STAFF_REPORT_ADU_BUILD_HARVEY_RESIDENCE_APPEAL_030526.DOCX
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PL250081 – ADU BUILD – HARVEY RESIDENCE Page 1 March 5, 2026 STAFF REPORT ADU BUILD – HARVEY RESIDENCE (PL250081) PROJECT DATA: Project Address Property Owner 36 East Cairo Drive Michael Harvey and Mary Ann Harvey Appellant Applicant Dawn Sinclair 3C Contracting, LLC Zoning District R1-6 (Single-Family Residential) Gross / Net site area 0.17 acres Total Bedrooms 5 bedrooms (main residence) / 1 bedroom (accessory dwelling unit) Building Area 2,317 s.f. (Total) 692 s.f. (ADU) Total Lot Coverage 31% (45% maximum allowed) ADU Building Height 18’-4” (15’ maximum allowed) ADU Building Setbacks 65’-9” front, 6’-4” east side, 50’ 10” west side, 17’-3” rear (20’, 5’, 5’, 5’ min.) Vehicle Parking 2 spaces (2 min. required) COMMENTS On November 17, 2025, a building permit (BP250368) was issued for a single-story ADU at 36 East Cairo Drive. The applicant revised their plans from the original two-story ADU to a one-story ADU. As a result of the revised plans, the previously approved Use Permit should be vacated and the Appeal rendered moot. DEVELOPMENT REVIEW COMMISSION At the May 13, 2025 meeting, the Development Review Commission voted 6-0 to approve, on the consent agenda, two (2) Use Permits for the Harvey Residence ADU project (PL250081). The approval was for a Use Permit to allow a two-story accessory dwelling unit (ADU) and a Use Permit to allow an increase in height of an accessory building over 15'. Due to this being approved on the consent agenda, no discussion or public testimony was heard. Prior to the hearing, staff received no comments in opposition to the requests. On May 22, 2025, Dawn Sinclair submitted an Appeal of the Development Review Commission’s approval of PL250081, stating that approval would be inconsistent with the surrounding neighborhood, create additional traffic, and decrease property values. Dawn Sinclair was not notified of the May 13th DRC hearing because she does not live within the 600’ notification area and lives approximately a half mile from the project site. With new code text implementation, and advisement from the City Attorney’s office, staff issued a Zoning Administrator’s Opinion on June 6, 2025, stating that a Use Permit is not required for height above the maximum height allowed for detached accessory buildings (15’) for an accessory dwelling unit (ADU). This opinion was issued to clarify existing adopted code language as it relates to the state mandated development of an ADU (A.R.S. §9-461.18). A similar letter was also issued to the appellant, Dawn Sinclair, regarding the ZA Opinion which would have an effect on the appeal of the decision made by the Commission. The ZA Opinion would dismiss the need for the Use Permit relating to the height of the ADU, thereby the eligibility of an appeal of this specific Use Permit. However, the appeal of Use Permit for the two-story addition would still be heard by City Council. PL250081 – ADU BUILD – HARVEY RESIDENCE Page 2 March 5, 2026 BOARD OF ADJUSTMENT On June 17, 2025, Dawn Sinclair filed an appeal of the Zoning Administrator’s opinion (PL250217), challenging that the Zoning Administrator does not have the authority to dismiss an appeal or change zoning regulations. The appeal also contested that no longer requiring a Use Permit for ADU height is legally incorrect. At their July 23, 2025, meeting, the Board of Adjustment voted 6-1 to deny the appeal and upheld the Zoning Administrator’s opinion that a Use Permit is not required for height above the maximum height allowed (15 feet) for detached accessory buildings that are accessory dwelling units (ADU) because of statutory requirements, and upheld the Zoning Administrator’s decision that only one Use Permit request is eligible for appeal to the City Council for the ADU-HARVEY RESIDENCE, which is the Use Permit to allow a second story. CITY COUNCIL At the September 18, 2025, meeting, Tempe City Council heard the appeal of the remaining prior Use Permit approval to allow a second story for an ADU building. During the hearing deliberation, Council moved to postpone the appeal decision and directed staff to prepare a formal Zoning Administrator’s Opinion to clarify the legality of requiring a Use Permit to construct a two-story ADU against the State Law provisions (7-0 vote approval). The Community Development Director sought an outside expert and delegated the Honorable Gary Donahoe to serve as Special Zoning Administrator to render this interpretation. Judge Donahoe (ret.) was asked to provide guidance on whether the Use Permit process, as set forth in the Tempe Zoning and Development Code, be required for an application for a second- story Accessory Dwelling Unit (ADU) at the Harvey residence, consistent with state law? If the answer to this question is “yes,” are there any limitations that should be placed on the City’s Use Permit process in order to remain consistent with state law? And, to what extent, if any, can the City require a Use Permit process for second-story ADU applications in general? On October 3, 2025, Honorable Gary Donahoe issued a Special Zoning Administrator’s Opinion stating that the City of Tempe does not have the legal authority to require a Use Permit pursuant to ZDC Section 3-420 for any two-story ADU because it conflicts with A.R.S. § 9-461.18. BOARD OF ADJUSTMENT October 20, 2025, Dawn Sinclair submitted an Appeal of the Special Zoning Administrator’s Opinion (PL250363). December 17, 2025, the Board of Adjustment voted 6-1 to approve the appeal and overturn the Special Zoning Administrator’s Opinion stating that the City of Tempe does have the legal authority to require a Use Permit for a two-story ADU. The result is that the City of Tempe shall continue to require a Use Permit for a two-story ADUs. PUBLIC INPUT Staff have not received any new public comments since the September 18, 2025, City Council meeting. USE PERMIT REVIEW CRITERIA AND OPTIONS: Council’s Options on Appeal Vacate the approval of the Use Permit and render the appeal moot. Approve the appeal of the Development Review Commission’s decision (find in favor of the appellant and effectively deny the Use Permit which would prevent the development project moving forward without further changes to the site plan); PL250081 – ADU BUILD – HARVEY RESIDENCE Page 3 March 5, 2026 Deny the appeal of the Development Review Commission’s decision (find in favor of the DRC, and effectively approve the Use Permit; project would move forward to next steps); Deny the appeal of the Development Review Commission’s decision, with modified or added conditions (the Council may decide that conditions are needed to address any deleterious effects from the proposed use). The City Council may choose to keep, modify, or add to any proposed conditions; Continue to a future date certain, requesting additional information before making a final decision on the appeal; or, Remand back to the Development Review Commission for further consideration on the Use Permit issues raised. If this occurs, Council should give specific direction to DRC as to why they are sending back for further consideration. Zoning and Development Code Use Permit The ZDC sets out the approval criteria for Use Permit to be considered to include the following: Section 6-308(E) Approval Criteria for a Use Permit: 1. A use permit shall be granted only upon a finding by the decision-making body, that the use covered by the permit, the manner of its conduct, and any buildings which are involved, will not be detrimental to persons residing or working in the vicinity, to adjacent property, to the neighborhood, or to the public welfare in general, and that the use will be in full conformity to any conditions, requirements, or standards prescribed therefore by this Code. 2. In arriving at the above determination, the following factors shall be considered, but not be limited to: a. Any significant increase in vehicular or pedestrian traffic. b. Nuisance arising from the emission of odor, dust, gas, noise, vibration, smoke, heat or glare at a level exceeding that of ambient conditions. c. Contribution to the deterioration of the neighborhood or to the downgrading of property values, the proposed use is not in conflict with the goals objectives or policies for rehabilitation, redevelopment or conservation as set forth in the City’s adopted plans or General Plan. d. Compatibility with existing surrounding structures and uses. e. Adequate control of disruptive behavior both inside and outside the premises which may create a nuisance to the surrounding area or general public. Section 3-420(C) Additional Use Permit approval criteria for second-story additions: 1. The proposed second story is designed to be compatible with the architecture of the residence and compatible with the surrounding neighborhood. 2. There are design considerations for privacy to adjacent properties and protection of existing solar appurtenances on adjacent lots. 3. There is sufficient parking on site or on the street frontage to accommodate guests. Addition shall be required to meet current single family parking standards pursuant to Section 4-603, parking ratios. PL250081 – ADU BUILD – HARVEY RESIDENCE Page 4 March 5, 2026 Zoning and Development Code Appeal Criteria Section 6-803 A. 1. The petition for appeals to the City of Tempe shall contain: a. The name of the applicant and the city case file number; b. The name, address and signature of each petitioner; and c. The specific grounds for appeal. The appeal shall be limited to the issue(s) raised in the petition. STAFF EVALUATION AND RECOMMENDATION The request for a Use Permit for a two-story addition was reviewed by staff twice since March of 2025. During these reviews, Planning staff provided comments and corrections which the original applicant took into consideration for a later submittal of the proposal. The largest change to the development included removing second story windows from the proposed building. Staff recommended the second story windows be removed due to privacy concerns that could be raised by neighbors. That applicant agreed with these concerns and removed the windows, as shown in the final submittal of the site plans and building elevations. In analyzing the request for the Use Permit, staff concluded that the five criteria and additional three criteria for second-story additions were met by the proposed design and recommended the Use Permit for approval by the Development Review Commission. The only unique condition of approval was to require that the ADU be painted to match the existing house. On November 17, 2025, a building permit (BP250368) was issued for a single-story ADU at 36 East Cairo Drive. The applicant revised their plans from the original two-story ADU to a one-story ADU. The City also received a formal withdrawal of the use permit to allow a 2nd story ADU. Staff, therefore, recommend that the City Council vacate the decision made by the DRC and render the appeal moot.