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Appeals to final discretionary decisions that require a dedication or an exaction as a condition for granting a
approval and appeals to the adoption or amendment of a zoning regulation on the grounds that the regulation creates an unconstitutional “taking” of private property in
of the Fifth Amendment to the United States Constitution (a “takings appeal”) shall be processed in accordance with this section.
A. Decisions Subject to Appeal
1. A takings appeal may be filed by a property owner as follows:
a. Where the property owner has a legally recognized property interest in the property that is subject to the
decision;
b. Where a final discretionary administrative decision has been made by the PDSD
, Zoning Examiner, or the Mayor and Council to require the dedication of property or the payment of a monetary exaction as a condition for the approval of the
application in a manner that is alleged to constitute a taking of property; or,
c. A zoning regulation has been adopted or amended and is alleged to constitute a taking of property.
2. A takings appeal may not be filed by a property owner regarding the application of fees, assessments, taxes, or any other dedication or exaction required by a legislative act that does not give discretion to the administrative agency or official to determine the nature or extent of the requirement.
B. Filing of Appeal
An appeal must be in writing and filed with or mailed to the Zoning Examiner within 30
after the final action is taken. Final action on a zoning regulation is the effective date of the regulation. No fee is charged for an appeal under this section.
C. Public Hearing
1. Public notice shall be mailed to the appellant and to the parties entitled to notice of the administrative decision at least ten
before the appeal is heard.
2. The Zoning Examiner shall schedule a public hearing on the appeal to be held no later than 30
after receipt of the appeal.
D. Statement of
Authority
In all proceedings under this section, the
shall provide the Zoning Examiner with a statement of the
’s authority to require the dedication or exaction or to adopt or amend the zoning regulation. The
has the burden to establish in its statement of authority the nexus between the dedication or exaction and a legitimate
interest, and that the proposed dedication, exaction or zoning regulation is roughly proportional to the impact of the proposed use, improvement or
or, in the case of a zoning regulation, that the zoning regulation does not create a taking of property in
of the Fifth Amendment to the United States Constitution.
E. Zoning Examiner’s Decision
The Zoning Examiner shall decide the appeal within five
after the appeal is heard. If the
has met its burden set forth in subsection D above, the appeal shall be denied. If the
has failed to meet its burden as set forth in subsection D above, the Zoning Examiner shall:
1. In the case of a dedication or exaction, modify or delete the requirement appealed under this section; or,
2. In the case of a zoning regulation, transmit a recommendation for further action to the Mayor and Council.
F. Appeal of Zoning Examiner’s Decision
At anytime within 30
after the Zoning Examiner renders a decision an individual may file a complaint for trial de novo in the superior court, pursuant to A.R.S. §9-500.12.G.
A. Applicability
The procedures in this Section 3.10.1, apply to both Board of Adjustment hearing on appeals and requests for variances. Appeals and applications for variances are filed with the PDSD.
B.
of Planning and Development Services Department (PDSD) Recommendation
The PDSD
prepares a recommendation and forwards it, together with any additional materials provided by the applicant or any other
to the applicant and the B/A not less than five
prior to the scheduled public hearing. The recommendation shall be in the form of a written report that includes the request and present plans, policies, standards, and other information relating to the request. The recommendation shall include a recommended action by the B/A or a statement that the PDSD has no objection to the request. The PDSD
shall also solicit a recommendation from the Design Review Board or the Stormwater Technical Advisory Committee (STAC) if a recommendation from either of these bodies is required by Section 3.10.2.A or Section 3.10.3.G.2.
C. Notice
Notice of public hearings is required in accordance with Section 3.2.4.
D. Limitation on Contact with the Board of Adjustment
Except for a duly noticed
inspection, study, and public hearing, no
shall contact or discuss the merits of any case with the members of the B/A between the filing of the appeal or variance and the final determination by the B/A.
E. Board of Adjustment Public Hearing
The B/A may hold a study session and shall hold a public hearing on an application in accordance with the rules and standards of the Board of Adjustment and the requirements listed below.
1. Except as permitted in the public hearing and the procedures for submission of written materials, no
shall communicate with a member of the B/A regarding a matter to be decided by the Board any time prior to the expiration of the time for reconsideration of a decision.
2. The chair of the B/A or
presiding may administer oaths and may compel the attendance of witnesses and the production of relevant information, including witnesses requested by any
.
3. The chair or
presiding may impose any reasonable limitations on the number of speakers heard and may establish the nature and length of testimony by speakers.
4. Comments may be given by any
, either verbally or in writing.
5. Following the close of the hearing and prior to making a decision or recommendation, the B/A may discuss the matter and further question staff or any
submitting comment.
6. A record of the hearing must be made and retained as a public record.
F. Decision
Following the public hearing, the decision by the B/A is announced and is final at the time the decision is made.
G. Reconsideration
The B/A may consider one request for reconsideration by the applicant or a
, if:
1. A written request is filed with the Zoning Administrator within 14 calendar
after the Board has rendered its decision; and,
2. A request for reconsideration may be made only where there is an error in fact or law in the decision or where a
has new evidence or material that was not available at the time of the public hearing. The request shall be scheduled for the next regular meeting of the Board of Adjustment.
H. Issuance of Permits and Approvals
No permits or
approvals based on the decision shall be issued, no inspections shall be performed, nor other formal action shall be taken while the case is pending before the B/A or before the expiration of the period for reconsideration if no request is filed. If a request for reconsideration is filed, no permits or
approvals based on the decision shall be issued, or other formal action taken until completion of action on the request for reconsideration is announced by the Board of Adjustment.
A. Decisions Subject to B/A Appeal
Appeals to the following decisions are processed in accordance with the B/A appeal procedure:
1. Decisions by the Zoning Administrator, including interpretations of the
, notices of
of the
, and determinations of
of conditional uses consistent with Section 10.3.3;
2. Decisions by the PDSD
on applications processed in accordance with the 100' Notice Procedure, Section 3.3.4;
3. Decisions by the PDSD
on a Special Exception
;
4. Review decisions where the PDSD
has challenged the historic designation of a proposed for demolition;
5. Decisions of the Design Review Board (DRB) pertaining to applications in Neighborhood Preservation
as permitted in Section 5.10.3.I;
6. Decisions by the PDSD
on Design Development Option applications;
7. Decisions by the PDSD
on Minor and Major Project Design Review applications in the Rio Nuevo District; and,
8. Other determinations in accordance with the
.
B. Filing of an Appeal
Appeals must be filed with the Zoning Administrator within 14
of the effective date of the decision, or within the time provided by the individual procedure from which the decision is appealed. An appeal shall be scheduled for consideration by the B/A at the next regular meeting that is at least 35
following the filing of the appeal. The Zoning Administrator may, for good cause, grant one extension to the second regular meeting after the filing of the appeal. The filing of an appeal stays the issuance of permits and approvals and all formal
action on the
proposal subject to the appeal.
C. Public Hearing and Public Notice Required
A public hearing with the B/A is required. The B/A may continue the public hearing for up to 45
. The public hearing shall not be continued for more than 45
without the consent of the applicant, regardless of who is the appellant. Public notice of the public hearing is required in accordance with Table 3.2-1 and Sections 3.2.4.A-G.
D. Decision
The B/A may affirm, reverse, or modify the decision being appealed, and may impose conditions necessary and appropriate to implement the
and other pertinent standards.
E. Reconsideration
The appellant, the applicant, the Zoning Administrator, or in the case of a decision relating to NPZ design review, the PDSD
, may request reconsideration of a decision on an appeal as provided in Section 3.10.1.G.
(Am. Ord. 11070, 5/14/2013; Am. Ord. 11732, 2/19/2020)
A. Applicability
The following applications are processed in accordance with the B/A Variance procedure:
1. Variances from the requirements of the
; and,
2. Requests for major Modifications of Development Regulations (MDR) in the Rio Nuevo District (see Section 5.11.9 for the minor and major MDR criteria).
B. Pre-Application Conference Required
A pre-application conference with
staff is required in accordance with Section 3.2.1.
C. Neighborhood Meeting Required
The applicant is required to conduct a neighborhood meeting and provide notice of the meeting in accordance with Section 3.2.2.
D. Application
Submittal of an application to the PDSD is required in order to process the request. See the Administrative Manual for the application submittal requirements. Applications shall be reviewed for completeness in compliance with Section 3.2.3.A.
E. Notice of Application
The PDSD
shall mail and post notice of the application in accordance with Section 3.2.4.B & F.
F. Public Comment Period
For 20
following the date on which notice is mailed, the public may submit comments on the proposal to the PDSD.
G. Review
1. Review is conducted by the PDSD staff and other agencies, committees or advisory boards as required by the
, and others as may be deemed appropriate by the PDSD
.
2. Variance requests from the Environmental Resource
standards require review by the Design Review Board and the Stormwater Technical Advisory Committee as provided in Section 5.7.7. Variance requests from Scenic Corridor
, the Gateway Corridor
, the
and screening regulations, and the native plant protection standards require DRB review as provided in Sections 5.3.14, 5.5.6, 7.6.9.D, and 7.7.6.B respectively.
H. Public Hearing and Public Notice Required
A public hearing with the B/A on the request is required. Mailed notice of the public hearing is required in accordance with Section 3.2.4.B. The notice of the public hearing may be consolidated with the notice of the application submittal.
I. Advisory Board Review
Variance requests from the Environmental Resource
standards require review by the Design Review Board and the Stormwater Technical Advisory Committee as provided in Section 5.7.7. Variance requests from the Scenic Corridor
, the Gateway Corridor
, the
and screening regulations, and the native plant preservation standards require DRB review as provided in Sections 5.3.14, 5.5.6, 7.6.9.D, and 7.7.6.B, respectively.
J. Board of Adjustment Decision
The B/A may close the public hearing or continue it to a specific date, time, and place provided the continuance is not for more than 120
. The B/A shall issue a decision in accordance with the findings required for approval of the application at the conclusion of the public hearing.
K. Findings for Approval
The B/A may approve a variance only if it finds:
1. That, because there are special circumstances applicable to the property, strict enforcement of the
will deprive such property of privileges enjoyed by other property of the same classification in the same
;
2. That such special circumstances were not self-imposed or created by the owner or one in possession of the property;
3. That the variance granted is subject to such conditions as will assure that the adjustment authorized shall not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and
in which such property is located;
4. That, because of special circumstances applicable to the property, including its size, shape, topography, location, and surroundings, the property cannot reasonably be developed in conformity with the provisions of the
;
5. That the granting of the variance shall not be detrimental to the public welfare or injurious to other property or
in the neighborhood in which the property is located;
6. That the proposed variance shall not impair an adequate supply of light and air to
property, substantially increase congestion, or substantially diminish or impair property values within the neighborhood; and,
7. That the variance, if granted, is the minimum variance that will afford relief and is the least modification possible of the
provisions that are in question.
L. Variance Powers Not Granted to Board of Adjustment
The B/A may not:
1. Make any changes in the uses permitted in any zoning classification;
2. Grant a variance if the special circumstances applicable to the property are self-imposed by the property owner;
3. Grant a variance to any administrative requirement of the
or to any requirement which is not a specific
regulation or use-specific standards required of a
;
4. Grant a variance to the use-specific standards required of Educational Uses as provided in Section 4.9.3.E.; or,
5. Delete or vary any use-specific standards applicable to a Special Exception Land Use as required by the
, unless specifically allowed by the
, or as established as a condition by the decision-making body in granting the use.
M. Notice of Decision Required
Notice of the decision shall be mailed within three
of the decision to the applicant and
who received notice of acceptance of application.
N. Reconsideration
The B/A may consider one request for reconsideration by the applicant or a
, in accordance with Section 3.10.1.G.
O. Change of Condition
After a variance has been granted by the B/A, the property owner/applicant may request a change to a condition for approval imposed by the B/A based upon changed circumstances that affect the condition. The request shall be heard by the B/A. The B/A shall initially determine whether the request is for a minor change of condition that does not materially alter the variance and does not materially affect any other properties. If the B/A determines that the request is for a minor change of condition, it may decide whether to approve or deny the change. If the B/A determines that the request is not a minor change of condition and there are reasonable grounds for the request, the case shall be scheduled for a public hearing and notice provided in accordance with Section 3.2.4.
P. Expiration of Approval
Any variance granted through this process or on appeal is null and void if
permits are not issued or compliance with conditions of approval does not occur within 180
from the date of approval. A shorter time period for compliance may be required as a condition of approval. Two extensions of up to 180
each may be granted by the PDSD
for good cause. A
that has been recorded in compliance with the variance is exempt from the expiration period in this section.
(Am. Ord. 11070, 5/14/2013; Am. Ord. 11127, 11/6/2013)
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