 145-feet n/a Max. Lot Coverage 25% n/a Note: Standards indicated in bold do not meet base zoning standards State Statute / County Zoning Ordinance Tests - ARS § 11-816.B.2 and MCZO Article 303.2.2 states the Board of Adjustment may, “Allow a variance from the terms of the ordinance if, owing to peculiar conditions, a strict interpretation would work an unnecessary hardship and if in granting the variance the general intent and purposes of the zoning ordinance will be preserved.” 18. Statutory Test -1 Does the applicant’s property contain any peculiar condition– Discuss and explain what is/are the peculiar conditions facing the property and include reference to the Maricopa County Zoning Ordinance Regulations or Development Standards to be varied. “This variance request seeks approval for an 8-foot side yard setback for a detached garage, in lieu of the required 20-foot setback for corner lots. The subject property is classified as a corner lot due to the presence of an adjacent Federal Patent Easement (FPE); however, this easement has never been used as a roadway and is not anticipated to serve such a function in the future. The properties adjacent to this easement have long functioned as interior lots, further supporting the argument that the classification of this property as a corner lot is misapplied. 1. Easement Misclassification: The property is designated as a corner lot because of the adjacent FPE, which has never been used as a roadway, and there is no indication it will be in the future. The adjacent properties have long been developed and function as interior lots. 2. Easement Abandonment: The section of the FPE that affects the property has already been abandoned, which substantiates its lack of potential to be used for road access or any similar purpose. 3. Lot Characteristics: The subject property functions in all practical respects as an interior lot, with no distinction in terms of access or utility from surrounding interior properties. The corner lot classification, based on the presence of the FPE, is therefore arbitrary and inconsistent with the actual use of the land. 4. Minimal Impact: The granting of the requested 8-foot setback would have no adverse impact on traffic, access, or the safety of adjacent properties, as the FPE is not a functioning roadway. The reduced setback would not obstruct visibility or create any safety concerns for adjacent properties. 5. Hardship of Enforcing the 20-Foot Setback: Enforcing the 20-foot setback requirement would impose an unreasonable restriction on the use of the property without serving the intended purposes of the zoning regulations, namely traffic safety and road access. The FPE’s lack of functionality as a roadway renders the setback requirement unnecessary, limiting the feasible use of the property without providing any benefit to the public. In light of the abandonment of the FPE and its non-functional status as a roadway, as well as the property’s operational characteristics as an interior lot, we respectfully request a variance to reduce the side yard setback to 8 feet. This variance would allow for reasonable development of the property while still respecting the overall intent of the zoning regulations.“ 19. Statutory Test 2 – Does applying the requirements of the Ordinance to the applicant’s property create an Unnecessary Hardship – Explain how the peculiar condition identified in #1 causes an unnecessary hardship to the property when the requirements of the Maricopa County Zoning Ordinance are applied. Explain how the that the peculiar condition of the property came to be and whether the condition was created by the applicant or someone in the property’s line of title. Explain the proposed use of the property with the variance request. Identify and explain all peculiar conditions on your property in regard to the following areas: slope, narrowness, shallowness, irregular shape, location, washes, vegetation, and easements, etc. Explain how enforcement of the Zoning Regulations or Development Standards would impose a hardship on the property. Page 10 of 11 “The hardship arises from the property’s technical classification as a corner lot due to an adjacent FPE. This classification imposes a setback requirement that does not align with the lot’s practical use, preventing reasonable development. The FPE existed before current ownership and was not created by any action within the line of title. The abandonment of the portion of the easement on this property reinforces that the easement is not functioning as a roadway and is unlikely to in the future. If classified as an interior lot, the proposed garage placement would be fully compliant” 20. Statutory Test 3 – General Intent and Purpose of the Zoning Ordinance – Discuss the purpose of the zoning requirement from which the variance is being sought. Then, discuss and explain how, provided statutory tests #1 and #2 are satisfied, the granting of the requested variance would preserve the general intent and purpose of the Zoning Ordinance. “The purpose of the setback rule for corner lots is to maintain visibility, access, and safety. Since the FPE does not serve as a roadway and is unlikely to in the future, these concerns do not apply. Approving the variance allows reasonable development consistent with similar lots while upholding the zoning code’s intent. The 8-foot setback will not affect traffic, neighboring properties, or community aesthetics but instead removes an arbitrary restriction.” Findings: 21. The applicant has the burden of proving to the Board that, in accordance with the standard set forth in ARS §11-816.B.2 and MCZO Article 303.2.2, the property requires a variance. To grant the relief, the applicant must prove, and the Board must find and identify, a physical condition of the applicant’s property that is peculiar and not common to the area or the universe of the zoning district. Also, any such peculiarity must not have been created either by the applicant or anyone in the chain of title. If the Board determines that there is no such peculiar physical condition, its inquiry stops, and the application must be denied. If the Board identifies a peculiar physical condition of the applicant’s property which is not self- imposed, then the applicant must prove, and the Board must find and identify, an unnecessary hardship imposed upon the property due to the strict application of the requirements of the zoning ordinance which the applicant wishes to have varied such that there is no viable use of the property without the variance. If the Board identifies a peculiar physical condition of the property which is not self-imposed, and that in applying the requirements of the zoning ordinance to the property, because of the peculiar physical condition, an unnecessary hardship exists, the applicant must prove, and the Board must find and identify, how the granting of the variance will preserve the general intent and purpose of the zoning ordinance. In order to approve the variance the Board must make findings and articulate them in motion memorializing the above. 22. Based upon what the applicant has submitted and the staff analysis in this report, staff offers the following positive and/or negative observations the Board may consider in its findings: After reviewing the submission, Staff is unable to identify a peculiar condition of the property that warrants a variance. The site is already developed with a single-family residence. There are other Page 11 of 11 areas within the parcel where a detached accessory structure may be located without variance, including as close as 3’ from the south lot line (within the interior 30’ side setback of the principal building envelope). 23. And further, if the Board finds the applicant has satisfied the statutory test, and has stated its findings on the record, the grant of this variance will memorialize the following: a) Variance approval establishes an 8’ (north) street-side setback line for APN 202-12-041A. Presented by: Daniel Johnson Reviewed by: Darren V. Gérard, AICP, Planning Manager Attachments: Case Map (1 page) Application / Supplemental Questionnaire (2 pages) Site Plan (1 pages) / Maricopa County Planning & Development - Phoenix, AZ 4 Gross Acres: 2 approx. Generated April 9, 2025 10:45 AM BA250011 Application Name: Legal Description TK ADVENTURES Applicant Case Address 7N 2E 27 Christopher Pela 47709 N 43RD AVE Applicant Phone/Email Parcel Primary:202-12-041A (602) 759-0769 studio@studiopela.com NEW RIVER, AZ 85087 Map scale 1:818 Supervisor District No. ALLOW A REDUCED ACCESSORY BUILDING SETBACK OF 8 FEET FROM THE NORTH PROPERTY LINE IN ORDER TO ACCOMODATE A NEW DETACHED GARAGE. timkennedy48@gmail.com BA250011 RCVD 3/6/25 Planning & Development Department 301 W. Jefferson St., Suite 170 Phoenix, Arizona 85003 P: 602.506.3301 Variance Application Packet 12/1/23 VARIANCE SUPPLEMENTAL QUESTIONNAIRE ARS §11-816 B.2 The Board of Adjustment may allow a variance from the terms of the ordinance when, owing to peculiar conditions, a strict interpretation would work an unnecessary hardship, if in granting such variance the general intent and purposes of the zoning ordinance will be preserved. 1. Please discuss and explain what is/are the peculiar condition(s) facing the property and include reference to the Maricopa County Zoning Ordinance Regulation(s) or Development Standard(s) to be varied. Explain the proposed use of the property with the variance request. Identify and explain all peculiar conditions on your property in regard to the following areas: slope, narrowness, shallowness, irregular shape, location, washes, vegetation, and easements, etc. Explain how enforcement of the Zoning Regulation(s) or Development Standard(s) would impose a hardship on the property. 2. Please explain the unnecessary hardship the Maricopa County Zoning Ordinance creates because of a peculiar condition/the peculiar conditions on site. Please discuss and explain that the peculiar condition of the property is not self-created in the line of title. This variance request seeks approval for an 8-foot side yard setback for a detached garage, in lieu of the required 20-foot setback for corner lots. The subject property is classified as a corner lot due to the presence of an adjacent Federal Patent Easement (FPE); however, this easement has never been used as a roadway and is not anticipated to serve such a function in the future. The properties adjacent to this easement have long functioned as interior lots, further supporting the argument that the classification of this property as a corner lot is misapplied. 1.Easement Misclassification: The property is designated as a corner lot because of the adjacent FPE, which has never been used as a roadway, and there is no indication it will be in the future. The adjacent properties have long been developed and function as interior lots. 2.Easement Abandonment: The section of the FPE that affects the property has already been abandoned, which substantiates its lack of potential to be used for road access or any similar purpose. 3.Lot Characteristics: The subject property functions in all practical respects as an interior lot, with no distinction in terms of access or utility from surrounding interior properties. The corner lot classification, based on the presence of the FPE, is therefore arbitrary and inconsistent with the actual use of the land. 4.Minimal Impact: The granting of the requested 8-foot setback would have no adverse impact on traffic, access, or the safety of adjacent properties, as the FPE is not a functioning roadway. The reduced setback would not obstruct visibility or create any safety concerns for adjacent properties. 5.Hardship of Enforcing the 20-Foot Setback: Enforcing the 20-foot setback requirement would impose an unreasonable restriction on the use of the property without serving the intended purposes of the zoning regulations, namely traffic safety and road access. The FPE’s lack of functionality as a roadway renders the setback requirement unnecessary, limiting the feasible use of the property without providing any benefit to the public. In light of the abandonment of the FPE and its non-functional status as a roadway, as well as the property’s operational characteristics as an interior lot, we respectfully request a variance to reduce the side yard setback to 8 feet. This variance would allow for reasonable development of the property while still respecting the overall intent of the zoning regulations. The hardship arises from the property’s technical classification as a corner lot due to an adjacent FPE. This classification imposes a setback requirement that does not align with the lot’s practical use, preventing reasonable development. The FPE existed before current ownership and was not created by any action within the line of title. The abandonment of the portion of the easement on this property reinforces that the easement is not functioning as a roadway and is unlikely to in the future. If classified as an interior lot, the proposed garage placement would be fully compliant. BA250011 RCVD 3/6/25 Planning & Development Department 301 W. Jefferson St., Suite 170 Phoenix, Arizona 85003 P: 602.506.3301 Variance Application Packet 12/1/23 3. Please discuss and explain how the granting of the requested variance would not cause a negative impact on the general intent and purpose of the Zoning Ordinance. *Additional sheets may be attached. ** DO NOT USE THIS FORM IF YOU ARE SUBMITTING AN INTERPRETATION The purpose of the setback rule for corner lots is to maintain visibility, access, and safety. Since the FPE does not serve as a roadway and is unlikely to in the future, these concerns do not apply. Approving the variance allows reasonable development consistent with similar lots while upholding the zoning code’s intent. The 8-foot setback will not affect traffic, neighboring properties, or community aesthetics but instead removes an arbitrary restriction. © Kennedy Property BA250011 RCVD 3/6/25