EXHIBITS_ADU_BUILD_HARVEY_RESIDENCE_030526.PDF
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EXHIBITS
for
APPEAL OF ADU BUILD HARVEY RESIDENCE
(PL250081)
1-5.
December 17, BOA Regular Meeting minutes
6-9.
December 17, 2025, BOA Staff Report
10.
Appellant Letter of Explanation Special ZA Opinion Appeal
11-17.
Special Zoning Administrator’s Opinion Letter from October 3, 2025
18.
Judge Gary E. Donahoe Biography
19-21.
September 30, 2025, Community Development Director’s Memorandum of
Temporary Designation as Zoning Administrator
22-24.
September 18, 2025, City Council Regular Meeting minutes for Item 8A1.
25-29.
July 23, 2025, BOA Regular Meeting minutes
30-32.
July 23, 2025, BOA Staff Report
33-34.
Appellant Letter of Explanation ZA Opinion Appeal
35-36.
Zoning Administrator’s Opinion Letter from June 6, 2025
37-38.
Appellant Letter of Explanation for DRC Appeal
39-53.
Harvey Residence ADU (PL250081) Staff Report with Exhibits
54-55.
Arizona Revised Statute 9-461.18 - Accessory Dwelling Units
56-60.
Harvey Residence Revised ADU Plans – Single Story
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
EXHIBIT 1
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
EXHIBIT 2
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
EXHIBIT 3
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.
EXHIBIT 4
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
EXHIBIT 5
PL250363 – ZONING ADMINISTRATOR’S OPINION APPEAL
Page 1
December 17, 2025
STAFF REPORT
ZONING ADMINISTRATOR’S OPINION APPEAL
(PL250363)
COMMENTS
At the May 13, 2025 meeting, the Development Review Commission voted on the consent agenda 6-0
to approve 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 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’) used as 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 was still eligible
and would still be heard by City Council.
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, for the ADU-HARVEY RESIDENCE.
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
EXHIBIT 6
PL250363 – ZONING ADMINISTRATOR’S OPINION APPEAL
Page 2
December 17, 2025
Permit process for second-story ADU applications in general?
On October 3, 2025, Honorable Gary Donahoe issued a 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.
The appellant is now seeking to appeal a Zoning Administrator’s Opinion as it relates to two-story
accessory dwelling units (ADU). The appellant states that the Special Zoning Administrator’s
interpretation is incorrect, and that the interpretation conflicts with legal advice given to City Council by
the City Attorney and a de facto interpretation by the actual Zoning Administrator.
STAFF EVALUATION AND RECOMMENDATION
On October 3, 2025, Honorable Gary Donahoe issued a 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 the Use
Permit process requires at least one (1) public hearing, and at least two of the criteria that could be used
to deny a Use Permit for a second story addition, conflict with A.R.S. § 9-461.18. Therefore, the Special
Zoning Administrator’s Opinion is that the Use Permit requirements when applied to any two-story ADU
conflicts with the express language and legislative intent of A.R.S. § 9-461.18 and is there for unlawful.
The Special Zoning Administrator’s Opinion states that the intention of A.R.S. § 9-461.18 is to facilitate
the construction of ADUs by removing almost all city-imposed restrictions or barriers that normally apply
to gaining approval for the construction of a single-family residence and making the construction of an
ADU that complies with the requirements of the state law, a matter of right. This includes removing
almost all discretions that might be used by a municipality to deny construction of ADUs. A.R.S. § 9-
461.18.H. provides that an ADU is a “permitted use,” and as such, obtaining a “conditional use permit,
special permit or special exception” cannot be a requirement for construction of an ADU. A.R.S. § 9-
461.18 does not limit the statute’s provisions to one-story ADUs, attached, or detached ADUs.
Certain criteria to be considered in deciding whether to grant a Use Permit for a second story also conflict
with A.R.S. § 9-461.18. ZDC Section 3-420.C. sets forth the following “[a]dditional criteria for determining
approval of a use permit:”
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; and
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.
A.R.S. § 9-461.18.B.3. states that a municipality may not require that a lot or parcel have additional
parking to accommodate an ADU and also prevents a municipality from requiring that an ADU match
the exterior design, roof pitch or finishing materials of the single-family dwelling that is located on the
same lot. The criteria set forth in ZDC Section 4-420.C., subparagraphs 1 and 3, as shown above, are
in direct conflict with those provisions of § 9-461.18.
The State statute expressly prohibits a municipality from imposing any condition for the construction of
an ADU that requires a public hearing. The initial consideration of a Use Permit by the DRC requires a
public hearing, and if there is an appeal, a second public hearing will take place in front of the City
Council. Requiring an applicant of any two-story ADU to obtain a Use Permit, which requires a public
hearing along with the possibility of a second public hearing if there is an appeal, conflicts with the
express language of A.R.S. § 9-461.18.
EXHIBIT 7
PL250363 – ZONING ADMINISTRATOR’S OPINION APPEAL
Page 3
December 17, 2025
The appellant states that the Special Zoning Administrator’s interpretation is incorrect, and that the
interpretation conflicts with legal advice given to City Council by the City Attorney “and a de facto
interpretation by the actual Zoning Administrator.” No explanation was provided to substantiate these
claims.
The Board of Adjustment’s role with respect to appeals of a Zoning Administrator’s Opinion is to
determine whether the appeal is valid based both on information that was provided to the Zoning
Administrator as well as new information brought to bear as part of the appeals process. The Board
may:
Approve the appeal with a finding that the Special Zoning Administrator’s Opinion was incorrectly
determined, thereby overturning the most recent Zoning Administrator’s Opinion;
Deny the appeal and re-affirm the Special Zoning Administrator’s Opinion, thereby upholding the
most recent Zoning Administrator’s Opinion;
Approve the appeal with modifications. Amending the language of the Special Zoning
Administrator’s Opinion based on specific facts presented or arguments made.
STANDARD OF REVIEW
The State Legislature has required that each municipality “establish the office of zoning administrator”
and “[t]he zoning administrator is charged with responsibility for enforcement of the zoning ordinance.”
A.R.S. § 9-462.05. The Tempe Zoning and Development Code (“ZDC”) confirms that the Zoning
Administrator (“ZA”) is charged with the duty to interpret and enforce the Code. Tempe ZDC, § 1-303.
The State Legislature also requires each municipality to establish a Board of Adjustment. A.R.S. § 9-
462.06. Thus, this Board is constituted in accordance with Tempe ZDC, § 1-306. A.R.S. § 9-462.06
vests this Board with the authority to:
Hear and decide appeals in which it is alleged there is an error in an order, requirement or
decision made by the zoning administrator in the enforcement of a zoning ordinance adopted
pursuant to this article.
A.R.S. § 9-462.06(G)(1) (emphasis added). Therefore, the Board should review to determine if the ZA’s
interpretation is either not supported by credible evidence or incorrectly applied the law. See, e.g.,
Stanwitz v. Reagan, 245 Ariz. 344, 348, ¶ 13 (2018), as amended (Nov. 27, 2018).
HISTORY & FACTS
December 19, 1987 City Council approved Zoning Code requiring a Use Permit for a single-family
single-story residence to add a second story addition, modification or new
construction if there were no prior two-story structures on site.
May 21, 2024
Arizona State Legislature adopts state statues § 9-461.18 requiring municipalities
to update the zoning codes to allow Accessory Dwelling Units and establishes
standards that supersede local jurisdictional authority.
November 21, 2024 City Council adopts O2024.51 an Ordinance to amend the Zoning and
Development Code for Part 3 relating to Accessory Dwelling Units (ADU).
March 11, 2025
Development Review Commission approves a Use Permit to allow a second-story
addition and a Use Permit to increase the allowed height for an accessory building
from 15 feet to 24 feet in the R1-6 zoning district for COLLEGE AVE ADU, located
EXHIBIT 8
PL250363 – ZONING ADMINISTRATOR’S OPINION APPEAL
Page 4
December 17, 2025
at 2021 South College Avenue. The applicant is Hickory Wind Construction, LLC.
(PL240442)
March 18, 2025
An application is accepted for a Use Permit to allow a two-story ADU and a Use
Permit to increase the allowable height of an accessory building from 15’ to 18’-4”
for ADU BUILD – HARVEY RESIDENCE, located at 36 East Cairo Drive.
(PL250081)
May 13, 2025
Development Review Commission approved PL250081, a request for a Use
Permit to allow a two-story ADU and a Use Permit to increase the allowable height
of an accessory building from 15’ to 18’-4”.
May 22, 2024
Dawn Sinclair submitted an Appeal of the Development Review Commission’s
approval of PL250081.
June 6, 2025
Staff issued a Zoning Administrator’s Opinion 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), based on state laws regarding
municipal regulatory limits on ADUs.
June 17, 2025
Dawn Sinclair submitted an Appeal of the Zoning Administrator’s Opinion
(PL250217).
July 23, 2025
Board of Adjustment voted 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 used
as accessory dwelling units (ADU).
September 18, 2025 City Council postponed the decision on the use permit appeal and directed staff to
prepare a formal Zoning Administrator’s Opinion to clarify the legality of requesting
a Use Permit to construct a two-story ADU pursuant to Section 3-420 of the Tempe
Zoning and Development Code.
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.
October 20, 2025
Dawn Sinclair submitted an Appeal of the Zoning Administrator’s Opinion
(PL250363).
December 17, 2025 This item is scheduled to be heard by the City of Tempe Board of Adjustment.
EXHIBIT 9
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EXHIBIT 17
Biography of Gary E. Donahoe
GARY E. DONAHOE is an Arizona native. In addition to a M.S. degree in urban planning, he holds
a B.A. degree in psychology and a J.D. degree with honors from the University of Arizona. After
completing his thesis for his master’s degree, he did a six-month internship with the City of Tucson
Planning Department. He then was employed by the Northern Arizona Council of Governments as
an urban and regional planner where part of his duties was to staff the planning and zoning
commissions of several municipalities in northern Arizona. He wrote zoning ordinances, general
plans and capital improvement plans for several of those communities. He left that position to return
to law school. His first position at NACOG was as an Associate Planner; when he left, he was the
Director of Planning for NACOG.
He practiced law for ten years before being appointed in 1989 as a Commissioner of the Maricopa
County Superior Court. In July 2000, he was appointed a Judge of the Arizona Superior Court. Judge
Donahoe handled civil, probate, mental health, family court and criminal calendars. Judge Donahoe
served as the chairperson of the State Bar Criminal Jury Instruction Committee for five years. In
2004, the Phoenix Chapter of the American Board of Trial Advocates named Judge Donahoe “Judge
of the Year”. In 2007, Judge Donahoe received the State Bar of Arizona’s “Award of Special Merit.”
Judge Donahoe was the recipient of the 2008 “Judicial Award of Excellence” from the Public Lawyers’
Section of the State Bar of Arizona. Judge Donahoe served as the Rule 32 (Post-Conviction Relief)
Management Unit Judge, the Criminal Department Presiding Judge and the Probate Department
Associate Presiding Judge. Judge Donahoe received the Arizona Association for Justice’s “Judicial
Integrity Award” in 2012. At CTC 9 in Seattle, Washington, Judge Donahoe was a featured speaker
on the use of courtroom technology by judges. For over twenty years, Judge Donahoe was faculty
for Arizona Judicial College programs including New Judge
Orientation (both for general jurisdiction and limited jurisdiction
judges), Arizona Probation Officer Certification Academy and
Civil Traffic Hearing Officer Training. Judge Donahoe retired
from the bench in 2011, but has handled several criminal cases
as an on-call Superior Court judge and does private mediations.
In 2018, Judge Donahoe was nominated for a judgeship on the
Appeals Tribunal of the United Nations internal justice system.
In 2022, he was chosen to serve as an Associate Justice on the
court of appeals for the Yavapai-Apache Nation.
Judge Donahoe served two three-year terms on the City of
Scottsdale Board of Adjustment from 2015 to 2021 and then a
third three-year term on the board from 2022 to 2025. During
the last year of his second term and his third term, Judge
Donahoe served as chairperson of the Scottsdale Board of
Adjustment.
Judge Donahoe was elected to the board of trustees of the
McCormick Ranch Property Owners’ Association and was co-chair of the Architectural Control
Committee through 2023, and then as a member from 2023 to 2025.
EXHIBIT 18
EXHIBIT 19
EXHIBIT 20
EXHIBIT 21
1
Tempe City Council
Harry E. Mitchell Government Center
Tempe City Hall – City Council Chambers
31 East Fifth Street, Tempe, Arizona
Virtual meeting option also available
Thursday, September 18, 2025 – 6:00 PM
REGULAR COUNCIL MEETING
LEGAL ACTION SUMMARY
MEETING VIDEO
1.
CALL TO ORDER
MEETING BEGAN AT 6:04 P.M.
2.
MOMENT OF SILENCE
3.
PLEDGE OF ALLEGIANCE
4.
MEETING MINUTES – Councilmember Amberg
4A.
Approval of City Council Meeting Minutes
PASS
Motion to Approve Item 4A1 made by Councilmember Amberg and seconded by
Councilmember Keating
Aye: 6; Nay: 0; Abstain: 0; Absent: 1; Recused: 0;
For: Mayor Woods, Vice Mayor Garlid, Councilmember Amberg, Councilmember
Chin, Councilmember Hodge, Councilmember Keating
Absent: Councilmember Adams
4A1.
City Council Work Study Session – April 24, 2025
APPROVED
EXHIBIT 22
Regular City Council Meeting Legal Action Summary
Thursday, September 18, 2025
16
ADOPTED
7C7.
Adopt a resolution authorizing the Mayor to execute an
Agreement between the City of Tempe and the Salt River
Project Agricultural Improvement and Power District regarding
Project No. 6009741 – Bike Lanes/Pedestrian Improvements-
Scottsdale Road from Curry Road to Continental Drive.
(Resolution No. R2025.118)
Fiscal Impact:
No fiscal impact.
ADOPTED
8.
NON-CONSENT AGENDA
8A.
Miscellaneous Items/Bids/Contracts/Resolutions
8A1.
QUASI-JUDICIAL ITEM / PUBLIC HEARING ITEM Hold a
public hearing for an Appeal of the Development Review
Commission's decision to approve a Use Permit to allow a
detached two-story accessory dwelling unit (ADU), for ADU
BUILD - HARVEY RESIDENCE (PL250081), located at 36
East Cairo Drive. The appellant is Dawn Sinclair. The original
applicant is 3C Contracting, LLC.
Fiscal Impact:
None
EIGHT (8) INDIVIDUALS SPOKE DURING THE PUBLIC HEARING ON ITEM 8A1.
AT 8:00 P.M., COUNCILMEMBER HODGE MOVED, SECONDED BY VICE MAYOR
GARLID, TO RECESS THE REGULAR COUNCIL MEETING TO ENTER INTO AN
EXECUTIVE SESSION FOR THE PURPOSE OF OBTAINING LEGAL ADVICE
FROM THE CITY ATTORNEY ON ITEM 8A1, PURSUANT TO ARIZONA REVISED
STATUTES
§
38-431.03(A)(3).
THE
MOTION
PASSED
7–0,
WITH
COUNCILMEMBER ADAMS VOTING VIRTUALLY.
THE REGULAR COUNCIL MEETING RECONVENED AT 8:17 P.M., WITH THE
MAYOR AND ALL COUNCILMEMBERS PRESENT (COUNCILMEMBER ADAMS
WAS ATTENDING THE MEETING VIRTUALLY).
THE CITY COUNCIL’S DELIBERATION FOCUSED ON THE LEGAL QUESTION OF
WHETHER TEMPE’S ZONING AND DEVELOPMENT CODE (ZDC) REQUIREMENT
FOR A USE PERMIT FOR A SECOND-STORY ADDITION IS CONSISTENT WITH
ARIZONA REVISED STATUTES (A.R.S.) § 9-461.18. THE DISCUSSION
HIGHLIGHTED THAT STATE LAW ESTABLISHES ACCESSORY DWELLING
UNITS (ADUS) AS A “PERMITTED USE”, WHICH PROHIBITS THE CITY FROM
EXHIBIT 23
Regular City Council Meeting Legal Action Summary
Thursday, September 18, 2025
17
REQUIRING A USE PERMIT FOR THE ADU ITSELF. THE PRIMARY POINT OF
INQUIRY BECAME WHETHER THE CITY RETAINED THE AUTHORITY TO
REQUIRE A USE PERMIT SPECIFICALLY FOR THE “SECOND-STORY” ASPECT
OF AN ADU, SEPARATE FROM THE ADU AS A USE. TO ENSURE THE
COUNCIL’S FINAL DECISION WOULD BE IN FULL COMPLIANCE WITH STATE
LAW, MAYOR WOODS EXPRESSED THE NEED FOR A NEW, DEFINITIVE, AND
FORMAL OPINION FROM THE ZONING ADMINISTRATOR ON THIS SPECIFIC
LEGAL QUESTION. THE ZONING ADMINISTRATOR IS EMPOWERED BY STATE
LAW AND CITY CODE TO INTERPRET THE ZDC.
FAIL
Motion to Deny the Appeal, which upholds the Development Review Commission’s
(DRC) decision and approves the Use Permit, allowing the project to move forward,
made by Councilmember Amberg and seconded by Councilmember Keating.
Aye: 2; Nay: 5; Abstain: 0; Absent: 0; Recused: 0;
For: Councilmember Amberg, Councilmember Keating
Against: Mayor Woods, Vice Mayor Garlid, Councilmember Adams, Councilmember
Chin, Councilmember Hodge
SUPERSEDED
Motion to Approve the Appeal, which overturns the DRC’s decision and denies the
Use Permit, made by Vice Mayor Garlid and seconded by Councilmember Chin.
BEFORE A VOTE COULD BE TAKEN ON THE MOTION TO APPROVE THE
APPEAL, A SUPERSEDING MOTION WAS MADE BY COUNCILMEMBER
KEATING AND SECONDED BY COUNCILMEMBER ADAMS TO CONTINUE THE
PUBLIC HEARING. PER PARLIAMENTARY PROCEDURE, THIS MOTION TOOK
PRECEDENCE OVER THE MAIN MOTION.
PASS
Motion to Continue the Appeal and formally direct the Zoning Administrator to conduct
a full evaluation and render an opinion on the City of Tempe’s legal authority to require
a Use Permit for a second-story ADU under the new State Law (A.R.S. § 9-461.18),
made by Councilmember Keating and seconded by Councilmember Adams.
The Council will resume its hearing on the Appeal after the Zoning
Administrator’s opinion has been issued and any subsequent Appeal
proceedings before the Board of Adjustment have been fully resolved. The
Community Development Department will coordinate with the appellant on
scheduling the future hearing date.
Aye: 7; Nay: 0; Abstain: 0; Absent: 0; Recused: 0;
For: Mayor Woods, Vice Mayor Garlid, Councilmember Adams, Councilmember
Amberg, Councilmember Chin, Councilmember Hodge, Councilmember Keating
EXHIBIT 24
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
Board Member Raun Keagy
Ryan Levesque, Deputy Director Comm Dev
Board Member Mary Foy
Clarence Matherson Jr , Deputy City Attorney
Board Member Sean McCarley
Michelle Dahlke, Comm Dev Principal Planner
Board Member Katie Cross
Robert Mansolillo, Senior Planner
Board Member Lily Drosos
Jennifer Daniels, Administrative Assistant
Board Member Brett Siegal
Jason Wolf, Media
Eric Anderson, City Attorney
Absent: Board Member Somishka
1)
CALL TO ORDER: Hearing convened at 6:01 p.m. and was called to order by Chair Morrow.
2)
CONSIDERATION OF MEETING MINUTES:
2A) Board of Adjustment – 5/28/25 Study Session
2B) Board of Adjustment – 5/28/25 Regular Meeting
Motion by Board Member Foy to approve Meeting Minutes from Study Session and Regular Meeting May
28, 2025; second by Board Member Keagy.
Ayes: Chair Morrow, Board Members Siegal, Foy, Keagy and McCarley
Nays: None
Abstain: Board Members Drosos and Cross
Absent: Board Member Somishka
Vote: Motion passes 5-0
5) ADMINISTRATIVE DECISION APPEAL:
5A) Request for an appeal of 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), as a result of statutory requirements. The appellant is Dawn
Sinclair. (PL250217)
Minutes of the
Board of Adjustment
REGULAR MEETING
July 23, 2025
EXHIBIT 25
APPLICANT PRESENTATION:
Ms. Dawn Sinclair gave a presentation. Ms. Sinclair stated that she does not see any conflict with Chair Morrow or
Board Member Siegal due to them working on the same legal cases over the years. This case is actually an appeal
of three separate decisions. The Zoning Administrator made decisions to prevent my part of the appeal, as to the Use
Permit for height from going to City Council. He also decided the City is no longer going to require a Use Permit for
ADU’s. The Zoning Administrator also made a decision that the City is no longer going to use the same standards
that it previously used that are stated in the Zoning Code. State law and the Zoning Code say that the Zoning
Administrator is limited to administrative tasks. The Arizona Supreme Court states it’s administrative if it’s temporary,
has a limited application and just pursues a plan that the legislative body has already set in place. It’s legislative if it’s
permanent, has general application and has to do with a new policy or plan.
Chair Morrow asked Ms. Sinclair, if the Arizona Court of Appeals had struck down Tempe’s regulation of ADU’s,
maybe as part of the Cario case, could the Zoning Administrator then issue a clarification saying, We had this court of
appeals decision, the Council as a legislative body has said this is the code but the judicial body has said we can not
enforce that code because it has been stuck down. What is the Zoning Administrator, as an administrative function,
supposed to do? Can he say we are not going to require a Use Permit because the courts said they can’t. Even
though City Council said we are supposed to. Does that still make him administrative function or a legislative
function? Ms. Sinclair stated that the Zoning Administrator is stuck with being an administrator. The Supreme Court
states you only have so much power. The appropriate response would be for the Zoning Administrator to go to City
Council and say we have a problem, not by making the law himself.
Chair Morrow stated he suspects that the City’s argument is going to be that the change was actually the legislature’s
statutory change from 2024. That is now the change the City must interpret and deal with. The due process right to
be heard was at the legislature in May 2024 when they passed the casitas bill, which is what caused all of this. Ms.
Sinclair stated that sadly the legislature did cause all of this but the change we are talking about is to the City of
Tempe’s Zoning and Development Code. It is the City’s decision on how to implement that mandate from legislature.
Board Member Foy asked Ms. Sinclair to please cite the Zoning Code that states and/or shows that it is still the
existing code prevision that the owner must get a Use Permit. Ms. Sinclair stated Zoning Code Section 3-402
governs accessory dwelling units. It requires a Use Permit for certain building heights. The building heights that are
still in the code refer to Section 3-401. Board Member Foy asked Ms. Sinclair, you said retroactivity, but the statute
was state law at the time the permit was approved. There is also something in the code that says state law trumps
any Zoning Code at the time permit was issued. How is it being applied retroactively? Are you talking specifically
about the fact that he is denying your appeal moving on the City Council? Or the decision he made? Ms. Sinclair
stated yes. By that I mean the Zoning Administrator knows that this cannot be applied retroactively. His letter stated
from this point forward, which would be June 6th. But then he applied it to my appeal which was filed before June 6th.
Board Member Foy stated that code is clear and states, to the extent any prevision in this section conflicts with ARS
941.18 the state law should control. That is a code in Section 3-402 subsection A1. Wouldn’t that just be the law?
That is not retroactively applying it. That is the law at the time. Ms. Sinclair stated, yes and no. The law says City go
forth and amend your code. Board Member Foy asked, so you are saying at this point they have not amended? Ms.
Sinclair stated that her understanding is that they amended the code in response to the legislature’s deadline. It may
have been incorrect but that was for the City Council to fix. Board Member Foy stated, I want to focus on the
appellant issue. You are saying the Zoning Administrator does not have the power and is not given the power
anywhere in the code to dismiss that, it has to go? Is that correct? Ms. Sinclair stated that is correct.
Chair Morrow asked if the board agrees there is no requirement for an ADU Use Permit, but we say he does not have
the authority to dismiss your appeal and City Council must dismiss your appeal. You end up with the same result. I
agree process is important. Ms. Sinclair stated that what you are suggesting that this board be results orientated
rather than law orientated.
Ms. Sinclair stated that the City has no procedure for getting materials to the Board from applicants. I was told there
is a 5 pm deadline day before for providing material. I learned when I tried to get the response to the Staff Report to
you I was told that deadline only concerns power points. They made an exception to their general rule of not
providing materials to the Board when they provided you with my brief. I sent in the response to the Staff Report
EXHIBIT 26
yesterday at 9 am and was told staff were not going to give it to the Board. That is why it did not show up until today.
It appears there is a hole in the procedures. I suggest the City have a procedure to get the applicants’ materials to
the Board, same as the staff.
STAFF PRESENTATION:
Mr. Robert Mansolillo, Community Development Senior Planner, gave a staff presentation. Mr. Mansolillo gave a brief
history of the ADU Harvey Residence PL250081 case. Mr. Ryan Levesque, Community Development Deputy
Director, gave a presentation explaining the Zoning Administrator’s duties and powers. Mr. Levesque explained the
differences in accessory buildings (e.g. freestanding garages, large sheds, workshops, etc.) and accessory dwelling
units (ADUs) (e.g. may be rented or leased indecently from the main residence). Mr. Levesque explained the current
Zoning and Development Code ADU Regulations and Current ZDC Accessory Building Regulations. In May 2024
Arizona mandated by right development of an ADU allowing for at least one attached and one detached accessory
dwelling unit as a permitted use. Cities over 75,000 in population had to update zoning and development codes by
January 1, 2025. Mr. Mansolillo discussed the options for approving or denying the appeal.
Board Member Foy asked Mr. Levesque what gives him the power and/or authority to dismiss the appeal, whether it
is valid or not at this point and not move on? Mr. Levesque stated that staff had discussed issuing a Zoning
Administrator’s Opinion regarding the process since the case on College Avenue ADU. At that time we were affording
the applicant to appeal our determination. The applicant decided to amend and modify their plans and not proceed
with any additional public hearing processes or appeal period. When this project came in front of us and not wanting
to go along with the same process where we had conflicts with the hearing date and with the items that were
presented from City Council and residents, we wanted to help clarify these provisions so that it didn’t become a
precedence where we were making actions on regulations that were against the state law provisions. We thought it
was appropriate to make a change in the procedural direction and identify this ZA opinion to Ms. Dawn Sinclair so we
could proceed with the appropriate appeal process, which was just with the 2nd story Use Permit appeal. In my
authority at Zoning Administrator, I have the ability to determine regulations and procedures that are appropriate to
the outcome of this decision and identify where we had a clear conflict of the code.
Board Member McCarley asked the City Attorney; do you agree with the Zoning Administrator’s opinion that this can
be handled through an opinion rather than through City Council? Mr. Eric Anderson, City Attonery stated, yes, we do.
State statute sets out the procedures of the Zoning Administrator’s authority to enforce the Zoning Code. I disagree
with the appellants’ statement that the City Council is the proper place for this to be determined. It is an interpretation
of the code as set forth. There is a process where the Zoning Administrator reviews all the applications and
determines if they are complete and who they should be presented to. The Development Review Commission under
Tempe code has the authority to decide the Use Permit as the decision-making body and then there is a City Council
appeal. All of that is vested with the Zoning Administrator. The original applicant’s Use Permit for the accessory unit
height should not have gone through the process. The other issue with the 2nd story will advance to the City Council.
Board Member Keagy stated, when I read Section 6-802 it states that any person, group or entity aggrieved by a
decision under this code may be parity to an appeal hearing as provided in this section. What I am hearing is that the
appeal was made but staff has the ability to determine whether or not the appeal was a valid appeal. And if staff
determined that, that is why it is not moving forward to City Council. Mr. Anderson stated that the aggrieved party is a
question that should be considered by City Council. There is nothing to be aggrieved over because there is no
requirement for a Use Permit process. There is no issue to be decided by the Council.
Board Member Siegal asked Mr. Levesque, as it is currently written the ZDC requires a Use Permit for ADU’s above
15 feet, correct? Mr. Levesque stated yes. Board Member Siegal stated, as it currently stands anyone looking to build
an ADU would see that as a requirement, in order to build one correct? Mr. Levesque stated, yes, they would. Our
staff is now fully informed on this regulation change conflict that we will inform applicants who are seeking requests to
build an ADU. Zoning Administrators interpretations will be available to the public once a decision is made by the
Board the Adjustment on our public website.
Mr. Anderson stated he wanted to clarify the process. The Zoning Administrator has to follow a process when a
applicant comes in with a development application; the Zoning Administrator must tell the applicant what is required
of them. Board Member Siegal asked, to clarify that statement, state law that we are dealing with went into effect on
EXHIBIT 27
January 1, 2025, and into May Use Permits were required for ADU’s? Mr. Anderson stated that state law went into
effect earlier than that. The state law gave the cities a period of time to adopt the regulations which was January 1,
2025. Board Member Siegal stated that his concern was even though it conflicted with state law for 3-6 months it
wasn’t corrected until staff caught the error. Mr. Anderson stated that the processes staff goes through on a daily
basis with applicants coming in and questions are raised. Board Member Siegal asked if there was a way of knowing
how many people were informed that their ADU’s must meet the 15-foot requirement, from the period that the statue
took effect? Mr. Levesque stated that we have a building permit process where they have to get official building
permits to commence construction. We can find out how many applications have gone through that are built below
the 15-foot height.
Board Member McCarley asked, so there have only been two Use Permit cases that have come in since November
2024? Mr. Levesque stated there is now a 3rd one that just came in. Board Member McCarley asked, going back are
they held to the same standard? Will they be paid back the application fees for going through the process for the Use
Permit? I know that it can be a lengthy process. Mr. Levesque stated that the Harvey Residence does not have a
final outcome yet. The 1st one, College Ave was not given an extra fee for the 2nd Use Permit. The primary concern
was the idea of the ADU being built on top of the garage. The applicant made a decision to withdraw their application
for a 2-story structure. Board Member McCarley asked now that they are seeking a building permit for the process
the height will be set through the building permit process? Mr. Levesque stated, correct.
PUBLIC COMMENT:
None
APPLICANT RESPONSE:
Ms. Dawn Sinclair responded to staff’s comments. The issue is not whether it is right or wrong, the issue is whose job
it is to fix a problem. From my perspective the Zoning Administrator actions strayed into someone else’s lane. The
Zoning Administrator should have taken the problem to City Council. The City Council gets to fix that problem and
change the law. That is their job.
COMMISSION DISCUSSION:
Chair Morrow stated there are two opinions from the Zoning Administrator. I think the 1st one is correct. I think he had
the authority to interpret the code. He had to interpret it based on the 2024 statute. Under the statute there are no
more Use Permits for ADU’s. Because this is a 2024 statute, we do not have a retroactivity problem and there is no
due process problem because this was a statute with the legislature. The 2nd issue is the Zoning Administrator had
the authority to interpret the code regarding appeals. Ms. Sinclair was aggrieved by the issuance of the Use Permit.
The City rescinded the Use Permit therefore she was no longer aggrieved. In the statement the Zoning Code will be
amended, we don’t know what the City Council is going to do. Regarding the allowance of the appeal, you did not
allow the appeal, it is just going to go forward. The language is a little loose but ultimately correct and I am
comfortable voting to uphold them.
Board Member Foy stated she agreed with Chair Morrow and is troubled by some of the language that was included
in the letters. You should be more careful with the use of language it causes problems when people misinterpret
things. I agree that the 1st opinion was correctly decided and as for the appeal, it is no longer and interpreting that
from the authority given to the Zoning Administrator, he was allowed to dismiss that.
Board Member Keagy stated, we are looking at duties of an individual that are afforded to them by the ordinance, and
we read what the Zoning Administrator has the ability to do. Some is clear and some not so clear. The section I read
about any aggrieved party can appeal a decision made by the Zoning Administrator is a strong statement. It does not
seem to say “unless” or “but in this case”. When I asked that question to the City Attorney I was satisfied with his
response that the Zoning Administrator does have the ability to look at an appeal and determine the right course of
action for the appeal based on the information provided to him. I am in agreement with Chair Morrow and Board
Member Foy.
Board Member Siegal stated, I think the Zoning Administrator’s decision to retroactively clarify the decision to avoid
the appeal, I think is improper. I think it was a decision that was made after the fact and was retracted or clarified as
EXHIBIT 28
the language they used. I don’t think the fact the process being taken is to wait and see what issues come up and
then go to City Council to correct the Zoning Code. Clearly people are being aggrieved by it and undergo additional
procedures that would not be a requirement. We are running afoul of the requirement, and it is not being aggressed
like it should be. I will be voting that the Zoning Administrator lacked the authority to block the appeal.
Chair Morrow stated we should take it as 2 votes. The 1st vote will be on the interpretation of the ADU requirement
and the 2nd being on the dismissal of the appeal from the DRC.
Motion by Board Member McCarley to deny the appeal and reaffirm the Zoning Administrator’s 1st opinion on
ADU regulations ; second by Board Member Foy.
Ayes: Chair Morrow, Board Members Drosos, Cross, Foy, Keagy and McCarley
Nays: Board Member Siegal
Abstain: None
Absent: Board Member Somishka
Vote: Motion passes 6-1
Motion by Chair Morrow to deny the appeal and approve the Zoning Administrators opinion involving the Harvey
Residence ADU; second by Board Member Foy.
Ayes: Chair Morrow, Board Members Drosos, Cross, Foy, Keagy and McCarley
Nays: Board Member Siegal
Abstain: None
Absent: Board Member Somishka
Vote: Motion passes 6-1
6)
CHAIR/STAFF UPDATE(S) AND ANNOUNCEMENT(S):
Chair Morrow stated that in the next meeting the Board will elect a Vice Chair. Ms. Sinclair brought up the issue
of deadlines for appellants to provide materials. Can we have a discussion about that at the next Study Session?
Ms. Dahlke had no staff announcements.
7) ADJOURNMENT:
Motion by Board Member Foy to adjourn meeting; second by Chair Morrow. Motion passed on 7-0 vote.
Ayes: Chair Morrow, Board Members Drosos, Cross, Foy, Keagy, Siegal and McCarley
Nays: None
Abstain: None
Absent: Board Member Somishka
Vote: Motion passes 7-0
Hearing adjourned at 7:28PM
Prepared by: Jennifer Daniels, Administrative Assistant II
Reviewed by: Michelle Dahlke , Principal Planner
EXHIBIT 29
STAFF REPORT
ZONING ADMINISTRATOR’S OPINION APPEAL (PL25017)
COMMENTS
On May 13, 2025, the Development Review Commission voted 6-0 to approve, on the consent agenda, two (2) Use Permits
for the Harvey Residence ADU project (PL250081). That 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 discussions or public testimony was heard. Prior to the hearing, staff received no comments in
opposition to the requests. On May 22, 2024, 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.
On June 6, 2025, staff issued a Zoning Administrator’s Opinion 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. On June 17, 2025, Dawn Sinclair filed another 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 contests that no longer requiring a Use Permit for ADU height is legally incorrect.
The original appeal of the DRC decision for approval of the Harvey Residence – ADU Build, is currently hold, pending the
outcome of this appeal to the Board of Adjustment.
The appellant is seeking to appeal a Zoning Administrator’s Opinion as it relates to the Harvey Residence ADU (PL250081),
located at 36 East Cairo Drive. On June 6, 2025, the City of Tempe Zoning Administrator issued an opinion 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) and therefore the prior decision made by the DRC for accessory buildings was no longer necessary and
could not be appealed.
The ZDC provides that “ADUs are subject to the same height regulations that apply to the zoning district with a single-family
dwelling on the same lot.” 3-402(C)(6). ZDC 3-402(C)(6) incorporates ZDC 3-401 by reference which requires that “[t]he
maximum allowed building height shall be fifteen (15) feet. Additional height may be permitted up to the maximum height
allowed in the district, subject to approval of a Use Permit.” The ZDC also requires that “[t]o the extent any provision in this
section conflicts with A.R.S. §9-461.18, the state law shall control.” § 3-402(A)(1). A.R.S. § 9-461.18 allows for “[a]t least one
attached and one detached accessory dwelling unit as a permitted use” without a Use Permit.
Specific citations where State Law regulations mandate municipalities:
A.R.S. § 9-461.18 B. A municipality may not do any of the following: ….
“5. Set restrictions for accessory dwelling units that are more restrictive than those for single-family dwellings within the same
zoning area with regard to height, setbacks, lot size or coverage or building frontage.” The height limitations that trigger the
need for a Use Permit and certain setback standards for accessory buildings are more restrictive than what is allowed for the
single-family dwelling. Therefore, the Community Development Department no longer regulates detached ADUs under the
regulations for accessory buildings (Tempe ZDC Sec. 3-401(C)(3)).
And A.R.S. 9-461.18 H. 5.
“5. "Permitted use" means the ability for a development to be approved without requiring a public hearing, variance, conditional
use permit, special permit or special exception, other than a discretionary zoning action to determination that a site plan
conforms with applicable zoning regulations.” State requires municipalities to treat ADUs as a permitted use, which means
without the need for a public hearing or use permit. It’s true, the applicant could have designed the dwelling so the height was
not two-stories and had a lower building height as a result. But the proposed height of the ADU is in direct conflict with allowing
EXHIBIT 30
the same height granted to the single-family dwelling (which is 30 feet) as a “permitted use”. This is in direct conflict with State
Law.
STAFF EVALUATION AND RECOMMENDATION
In their Letter of Explanation, the appellant raises concerns regarding authority of the Zoning Administrator, due process, and
legality of how the City will regulate an ADU.
The appellant contests that the Zoning Administrator's decision to prevent an appeal of the Development Review Commission's
approval of a use permit as to height to the City Council is invalid because the Zoning Administrator lacks the authority to
essentially dismiss an appeal. The appeal of the Harvey Residence ADU (PL250081) was based on two Use Permits. The first
being the allowance of a two-story ADU and the second being an increase in height of an accessory building above 15’. The
appellant was informed that the appeal will still proceed to City Council, but only for the Use Permit for a second-story addition,
not the Use Permit to increase of height. While the appeal was decreased from two to one due to the Zoning Administrator’s
Opinion, which was not a complete dismissal of the appeal but a clarification of the code the appeal of the Development Review
Commission’s decision will be scheduled for a future City Council meeting.
The appellant states that the Zoning Administrator's decisions of the City’s intent to no longer require Use Permits for the height
of an ADU, and that the City intends to change the standards that it uses to regulate an ADU, cannot be implemented absent
an amendment to the Code and does not comport with due process. The appellant also states that changing the standards
used to regulate ADUs would be invalid because those determinations constitute policy- and lawmaking for which the Zoning
Administrator lacks authority. The Zoning Administrator’s Opinion was a clarification of the existing adopted code, not a change
to process or standards. The ADU Ordinance had been in effect six months at the time of the DRC hearing; amendments to
the Tempe Zoning and Development Code may be needed to clarify the intent of the Arizona Revised Statutes for ADUs and
to align Tempe’s regulations with the requirements set forth by the State of Arizona. Any code text changes will comply with
regulation outlined in Section 6-304 - Zoning Map Amendments (including Overlay Districts) and Code Text Amendments, of
the Tempe Zoning and Development Code. This includes bringing these code text amendments to the appropriate decision-
making body, including the Development Review Commission and City Council.
The appellant argues that the Zoning Administrator's decision to no longer require use permits for the height of ADUs and City
changes to the standards that it uses to regulate ADUs can only be applied prospectively to future cases, not retroactively to
Harvey Residence ADU (PL250081). Changes to the Tempe Zoning and Development Code cannot be applied retroactively.
However, the appeal of two Use Permits pertaining to Harvey Residence ADU (PL250081) had not yet been scheduled for a
City Council meeting when the Zoning Administrator's Opinion was issued. If the Board were to allow the appeal of regulating
height of an ADU over 15 feet then the appeal would proceed to City Council. The appeal process is being followed pursuant
to the Zoning and Development Code hierarchy of decisions. Any future required changes to the Zoning and Development
Code would comply with the process for code text amendments. The nuance in this circumstance is that upon further evaluation
of a new code to the conformance with a new state law, where there are discrepancies in the city zoning code with the state
statues, the state law supersedes the municipal code. The use permit for a detached ADU to be taller than 15 feet, when the
zoning district allows 30 feet would be found in violation of state law and would not be valid.
The appellant states that the Zoning Administrator's decisions that the City will no longer require use permits for the height of
ADUs and that the City will change the standards that it uses to regulate ADUs are legally incorrect. No explanation was given
as to how they are legally incorrect. As the statutory regulations continue to evolve, the municipal regulations are required to
be updated for conformance to state law. In relation to the allowable building height of an ADU, the Zoning and Development
Code may require further amendments to comply with Arizona State Law. Arizona Revised Statutes state that a municipality
cannot set restrictions for an ADU that are more restrictive than those for single-family dwellings within the same zoning area
with regard to height. Meaning that an ADU should be allowed a height that is allowed in the zoning district, 30 feet in most
single-family residential zones, without the requirement for a Use Permit. The Tempe Zoning and Development Code currently
requires a Use Permit for an ADU over 15 feet in height. Future amendments to the Tempe Zoning and Development Code
will be made to clarify the intent of the Arizona Revised Statutes for ADUs and align Tempe’s regulations with the requirements
set forth by the State of Arizona.
EXHIBIT 31
The Board of Adjustment’s role with respect to appeals of a Zoning Administrator’s Opinion is to determine whether the appeal
is valid based both on information that was provided to the Zoning Administrator as well as new information brought to bear as
part of the appeals process. The Board may:
•
Approve the appeal with a finding that the Zoning Administrator’s Opinion was incorrectly determined;
•
Deny the appeal and re-affirm the Zoning Administrator’s Opinion; or
•
Continue the appeal if more information is required to make a determination on the request.
RESEARCH
The City conducted research with reviewing other municipalities regulations for and development standards for single-family
zoning, including regulations related to accessory building and ADUs. While the research indicated that most Arizona Cities
have similar regulations but differences in the exact height requirements for single-family. No other city in Arizona that was
researched has any special requirement or additional height restrictions on an ADU. Tempe was the only city, until the Zoning
Administrator’s Opinion was issued, that was different. Currently, Tempe is the only City that has special regulations for second
story additions or rebuilds, which require a use permit. All other cities allow additional stories based on the height allowed in
the district. Tempe only requires the use permit when the original home was built as a single-story home. If a new subdivision
or vacant lot, the new home can be built as a two-story dwelling without the need for the use permit requirement. A regulation
unique to Tempe since 1987.
HISTORY & FACTS
May 21, 2024
Arizona State Legislature adopts state statues § 9-461.18 requiring municipalities to update the
zoning codes to allow Accessory Dwelling Units and establishes standards that supersede local
jurisdictional authority.
November 21, 2024
City Council adopts O2024.51 an Ordinance to amend the Zoning and Development Code for Part
3 relating to Accessory Dwelling Units (ADU).
March 11, 2025
Development Review Commission approves a Use Permit to allow a second-story addition and a
Use Permit to increase the allowed height for an accessory building from 15 feet to 24 feet in the R1-
6 zoning district for COLLEGE AVE ADU, located at 2021 South College Avenue. The applicant is
Hickory Wind Construction, LLC. (PL240442)
March 18, 2025
An application is accepted for a Use Permit to allow a two-story ADU and a Use Permit to increase
the allowable height of an accessory building from 15’ to 18’-4” for ADU BUILD – HARVEY
RESIDENCE, located at 36 East Cairo Drive. (PL250081)
May 13, 2025
Development Review Commission approved PL250081, a request for a Use Permit to allow a two-
story ADU and a Use Permit to increase the allowable height of an accessory building from 15’ to
18’-4”.
May 22, 2024
Dawn Sinclair submitted an Appeal of the Development Review Commission’s approval of
PL250081.
June 6, 2025
Staff issued a Zoning Administrator’s Opinion 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), based on state laws regarding municipal regulatory limits on ADUs.
June 17, 2025
Dawn Sinclair submitted an Appeal of the Zoning Administrator’s Opinion (PL250217).
July 23, 2025
This item is scheduled to be heard by the City of Tempe Board of Adjustment.
EXHIBIT 32
EXHIBIT 33
EXHIBIT 34
City of Tempe
P. O. Box 5002
31 East Fifth Street
Tempe, AZ 85280
www.tempe.gov
Community Development Department
Planning Division
June 6, 2025
RE:
ADU REGULATIONS VS. ACCESSORY BUILDINGS
Zoning Administrator’s Opinion
To Whom It May Concern:
This letter is intended to address previously reviewed or current proposed requests for Accessory
Dwelling Units (ADUs) requiring review by the City of Tempe Community Development Department. After
further review and consideration of evaluating Tempe’s ADU regulations, the Zoning Administrator has
determined that a Use Permit for height above the maximum height allowed for detached accessory
buildings (15’) is NOT required. Additionally, the setback provisions for accessory buildings should not
apply to structures used a detached ADU. A brief explanation will follow.
The Tempe Zoning and Development Code (“ZDC”) provides that “ADUs are subject to the same height
regulations that apply to the zoning district with a single-family dwelling on the same lot.” § 3-402(C)(6).
ZDC § 3-402(C)(6) incorporates ZDC § 3-420 by reference which requires that “[a] use permit is required
for any single story, single-family residence to add, expand, or rebuild for a second story.” The ZDC also
requires that “[t]o the extent any provision in this section conflicts with A.R.S. 9-461.18, the state law shall
control.” § 3-402(A)(1). A.R.S. § 9-461.18 allows for “[a]t least one attached and one detached accessory
dwelling unit as a permitted use” without a Use Permit. Additionally, A.R.S. § 9-461.18 “B. A municipality
may not do any of the following: 5. Set restrictions for accessory dwelling units that are more restrictive
than those for single-family dwellings within the same zoning area with regard to height, setbacks, lot size
or coverage or building frontage.” The height limitations that trigger the need for a use permit and certain
setback standards for accessory buildings are more restrictive than what is allowed for the single-family
dwelling. Therefore, and from this point forward, the Community Development Department will no longer
regulate detached ADUs under the regulations for accessory buildings (Tempe ZDC Sec. 3-401).
Future amendments to the Tempe Zoning and Development Code will be made to incorporate this Zoning
Administrator’s Opinion, clarifying the intent of the Arizona Revised Statutes for ADUs and align Tempe’s
regulations with the requirements set forth by the State of Arizona.
The Zoning Administrator has determined that you are able to construct a single-story ADU on your
parcel without a Use Permit. If you elect to construct a second-story ADU instead, the Zoning
Administrator has determined that the requirement for a Use Permit under ZDC § 3-420 in this instance is
consistent with A.R.S. § 9-461.18.
***
Your Appeal Rights
This determination by the Zoning Administrator may be appealed to the Tempe Board of Adjustment. If
you choose to appeal, you must file an appeal with both the Zoning Administrator and the Board of
Adjustment within a reasonable time and specify the grounds of the appeal. The ZDC designates that an
appeal filed within 14 days of this decision or direction provided from staff is presumptively within a
reasonable time. Please see Section 6-803 of the ZDC (Appeal Criteria) for details. After receipt of an
EXHIBIT 35
appeal application, a public hearing for the appeal will be scheduled at the next regular meeting of the
Board of Adjustment.
Appeals must be filed with the Community Development Department and an application filing using the
Citizen Access Portal: https://epermits.tempe.gov/CitizenAccess/Default.aspx
Should you need further assistance or clarification on this matter, please contact staff at (480) 350-4311.
Sincerely,
Ryan Levesque, Zoning Administrator
Deputy Community Development Director – Planning
Community Development Department
EXHIBIT 36
EXHIBIT 37
EXHIBIT 38
STAFF REPORT
ADU BUILD - HARVEY RESIDENCE (PL250081)
Project Address
36 East Cairo Drive
Property Owner
Michael Harvey and Mary Ann Harvey
Applicant
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)
Building Height
18’-4” (15’ maximum allowed)
Lot Coverage
31% (45% maximum allowed)
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:
This site is located on the north side of Cairo Drive and east of Mill Avenue on Lot 29 of the Nu-Vista 1 Subdivision. The
property is zoned R1-6, Single-Family Residential, and contains an existing five-bedroom, single-family home. The property
is surrounded in all directions by single-family residential uses. Recent aerial photography showed a storage shed in the rear
yard. That has been removed to construct a two-story detached accessory building to be used as an accessory dwelling unit
(ADU) with ground floor kitchen, living room, bedroom, and bathroom and loft storage space on the second floor. The two (2)
loft storage spaces are 136 square feet each and are not connected. There is no permanent access to the loft spaces from
the ground floor, a ladder will be required. The proposed height of the accessory building is 18’- 4”, above the allowed 15 feet
for an accessory building. The livable floor area of the primary residence and detached ADU are 1,625 square feet and 692
square feet, respectively, which fall within the allowable size for an ADU pursuant to Tempe Zoning and Development Code
(ZDC) Section 3-402(C). If the Use Permits for a second-story addition and height increase are approved, the proposed ADU
will comply with all other existing development standards.
Existing uses on the site include: a single-family residence.
The applicant is requesting the Development Review Commission take action on
ZUP250034
Use Permit to allow a detached two-story accessory building.
ZUP250046
Use Permit to allow an increase in the allowable height of an accessory building from 15’ to 18’-4”.
PUBLIC INPUT
To date, staff has not received any public comment.
USE PERMITS
The proposed design requires a Use Permit to allow a detached two-story accessory building and a Use Permit to increase
the allowed height for an accessory building from 15’ to 18’-4” within the R1-6, Single-Family Residential zoning district.
Section 6-308(E) Approval criteria for Use Permit (in italics):
1.
Any significant increase in vehicular or pedestrian traffic; the proposed design of the ADU is not expected to cause a
significant increase in vehicular or pedestrian traffic beyond that of a normal single-family residence.
2.
Nuisance arising from the emission of odor, dust, gas, noise, vibration, smoke, heat or glare at a level exceeding
EXHIBIT 39
that of ambient conditions; the site is remaining a single-family use and the addition of the ADU will not create a
nuisance exceeding that of ambient conditions.
3.
Contribution to the deterioration of the neighborhood or to the downgrading of property values, which is 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; the proposed design conforms to the development standards of the R1-6 zoning
district, and the increase in height and allowance of the second-story ADU are permitted upon approval of the Use
Permits. The addition of a two-story ADU will increase the size and value of the home, which will also increase
property valuation assessments. The proposed use supports the General Plan goals and objectives for
neighborhood stabilization, revitalization, affordability, and livability. The proposed addition does not conflict with city
goals and represents an investment in the property and is not expected to decrease property values.
4.
Compatibility with existing surrounding structures and uses; the majority of single-family homes adjacent to this site
are single-story. The proposed ADU is being placed in the rear of the property and is separated by a 20-foot alley to
the north. Design considerations have been included to enhance privacy for the neighbor to the east and west, as
well as across the alley by utilizing clerestory windows. The original design included larger windows on the second
story north and south sides. However, the applicant agreed to remove those due to potential privacy concerns.
5.
Adequate control of disruptive behavior both inside and outside the premises which may create a nuisance to the
surrounding area or general public; there will be no obstruction of views or impediments to privacy with the addition
of a second story structure. The use remains a single-family residence with activities taking place within the new
livable space. Disruptive behavior is not anticipated as a result of this addition outside that of a typical single-family
use.
Section 3-420(C) Additional Use Permit approval criteria for second-story additions (in italics):
1.
The proposed second story is designed to be compatible with the architecture of the residence and compatible with
the surrounding neighborhood; the exterior finish on the ADU will be stucco and will match the existing residence
and other residences in the area. Conditions of approval are included ensuring the new building will be painted to
match the existing home.
2.
There are design considerations for privacy to adjacent properties and protection of existing solar appurtenances on
adjacent lots; the proposed building is setback 17’-3” from the property to the north (including the alley width) and
does not include windows on the north and south sides. Clerestory windows are included on the east side where the
building is setback 6’-4” from the property line to respect the privacy of the neighbors.
3.
There is sufficient parking on site or on the street frontage to accommodate guests. The addition shall be required to
meet current standards pursuant to ZDC Section 4-603, parking ratios; two (2) parking spaces are provided on-site
to meet the requirements of the existing main residence. Additional parking is not required for an ADU.
REASONS FOR APPROVAL:
Based on the information provided by the applicant, the public input received, and the above analysis staff supports approval
of the requested Use Permits. This request meets the required criteria and will conform to the conditions.
SHOULD AN AFFIRMATIVE ACTION BE TAKEN ON THIS REQUEST, THE FOLLOWING NUMBERED CONDITIONS OF
APPROVAL SHALL APPLY, BUT MAY BE AMENDED BY THE DECISION-MAKING BODY.
CONDITION(S) OF APPROVAL: (Non-standard conditions are identified in bold)
EACH NUMBERED ITEM IS A CONDITION OF APPROVAL. THE DECISION-MAKING BODY MAY MODIFY, DELETE OR ADD TO THESE
CONDITIONS.
1.
The Use Permits are valid only after a Building Permit has been obtained, the required inspections have been completed
and a Final Inspection has been passed. As part of the Building Permit process, on-site storm water retention may be
required to be verified or accomplished on this Site.
2.
The Use Permits are valid for the plans as submitted within this application. Any additions or modifications may be
submitted for review during the building plan check process.
EXHIBIT 40
3.
The new detached accessory building shall be painted to match the color of the existing home.
CODE/ORDINANCE REQUIREMENTS:
THE BULLETED ITEMS REFER TO EXISTING CODE OR ORDINANCES THAT PLANNING STAFF OBSERVES ARE PERTINENT TO THIS CASE.
THE BULLET ITEMS ARE INCLUDED TO ALERT THE DESIGN TEAM AND ASSIST IN OBTAINING A BUILDING PERMIT AND ARE NOT AN
EXHAUSTIVE LIST.
This approval for the Use Permit review did not include a comprehensive evaluation of the site for code compliance; the
scope of approval is for the Use Permit only. The property owner should be aware of all city codes and zoning ordinances
applicable to the property including maintenance and conformance with the codes. Below is a partial list of references
provided to advise the owner of pertinent code requirements; this is not an exhaustive list.
TEMPE CITY CODE: Specific requirements of the Tempe City Code are not listed but apply to any application
https://library.municode.com/az/tempe/codes/city_code
ZONING AND DEVELOPMENT CODE: Specific requirements of the Zoning and Development Code (ZDC) are not listed
as a condition of approval but apply to any application. To avoid unnecessary review time and reduce the potential for
multiple plan check submittals, become familiar with the ZDC. Access the ZDC through www.tempe.gov/zoning or purchase
from Community Development.
BUILDING & FIRE CODES: Any modifications to the buildings involving mechanical, electrical, plumbing or structural tenant
improvements that would require a building permit must obtain required permits.
ENGINEERING CODES: Any site modifications affecting utilities, retention or engineering code requirements must obtain
required permits.
USE PERMIT:
•
The Use Permit approval shall be void if the use is not commenced or if an application for a building permit has not been
submitted, whichever is applicable, within twelve (12) months after the Use Permit is granted or within the time stipulated
by the decision-making body.
•
The decision-making body, upon finding that the applicant has not taken corrective actions to resolve issues related to
the permit/approval and that a continuation of the permit/approval is not in the interest of the public health, safety and
general welfare, can revoke the permit/approval after providing written notice of its intentions to the holder of the permit.
•
Specific requirements of the Zoning and Development Code (ZDC) are not listed as a condition of approval but will
apply to any application. To avoid unnecessary review time and reduce the potential for multiple plan check submittals,
become familiar with the ZDC. Access the ZDC through http://www.tempe.gov/zoning or purchase from Development
Services.
•
Any intensification or expansion of use shall require a new Use Permit.
HISTORY & FACTS:
February 29, 1960
Nu Vista No. 1 Subdivision Lot 29, 36 East Cairo Drive residence was constructed.
December 5, 2000
BP001635 final approval to convert carport to living space and convert outdoor patio to a family
room.
May 13, 2025
Development Review Commission is scheduled to hear the requests for a Use Permit to allow a
two-story ADU and a Use Permit to increase the allowable height of an accessory building from
15’ to 18’-4”.
EXHIBIT 41
ZONING AND DEVELOPMENT CODE REFERENCE:
Section 3-401, Accessory Buildings, Uses and Structures
Section 3-402, Accessory Dwelling Units
Section 3-420, Single-Family Residential Second Story Addition or Rebuild
Section 6-308, Use Permit
EXHIBIT 42
EXHIBITS
for
ADU BUILD HARVEY RESIDENCE
(PL250081)
1.
Zoning Map
2.
Aerial Map
3.
Letter of Explanation
4.
Site Plan
5.
Floor Plans
6.
Building Elevations
7-10.
Context Photos
EXHIBIT 43
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Multi-Family Residential (R-2)
.
ADU BUILD - HARVEY RESIDENCE
PL250081
EXHIBIT 44
R1-6
Enterprise GIS and Data Analytics Group; City of Tempe
, Maxar, Microsoft
²
Aerial Map
ADU BUILD - HARVEY RESIDENCE
PL250081
EXHIBIT 45
March 10th, 2025
Re: Harvey ADU Build – Letter of Explanation PL 250081
BP 250368
To Whom It May Concern:
This letter is to identify the goals and objectives for the above stated project. The use of the
ADU will be for the homeowner’s son to reside in. There will be no addition of noise or other
disruptive behavior occurring after the construction of this ADU. There will be no business, no
additional vehicles or traffic other than what is already currently occurring at the main
residence. There are no encroachments on the zoning setbacks. The construction is intended to
have an 18’ ridge height which falls under the 30’ height limitation for this zoning and the newly
adopted ADU regulations.
This ADU construction will not be detrimental to anyone working or residing in the community.
It will not bring down the property values. In fact, it will raise the property value of the existing
property by adding livable space. The architectural structure of the build will coincide with the
surrounding structures including the main residence on the property.
Because the footprint of the build is not very large, the intention is to maximize the space usage
by creating loft storage above the ceilings of both the bathroom and the bonus room. This
addition of a second floor to the drawings has triggered the need to apply for a Use Permit and
obtain special approval. All applicable building codes will be followed, and the construction
plans have been reviewed and approved by our structural engineer. We also request a second
Use Permit to increase the allowable height from 15’ to 18’-4”.
Finally, we are aware that privacy concerns for the neighbors are of utmost importance. For this
reason, the high windows that can be looked out of from the second-floor storage area, will
either be removed or installed with privacy glass. The only other high windows that are on the
build, are not able to be looked out of because there is no second floor in that area of the build.
The only areas that have a second floor are on either end of the ADU, but the middle will be
open all the way to the underside of the roof. Those windows in question would be to let
natural light into the structure. We are open to adjusting any concerns by the design
commission in order to meet their criteria.
Please let us know if any additional information is needed.
Thank you,
Tim Linklater
Client’s Representative General Contractor
EXHIBIT 46
EXHIBIT 47
EXHIBIT 48
EXHIBIT 49
EXHIBIT 50
EXHIBIT 51
EXHIBIT 52
EXHIBIT 53
9-461.18. Accessory dwelling units; regulation; applicability;
definitions
A. A municipality shall adopt regulations that allow on any lot or
parcel where a single-family dwelling is allowed all of the following:
1. At least one attached and one detached accessory dwelling unit as
a permitted use.
2. A minimum of one additional detached accessory dwelling unit as a
permitted use on a lot or parcel that is one acre or more in size if at
least
one
accessory
dwelling
unit
on
the
lot
or
parcel
is
a
restricted-affordable dwelling unit.
3. An accessory dwelling unit that is seventy-five percent of the
gross floor area of the single-family dwelling on the same lot or parcel or
one thousand square feet, whichever is less.
B. A municipality may not do any of the following:
1. Prohibit the use or advertisement of either the single-family
dwelling or any accessory dwelling unit located on the same lot or parcel
as separately leased long-term rental housing.
2. Require a familial, marital, employment or other preexisting
relationship between the owner or occupant of a single-family dwelling and
the occupant of an accessory dwelling unit located on the same lot or parcel.
3. Require that a lot or parcel have additional parking to
accommodate an accessory dwelling unit or require payment of fees instead
of additional parking.
4. Require that an accessory dwelling unit match the exterior design,
roof pitch or finishing materials of the single-family dwelling that is
located on the same lot as the accessory dwelling unit.
5. Set restrictions for accessory dwelling units that are more
restrictive than those for single-family dwellings within the same zoning
area with regard to height, setbacks, lot size or coverage or building
frontage.
6. Set rear or side setbacks for accessory dwelling units that are
more than five feet from the property line.
7. Require improvements to public streets as a condition of allowing
an accessory dwelling unit, except as necessary to reconstruct or repair a
public street that is disturbed as a result of the construction of the
accessory dwelling unit.
8. Require a restrictive covenant concerning an accessory dwelling
unit on a lot or parcel zoned for residential use by a single-family
dwelling.
C. This section does not prohibit restrictive covenants concerning
accessory dwelling units entered into between private parties. The
municipality may not condition a permit, license or use of an accessory
dwelling unit on adopting or implementing a restrictive covenant between
private parties.
D. This section does not supersede applicable building codes, fire
codes or public health and safety regulations, except that a municipality
may not require an accessory dwelling unit to comply with a commercial
building code or contain a fire sprinkler.
E. An accessory dwelling unit may not be built on top of a current
or planned public utility easement unless the property owner receives
written consent from any utility that is currently using the public utility
easement or that may use the public utility easement in the future.
F. If a municipality fails to adopt development regulations as
required by this section on or before January 1, 2025, accessory dwelling
units shall be allowed on all lots or parcels zoned for residential use in
the municipality without limits.
EXHIBIT 54
G. This section does not apply to lots or parcels that are located
on:
1. Tribal land.
2. Land that is in the territory in the vicinity of a military airport
or ancillary military facility as defined in section 28-8461.
3. Land that is in the territory in the vicinity of a federal aviation
administration commercially licensed airport or a general aviation airport
or land that is in the territory in the vicinity of a public airport as
defined in section 28-8486 and that has a noise level of greater than
sixty-five decibels.
H. This section applies to a municipality with a population of more
than seventy-five thousand persons.
I. For the purposes of this section:
1. "Accessory dwelling unit" means a self-contained living unit that
is on the same lot or parcel as a single-family dwelling of greater square
footage than the accessory dwelling unit, that includes its own sleeping
and sanitation facilities and that may include its own kitchen facilities.
2. "Gross floor area" means the interior habitable area of a single-
family dwelling or an accessory dwelling unit.
3. "Long-term rental" means rental use in which the tenant holds a
lease of ninety days or longer or on a month-by-month basis.
4. "Municipality" means a city or town that exercises zoning powers
under this title.
5. "Permitted use" means the ability for a development to be approved
without requiring a public hearing, variance, conditional use permit,
special permit or special exception, other than a discretionary zoning
action to determine that a site plan conforms with applicable zoning
regulations.
6. "Restricted-affordable dwelling unit" means a dwelling unit that,
either through a deed restriction or a development agreement with the
municipality, is rented to households earning up to eighty percent of area
median income.
EXHIBIT 55
REVISIONS
SHEET NUMBER:
DATE:
BUILDER/BID SET:
DRAWN BY:
CLIENT REVIEW:
These drawings, designs and concepts, are the property of Chris Savage, who reserves the right of ownership, including but not limited to, common law copyright. The use of these plans for construction shall be restricted to the address stated on the plans only. These plans are
not to be copied, reproduced, changed or reused in any manner without the express written permission of Chris Savage.
Tempe, AZ 85282
36 E. Cairo Dr.
A New ADU
For the Harvey Residence
CS
Custom Residential Construction Plans
casdesign.drafting@gmail.com
602.790.0490
www.houseplansforbuilding.com
A NEW DETACHED ACCESSORY DWELLING
UNIT FOR THE HARVEY FAMILY
PROJECT DATA
OWNER:
JOB
SITE
VICINITY MAP
BUILDING SAFETY CODES
SHEET INDEX
1.0
SCOPE OF WORK
LIVABLE & NON-LIVABLE AREA:
DESIGN/DRAFTING:
* Existing 5/8" water meter shall be upgraded to 3/4".
The water service, including any backflow prevention
device, after the meter shall be a minimum 1".
REVIEWED FOR CODE COMPLIANCE
CITY OF TEMPE, ARIZONA
DEVELOPMENT SERVICE DIVISION
__________________________ _______________
Planning Division Date
_________________________________ __________________
Building Safety Division Date
_________________________________
Permit Number
JO
BP250368
11/13/2025
*AS NOTED - JO 11/13/2025
*Unit A
*UNIT A
* Deferred submittals are to be submitted to the building
official within sixty days of permit issuance - 107.3.4.1
EXHIBIT 56
REVISIONS
SHEET NUMBER:
DATE:
BUILDER/BID SET:
DRAWN BY:
CLIENT REVIEW:
These drawings, designs and concepts, are the property of Chris Savage, who reserves the right of ownership, including but not limited to, common law copyright. The use of these plans for construction shall be restricted to the address stated on the plans only. These plans are
not to be copied, reproduced, changed or reused in any manner without the express written permission of Chris Savage.
Tempe, AZ 85282
36 E. Cairo Dr.
A New ADU
For the Harvey Residence
CS
Custom Residential Construction Plans
casdesign.drafting@gmail.com
602.790.0490
www.houseplansforbuilding.com
2.0
FLOOR PLAN
GENERAL NOTES
KEY NOTES:
ADU
FENESTRATION GUIDELINES:
WALL SCHEDULE:
SCOPE OF WORK
LIVABLE & NON-LIVABLE AREA:
DIMENSIONS PLAN
1
2
CONTRACTOR NOTES
MATERIALS SPECIFIED
INSTALLATION NOTES
WINDOW/DOOR WRAP
INSULATION VALUES
WALL INSULATION
PLUMBING: WATER LINE PLAN
CITY OF TEMPE
DEVELOPMENT
SERVICES
REVIEWED FOR
CODE COMPLIANCE
*Unit A
EXHIBIT 57
REVISIONS
SHEET NUMBER:
DATE:
BUILDER/BID SET:
DRAWN BY:
CLIENT REVIEW:
These drawings, designs and concepts, are the property of Chris Savage, who reserves the right of ownership, including but not limited to, common law copyright. The use of these plans for construction shall be restricted to the address stated on the plans only. These plans are
not to be copied, reproduced, changed or reused in any manner without the express written permission of Chris Savage.
Tempe, AZ 85282
36 E. Cairo Dr.
A New ADU
For the Harvey Residence
CS
Custom Residential Construction Plans
casdesign.drafting@gmail.com
602.790.0490
www.houseplansforbuilding.com
4.1
ROOFING PLAN
CROSS SECTION
A
O'HAGIN VENT
ATTIC VENTING
ATTIC NOTES
ATTIC VENTILATION CALCS.
WEEP SCREED PLACEMENT
3
1
FIRE PROTECTION
CITY OF TEMPE
DEVELOPMENT
SERVICES
REVIEWED FOR
CODE COMPLIANCE
*Unit A
EXHIBIT 58
REVISIONS
SHEET NUMBER:
DATE:
BUILDER/BID SET:
DRAWN BY:
CLIENT REVIEW:
These drawings, designs and concepts, are the property of Chris Savage, who reserves the right of ownership, including but not limited to, common law copyright. The use of these plans for construction shall be restricted to the address stated on the plans only. These plans are
not to be copied, reproduced, changed or reused in any manner without the express written permission of Chris Savage.
Tempe, AZ 85282
36 E. Cairo Dr.
A New ADU
For the Harvey Residence
CS
Custom Residential Construction Plans
casdesign.drafting@gmail.com
602.790.0490
www.houseplansforbuilding.com
5.0
FRONT ELEVATION
RIGHT SIDE ELEVATION
REAR ELEVATION
LEFT SIDE ELEVATION
ELEVATION NOTES:
NOTE:
NOTE:
WESTERN ONE-KOTE STUCCO FINISH
NOTE:
NOTE:
CITY OF TEMPE
DEVELOPMENT
SERVICES
REVIEWED FOR
CODE COMPLIANCE
*Unit A
EXHIBIT 59
REVISIONS
SHEET NUMBER:
DATE:
BUILDER/BID SET:
DRAWN BY:
CLIENT REVIEW:
These drawings, designs and concepts, are the property of Chris Savage, who reserves the right of ownership, including but not limited to, common law copyright. The use of these plans for construction shall be restricted to the address stated on the plans only. These plans are
not to be copied, reproduced, changed or reused in any manner without the express written permission of Chris Savage.
Tempe, AZ 85282
36 E. Cairo Dr.
A New ADU
For the Harvey Residence
CS
Custom Residential Construction Plans
casdesign.drafting@gmail.com
602.790.0490
www.houseplansforbuilding.com
SITE PLAN
LIVABLE & NON-LIVABLE AREA:
10.0
JOB
SITE
VICINITY MAP
PROJECT DATA
OWNER:
DESIGN/DRAFTING:
SCOPE OF WORK
SHEET INDEX
BUILDING SAFETY CODES
CITY OF TEMPE
DEVELOPMENT
SERVICES
REVIEWED FOR
CODE COMPLIANCE
*Unit A
EXHIBIT 60