Board of adjustment – USMC style

By Linda Bentley | January 20, 2010

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david solomonDuring the Jan. 12 board of adjustment meeting, David Solomon, on behalf of Real Estate Equity Lending, Inc., requested a variance for hillside disturbance from the allowed 25 percent to 37 percent so his company can complete the home it repossessed on Skyline Drive.
Photo by Linda Bentley

CAVE CREEK – Vice Chair George Ross, a retired U.S. Marine Corps combat pilot, chaired the Jan. 12 board of adjustment meeting in Chairman Fred Mueller’s absence.

Ross also ran the meeting in the no-nonsense manner of his USMC training, setting out the rules for decorum up front. Ross said if anyone wished to speak, they needed to fill out a slip, adding, “I insist that you stay on topic.”

Following the unanimous reelection of Fred Mueller as chair and Ross as Vice Chair, Planning Director Ian Cordwell introduced the agenda item and said the property was before the board in October, requesting a variance for hillside lot disturbance from 25 percent to 44 percent, which he said failed by a vote of 2-2.

Since then, Cordwell stated, “The applicant has looked at the site and has determined he can reduce the disturbance to 37 percent.”

Ross summarized his recollection of the situation leading up to the variance application heard during the October board of adjustment meeting and said, “GV Group purchased the property in 2003, divided it into three lots with access on the north. There was an altercation about access and GV chose to relocate access to lot C, which increased the disturbed area. They installed a temporary construction road and then went into bankruptcy.”

Ross said GV also obtained a permit to build a pool and patio, but underestimated the amount of lot disturbance.

Applicant David Solomon of Real Estate Equity Lending, Inc. (REEL), said Ross’ story was “very accurate,” while pointing out, “We didn’t purchase the property. We were the lender and foreclosed.”

Solomon said, the total lot disturbance equals 56 percent, which is only 6 percent greater than permitted by ordinance.

He stated the home was almost complete but the pool was as far as they could go without a “C of O” (certificate of occupancy) on the residence.

Solomon said REEL retained a landscape architect and has been able to reduce the previously requested 44 percent disturbance to 37 percent.

A lot of the issue boiled down to the driveway as built versus how it was designed.
Member Brian Sirower asked what the difference was between the as-built driveway versus the design.

Solomon explained the disturbance, as designed and approved, was 4,300 square feet, or 22 percent of the total lot, but was 6,200 square feet, or 31 percent, lot disturbance as built.
He also noted when GV properties obtained the permit for the pool and patio the application stated it would be 720 square feet of lot disturbance, when in actuality it was 3,300 square feet, a difference of more than 2,500 square feet.

Although Solomon stated REEL was not successful in contacting all the surrounding neighbors, the several they did contact supported the variance request and having the home completed and people living in it.

He said the lot disturbance was 12 percent greater than allowed, in total, and there were unique circumstances that prevented them from completing the home.

Solomon clarified GV Group defaulted on the loan, no one bid on the house at auction, and REEL foreclosed on the property.

During public comment, Arek Fressadi stated he is the owner of the property to the north.
While Fressadi stated he has “a great deal of empathy” for the applicant, he told the board the law doesn’t allow them to grant a variance if the condition is self imposed.

Ross told Fressadi, “Don’t tell me what I’m required or permitted to do.”

Fressadi asked if they’d read the numerous e-mails he’d sent detailing case law on the issue and said by their blank looks it appeared they had not received them. He said he sent them to Cordwell and Town Clerk Carrie Dyrek and expressed disappointment his e-mails had not been passed along to the board.

He began discussing the case Rivera v. City of Phoenix, citing the court of appeals upheld denial of Rivera’s variance request based on false information provided on his application, and said, “You cannot grant a variance if the condition is self imposed.”

Ross said, “This board is duty bound. We will adjudicate this variance based on the criteria,” and told Fressadi if he didn’t agree with the board’s decision, he could appeal it through the judicial system.

Town Attorney Jim Rigberg confirmed Ross’ statements regarding adherence to criteria and the appeal process.

Fressadi said the facts the board was provided were wrong, stating, “I know. I was part and parcel to creating this,” and then explained how he had entered into a driveway maintenance agreement with the former owners, which was later rescinded.

He stated he sold the parcel to Keith Vertes of GV Group and said the driveway has to be in compliance with the hillside ordinance.

Fressadi began discussing his own property when Ross interrupted and said, “Lot C has nothing to do with other property” and asked that Fressadi “stop belaboring this board with extraneous information.”

Sirower moved to approve the variance and said, “I think we can take note of previous discussions that realignment of the driveway was ultimately responsible for the problem.”

Pello, who seconded the motion, said, “I agree. I don’t believe it was self-imposed.”
Sirower also noted, “The adjacent property owners’ comments cannot go unnoticed.”
The board voted unanimously in favor of granting the variance.