Public hearing followed by discussion and possible action concerning Variance Case No. 2014-0333. A request by Adrian Saavedra, property owner, for a variance to reduce the side yard setback from 7-feet to 0-feet to allow an existing structure on property located at 1405 E. Monreal Lane, San Luis, AZ. (Item continued from November 12, 2014) (John Starkey, Zoning Administrator)

1. Open public hearing
2. Close public hearing
3. Action on Variance Case No. 2014-0333.

This request was first presented to the Board of Adjustment during the regular Council meeting of November 12, 2014. The item was continued to the work session of November 19, 2014 for further discussion. No action/motion was made regarding this case, which is why this request is back on the agenda. 
 
The property in question is located in Bienestar Estates No.3- Medium Density Residential (R1-6) Zoning District. The parcel number is 1477649270, which have a total of 6,797 sq. ft.
 
The applicant is requesting to allow 0-feet side setback instead of the 7-feet required by the City of San Luis Zoning Ordinance-Section 5.3 Table No. 3. The reason for the request is to keep an existing structure that was constructed without a building permit; which is in violation of the City of San Luis Zoning Ordinance (Section 1.3-C) and Building Code (IRC03 Section 105.1).
 
Building Safety sent code violation letters to several properties with structures built without a permit. This is the first property owner who submitted an application for a variance. He received a code violation letter in September 17, 2014.
 
CRITERIA FOR APPROVAL: All requests for a Variance from the City of San Luis Zoning Ordinance must meet the criteria for a Variance as set forth in the City of San Luis Zoning Ordinance.  A variance is not a right.  It may be granted to an applicant only if the applicant establishes compliance with all of the hardship criteria established in A.R.S. §9-462.06 and in Sec 3.5 (C.) of this Ordinance.  In all cases, the application shall address all of the following hardship criteria:

1. There exist special circumstances or conditions regarding the land or building referred to in the application, which do not apply to other properties in the zoning district.
2. The above special circumstances or conditions are preexisting and are not created or self-imposed by the owner or applicant.
3. The variance is necessary for the preservation of substantial property rights.  Without a variance the property cannot be used for purposes otherwise allowed in this zoning district.
4. The authorizing of the variance will not be materially detrimental to persons residing or working in the vicinity, to adjacent property, or to the neighborhood or the public welfare.

The Arizona Revised Statutes (§9-462.069-462.06  Board of Adjustment) further state that the Board may not:

1. Make any changes in the uses permitted in any zoning classification or zoning district.
2. Grant a variance if the special circumstances applicable to the property are self-imposed by the property owner.

Violation of Codes: In addition to not being in compliance with the Zoning Ordinance this shade structure is also in violation of the Building and Fire Codes:
 
International Residential Code 2003: The purpose of this code is to provide minimum requirements to safeguard the public safety, health and general welfare, though affordability, structural strength means of egress facilities, stability, sanitation, light and ventilation, energy conservation and safety to life and property from fire and other hazards attributed to the built environment.

• IRC03 Section R302.1-Exterior Walls: “Exterior walls with a fire separation distance less than 3 feet (914mm) shall have not less than a one-hour fire-resistive rating with exposure from both sides. Projections shall not extend to a point closer than-2feet . (610 mm) from the line used to determine the fire separation distance… Projections extending into the fire separation distance shall have not less than one-hour fire-resistive construction on the underside…”
   
• IRC03 Section R104.1-Alternative materials, design and methods of construction and equipment. “…An alternative material, design or method of construction shall be approved where the building official finds that the proposed design is satisfactory and complies with the intent of the provisions of this code, and that the material, method or work offered is, for the purpose intended, at least the equivalent of that prescribed in this code…”
  • R104.11.1-Tests. “Whenever there is insufficient evidence of compliance with the provisions of this code, or evidence that a material or method does not conform to the requirements of this code, or in order to substantiate claims for alternative materials or methods, the building official shall have the authority to require tests as evidence of compliance to be made at no expense of the jurisdiction.”(Building Safety Division requires this type of structure to be certified by a registered structural engineer as evidence that the material and method conform to this code).

NFPA 1: Uniform Fire Code 2003: The purpose of this Code is to prescribe minimum requirements necessary to establish a reasonable level of fire and life safety and property protection from the hazards created by fire, explosion, and dangerous conditions.

• NFPA1 2003 Section 25.5.2.1- “The design, materials, and construction of the building shall be based on plans and specifications prepared by a licensed architect or engineer knowledgeable in tensioned-membrane construction.”
• NFPA1 2003 Section 25.5.2.2- “Material loads and strength shall be based on physical properties of the materials verified and certified by an approved testing laboratory.” 

As provided by the Arizona Revised Statutes (§9-462.06-G.1) and the Zoning Ordinance (Section 2.2-B.1): the Board of Adjustment has the power and duty to hear and decide requests for variances from the terms of the Zoning Ordinance, only if the criteria for approval is met (A.R.S. §9-462.06).
 
This means that even if the request for this variance is approved, the existing structure will still be in violation of the Building and Fire Codes. This variance is to allow the existing structure in the same location, but it will still be required to comply with other applicable regulations adopted by the City.  
 
COMMENTS: As with all Variance requests, this was distributed to various review agencies.  We received only one comment, attached, from the City of San Luis Fire Department (10-9-14).
 
BOARD OF ADJUSTMENT MEETING: The Board of Adjustment held a meeting on November 12, 2014 at City Hall Council Chambers at 7:00 PM . The item was continued, for further discussion, to the City Council Work Session Meeting held on November 19, 2014. The minutes of both meetings are attached.
 
ANALYSIS: The staff has reviewed this request and has determined that the request does not meet the criteria for granting a Variance from the Zoning Ordinance.

1. There exist special circumstances or conditions regarding the land or building referred to in the application, which do not apply to other properties in the zoning district.

2. The above special circumstances or conditions are preexisting and are not created or self-imposed by the owner or applicant.

3. The variance is necessary for the preservation of substantial property rights.  Without a variance the property cannot be used for purposes otherwise allowed in this zoning district.

4. The authorizing of the variance will not be materially detrimental to persons residing or working in the vicinity, to adjacent property, or to the neighborhood or the public welfare.

 
City staff recommends denial of this request to reduce side yard setback from 7-feet to 0-feet on property located at 1405 E. Monreal Ln., San Luis, AZ. The reason for this recommendation is that the applicant does not meet the four required criteria for a Variance as required by City of San Luis Zoning Ordinance and by the Arizona Revised Statutes.