Public Hearing followed by discussion and possible action on any and all matters regarding Variance Case No. 2023-0632.  A request by Rafael Sanchez Jr and Ana Sanchez, owners, for a Variance from the City of San Luis Zoning Ordinance Section 18.70.100 (A) to increase the permitted wall height within the required front yard setback on the property located at 1960 E. Lopez Street in San Luis, Arizona.  (Jose A. Guzman, Director of Development Services)

A. Open Public Hearing
     1. Presentation by staff and/or applicant
     2. Call to the public on this item
B. Close Public Hearing
C. Action on Variance Case No. 2023-0632

The property in question is located at 1960 E. Lopez Street; parcel number 776-20-332 and is zoned as a Medium-High Density Residential Zoning District (R-2).  The request is to increase the allowable wall height from three feet six inches to six feet within the required front yard setback from City Code Chapter 18.70.100 (A) of the City of San Luis Zoning Ordinance. This variance will allow the owner to retain the existing wall already constructed on-site. 

BACKGROUND:
 A lot-tie was recorded in May 2021 called Magana Lot Tie. This lot tie created a lot that would have two frontages, one on Lopez Street and the other on Stephens Street. The recorded lot tie included the following language, "The backyard setback will remain the same as the front setback at twenty feet." Therefore both frontages of the lot would have a 20-feet front yard setback with no allowable height of a fence, wall or hedge to be erected higher than three feet six inches (3'6") as called out in the recorded lot tie.

AGENCY REVIEW:
As part of the review process, all land use cases are reviewed by various city and outside agencies.

As required by the State Statute, staff sent notification letters to property owners within 300 feet of the proposed project (56 letters total, with five (5) letters being hand delivered). Other than the City of San Luis Legal Department, the city has not received any other significant concerns or objections from the various review agencies or adjacent property owners.

Legal Department Comment as of 12/23/23:

1. The reason for lower height is to make sure line of sight for drivers in sedans is not impeded. Be sure the increase in height does not create traffic hazard. Also this is a self created problem and not legally entitled to a variance.

CRITERIA FOR APPROVAL:
The San Luis City Code §18.15.060(D)(1) states:

"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 subsection (C) of this section." [The reference to subsection (C)is to San Luis City Code § 18.15.60(C)] Arizona Revised Statute § 9 462.06 governs variances and outlines the state requirements for the granting of a variance.

Subsection G(2) states that the Board of Adjustment shall, "Hear and decide appeals for variances from the terms of the zoning ordinance only if, because of special circumstances applicable to the property, including its size, shape, topography, location, or surroundings, the strict application of the zoning ordinance will deprive the property of privileges enjoyed by other property of the same classification in the same zoning district. Any variance granted is subject to 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 zone in which the property is located."

Section H states 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.

City Code §18.15.060(C) outlines the requirements for approving a variance. 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; and
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.

ANALYSIS:

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.
   
   Staff has not identified any special circumstances or conditions associated with this variance request. The property is a rectangular-shaped lot of 11,831 square feet in size, which exceeds the minimum lot size requirement of 6,000 square feet for this zoning district and is bigger compared to the lots in the surrounding area. The owner's existing six feet wall was built in violation of the zoning regulations and a code enforcement case was opened. The owner's proposal of having a six-foot wall triggers the need for a variance. However, it is possible to reduce the wall height to align with zoning regulations.
    
2. The above special circumstances or conditions are preexisting and are not created or self-imposed by the owner or applicant.
   
   There are no special circumstances or conditions associated with this variance request. The circumstances that prompt the request are the result of choices made by the property owner, and they can be addressed by reducing the wall height to comply with current zoning regulations.
    
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.
   
   Staff's assessment indicates that the approval of this variance request is not required to preserve substantial property rights.  The property is currently being used as a single-family residential unit. Enforcement of the zoning ordinance will not deprive such property of privileges enjoyed by other properties of the same classification in the same zoning district. On the contrary, granting this variance would constitute special privileges inconsistent with the limitations on other properties in the same 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 safety of the residents is the main concern about this variance. The purpose of the height limitation on walls within the front setbacks is to allow visibility for both pedestrians and incoming traffic. Granting the variance can potentially lead to avoidable accidents in the neighborhood. Therefore, this variance poses a danger to the vicinity, adjacent property, the neighborhood, and public welfare. 

STAFF RECOMMENDATION:
Staff has reviewed this request and has determined that it does not meet the required criteria, therefore staff recommends the Board of Adjustment to deny Variance Case No. 2023-0632.