121725_BOA_REGULAR MEETING MINUTES.PDF
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Minutes of the Regular Meeting of the Board of Adjustment, of the City of Tempe, which was held in Council Chambers
31 East Fifth Street, Tempe, Arizona
Present:
Staff:
Chair Kevin Morrow
Jeff Tamulevich, Community Development Director
Vice Chair Mary Foy
Ryan Levesque, Comm Dev Deputy Director
Board Member Andrea Somishka
Eric Anderson, City Attorney
Board Member Lily Drosos
Diana Kaminski, Comm Dev Principal Planner
Board Member Katie Cross
Robert Mansolillo, Comm Dev Senior Planner
Board Member Raun Keagy
Joanna Barry, Comm Dev Administrative Assistant
Board Member Sean McCarley
Jason Wolf, Media
Absent: None
1) CALL TO ORDER: Hearing convened at 6:00 p.m. and was called to order by Chair Morrow.
2) CONSIDERATION OF MEETING MINUTES
2A) Board of Adjustment – 11/19/25 Study Session
2B) Board of Adjustment – 11/19/25 Regular Meeting
Motion by Vice Chair Foy to approve Meeting Minutes from Study Session and Regular Meeting from
November 19, 2025; second by Board Member Drosos.
Ayes: Chair Morrow, Vice Chair Foy, Board Members Somishka, Drosos and Cross
Nays: None
Abstain: Board Members Keagy and McCarley
Absent: None
Vote: Motion passes 5-0
3) VARIANCE REQUEST– NONE
4) ABATEMENT APPEAL – NONE
5) ADMINISTRATIVE DECISION APPEAL
Minutes of the
Board of Adjustment
REGULAR MEETING
December 17, 2025
BOARD OF ADJUSTMENT MINUTES
December 17, 2025
2
5A) Request an appeal of the Special Zoning Administrator’s Opinion that a Use Permit is not recommended for
the construction of a two-story detached accessory dwelling unit (ADU). The appellant is Dawn Sinclair.
(PL250363)
APPLICANT PRESENTATION:
Ms. Dawn Sinclair gave a presentation regarding the state ADU law in relation to the city requirement for a Use
Permit for a second story addition. Ms. Sinclair showed multiple clips from previous City Council meetings where the
City Attorney and a lawyer for a previous case told the City Council a Use Permit is needed to build a two-story ADU.
These same restrictions apply to single-family homes wishing to add a two-story addition. Ms. Sinclair reviewed the
state legislation with what is allowed and not allowed, including item #5 of the state law, that cities cannot be more
restrictive to ADUs than those for the single-family dwellings within the same zoning with regard to building height,
but does not reference story. Since the existing code requirement for the use permit is for a second story on a single-
story single-family residence, this would be allowed.Ms. Sinclair stated that the Zoning Administrator and City
Attorney are correct in stating that a Use Permit is required when adding a second story on an ADU. Ms. Sinclair
stated that per the state law, the city cannot consider the architecture of the residence for approval, but it can
consider architecture compatible with the surrounding neighborhood because the specific language of the state law is
based on the single-family home on the specific lot. Ms. Sinclair stated that the Special Zoning Administrator ignored
the principal of severability, courts won’t toss out an entire ordinance, they sever only the offending portion. The
appeal of the use permit is not about whether the owner can build an ADU, it is about a particular feature of the
proposed ADU, in this case the character of the ADU, is in conflict with the Cultural Resource Area of the General
Plan and Alameda Character Area Plan. We are asking the City to enforce the policies stated in the city General Plan
and Character Area Plan.
Chair Morrow asked Ms. Sinclair what her thoughts are on the three conditions in the Zoning Code if we accept that
the city can require a Use Permit for two-story ADU’s? Once we have the Use Permit in place, what is the issue with
having the additional conditions? Ms. Sinclair stated for those things that are in the ADU statute, that say ‘here is
what you cannot do’, I don’t think you can do it by ordinance or condition. We are stuck with the legislation, for better
or worse stating that additional parking cannot be imposed.
Vice Chair Foy asked to clarify statute 3-420.A is talking about a single-family residence, so to add, expand or rebuild
for a second story you need a Use Permit. If you are building a new single-family home on a lot, do you need a Use
Permit? Ms. Sinclair stated that the Use Permit is to add, expand or rebuild for a second story.
STAFF PRESENTATION:
Mr. Robert Mansolillo, Senior Planner for Community Development, gave a staff presentation on the dates involved in
the ADU Build- Harvey Residence.
Chair Morrow asked, if I wanted to build a two-story house in this zoning code over 30-feet, can I do that with a Use
Permit? Mr. Mansolillo stated that we cannot exceed the height requirements of the zoning code. In R1-6, the
maximum is 30 feet. Ms. Diana Kaminski stated there is a Use Permit Standard application process which allows a
deviation of up to 10%. It would allow 33 feet. Chair Morrow asked, can I build a 33-foot ADU with a Use Permit? Ms.
Kaminski stated that the Use Permit Standard is applied to the zoning district.
Vice Chair Foy asked, if it is a brand-new single-family home would they need a Use Permit to build a two-story? Mr.
Mansolillo stated that if there is an existing single-family (single-story) home and it is torn down to build a two-story
home, they would need a Use Permit. Vice Chair Foy asked if the lot had never been built upon, would the Use
Permit be required. Mr. Mansolillo clarified that if the lot had never been built before you would not need a Use
Permit. Chair Morrow asked if that was changed in the code in 2022? Mr. Levesque stated there were clarifying
amendments brought forward in that section.
Judge Gary Donahoe gave a presentation on his qualifications and interpretation of the statute. Judge Donahoe’s
assignment was to determine if the City may require a Use Permit to build a detached or attached two-story ADU. He
covered his qualifications as an independent evaluator of the city code and state statutes and the reasons for
interpretation. Judge Donahoe reviewed the state legislation and what can and cannot be regulated with regard to
ADUs in municipalities. His interpretation is that the 30-foot height limit applies to ADUs as the same height as the
BOARD OF ADJUSTMENT MINUTES
December 17, 2025
3
single-family zoning district, not to be treated differently from the main residence allowed height. The legislature has
taken almost all of the discretionary criteria out of the city’s control. Based on state law, two of the criteria for a use
permit cannot be applied, the architectural compatibility and requirement for parking. Looking at the legislative intent,
and the statutory intent is clear, taking out red tape and any subjective standard for permitting construction of an ADU
to simplify the process. The legislation does not reference second-story with regard to ADUs.
PUBLIC COMMENT:
Mr. Cameron Yarbrough, Tempe resident. Mr. Yarbrough is in opposition of a Use Permit not being needed for
second-story ADU’s. I bought my home in the Broadmor Neighborhood because it is a special neighborhood. All
homes are single stories. I live a mile in each direction from both homes referenced tonight. There is not another two-
story home in the neighborhood. I really want to keep it that way. I am one of the 302 signatures, and we want to
make sure we uphold the original decision.
Ms. Jana Lynn Granillo, Tempe resident. Ms. Granillo stated she was at the state legislation last session and plans to
be there again for the next session. To make any assumption on what the intent is for the legislation as a whole is a
misstatement. The induvial legislators all have different opinions. They rarely agree on many things.
APPLICANT RESPONSE:
Ms. Sinclair stated that Judge Donahoe said to listen to your attorney and that is exactly what I am telling you do too.
Listen to the City Attorney and Zoning Administrator who say yes, the City can require a Use Permit for a second
story. The City gave a clear rationale for why a Use Permit for a second-story house, you can require a Use Permit
for the ADU if it is a single-story single-family house. We cannot rely on what we think the legislature meant. It was
said that there was no mention of adding a second story on an ADU. That is one of the areas that the legislature has
left open. Mr. Danaho said there is nothing in that statute that says the City cannot prohibit or limit a second story on
an ADU, that is correct, there is nothing in the statute that addresses the second-story; the legislature talks about
height.
Vice Chair Foy stated that her understanding is that since there is a house there the ADU should be considered part
of the original home in applying that statute? Ms. Sinclair stated that on this particular lot if they wanted to add a
second story, or scrape the original home and build something new, they would require a Use Permit (for a second
story). The state statute says you can’t require anything more from an ADU than you do from the single-family home.
In this instance, because you could require a Use Permit for that particular single-family (single-story) home, you can
require the Use Permit for the ADU on that lot.
Chair Morrow asked if I had an undeveloped lot and I wanted to put a two-story house and I wanted to put a two-story
ADU I would not need a Use Permit because it is a new build. Ms. Sinclair stated yes, that’s the problem with having
a broad opinion that says you can or cannot. It is situational because of the Tempe ordinance.
STAFF RESPONSE:
Judge Donahoe stated that regarding the appellant’s argument, I have addressed that on page 6 2nd paragraph. It
states you cannot restrict the height. A 30-foot ADU would be a very high ceiling. If I build a 30-foot structure, it is
contemplated that it will have more than one level.
COMMISSION DISCUSSION:
Chair Morrow asked Mr. Eric Anderson, City Attorney, what his opinion of what our standard of review is? Mr.
Anderson stated that it is not clearly defined. It is clear that if this case, or any other case from the Board of
Adjustment, is appealed to Superior Court, the courts have spoken that it is about an abuse of discretion or clear
error type standard. Chair Morrow asked wouldn’t our interpretation of the zoning code slash state law be de novo
from the courts? Mr. Anderson stated from the legal aspect. If you believe that the Special Zoning Administrator
made an erroneous legal interpretation, or abuse of discretion, then you should act on that.
Board Member Keagy stated that the term “hired gun” has been used serval times in tonight’s meeting. Was the
Special Zoning Administrator contracted and compensated to produce his opinion? Mr. Anderson stated he is
BOARD OF ADJUSTMENT MINUTES
December 17, 2025
4
contracted and will be compensated. I disagree with the term “hired gun”. The judge has established his credentials.
He was asked to give his independent opinion; he was not sought to give a specific opinion, you will not find many
people in this state with both a law background and planning degree.
Chair Morrow stated that this is a tough issue and he believes Judge Donahoe was very qualified to give the opinion,
I am not sure I agree with it.
Board Member McCarley asked in the event that someone applies for an ADU do they go through a preliminary
review or design review process or do they just go straight to permits now? Does anybody get to see and approve
plans before it is built? Mr. Mansolillo stated no, it would just go straight to building permits. If it was identified at the
building permit stage that there was anything that would trigger a planning review then we would see it. Board
Member McCarley stated that seems troublesome to know my neighbor could build anything in their yard. It is a
complicated case.
Board Member Keagy stated on one hand we are asked to either agree with the Zoning Administrator’s Opinion that
a Use Permit is required for a second-story ADU or do we agree with the Special Zoning Adminstrator’s opinion that
a Use Permit is not required for a second-story ADU? Chair Morrow stated that is correct. It comes down to, does the
statute allow us to regulate height and is second-story part of height? Tempe is the only city that requires a Use
Permit to build a second-story addition to their house, not limiting the height but the number of stories. I think that is
what makes us special. Generally, the statute does not want hearings for ADUs, however, if you wanted to build a 33
foot tall ADU, you can, you would need a Use Permit (Standard), and if you wanted to build a two-story ADU, you
can, but you would need a Use Permit. I think that both interpretations are reasonable.
Vice Chair Foy stated that both interpretations are reasonable and Tempe is unique. In other areas this is not an
issue at all.
Board Member Somishka stated that the way that the state law is written is that ADU’s do not need a Use Permit,
they are permitted as is. The larger issue now there is a discrepancy between Tempe’s City Code versus what this
law is stating. My interpretation is that when constructing an ADU you may not require a public hearing to be had to
build one,that is what is written.
Vice Chair Foy stated that it does not say anything about a Use Permit, only that you cannot be more restrictive than
the residence zoning code. Chair Morrow stated yes, but you would need a hearing if you wanted to add a second-
story. Is this going to be treated like a new build? Or be treated like being built on a lot that already has a dwelling
unit on it.
Board Member Keagy stated that is how he looks at it too,the existing part. We have an existing structure, and the
regulations would require it if you put it on top of the existing structure so why not have that carry over to a new ADU
on an existing developed property.
Board Member Somishka stated that one of the reasons ADU’s are now permitted because the state of Arizona did
conduct a housing study in 2022 and the findings show that Arizona has a critical lack of affordable housing options,
which is why the state passed this legislation. This could potentially set a precedent in Tempe.
Chair Morrow stated as it stands this property owner isallowed to build 18-foot ADU, 3 feet higher than the house.
Just because Tempe requires a (Use) Permit for two-story ADU’s does not mean they won’t get built. If you don’t
want a two-story ADU then you can just build the ADU. Tempe has smaller lots than some of the other cities. It would
be harder to get an ADU without it being two-stories.
Vice Chair Foy stated if the legislation is quiet about a specific issue, then it can be regulated.
Board Member Somishka asked to clarify, is 1,000 square feet the maximum size for an ADU? Chair Morrow
confirmed, yes, this is the maximum.
BOARD OF ADJUSTMENT MINUTES
December 17, 2025
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Vice Chair Foy stated that 300-400 square feet is livable for one person. This is a legal question, and I think we
should allow the appeal to go forward and find for the appellant and go back to the City Council. I think there needs to
be more information on the intent of the legislation and what the City wants to do about it. There is no clear answer
within the state statute and a clear requirement within the code.
Board Member Keagy asked Vice Chair Foy to clarify that she is in favor of the appellant. Vice Chair Foy confirmed,
yes. Board Member Keagy stated he is in favor of the original Zoning Administrator’s opinion and the City Attorney’s
opinion that a Use Permit is required for two-stories.
Chair Morrow stated that we should support the City’s code as is, and if it is incompatible with Arizona law they
should take that to a Superior Court Judge. I am voting to approve the appeal.
Motion by Board Member Keagy to approve the appeal of the Special Administrator’s opinion with a finding that
the Special Administrator’s Opinion was incorrectly determined that a Use Permit is not permissible for the
construction of a two-story detached ADU; second by Vice Chair Foy.
Ayes: Chair Morrow, Vice Chair Foy, Board Members Drosos, Cross, Keagy and McCarley
Nays: Board Member Somishka
Abstain: None
Absent: None
Vote: Motion passes 6-1
6) CHAIR/STAFF UPDATE(S) AND ANNOUNCEMENT(S):
Chair Updates: Chair Morrow stated that this is the last meeting for Board Member Keagy and his last meeting
as Chair. Vice Chair Foy will attend virtually for the January meeting.
Board Member Keagy thanked all of Tempe City staff for everything. He will look for another board to serve on
next.
Staff Updates: None
7) ADJOURNMENT: Hearing adjourned at 7:47 p.m. by Chair Morrow.
Next meeting is scheduled for January 28, 2026
Prepared by: Jennifer Daniels, Administrative Assistant
Reviewed by: Diana Kaminski, Principal Planner