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  Item # 2.       
Meeting Date: 09/16/2020  
Requested by: Bayer Vella
Submitted By: Hannah Oden, Community and Economic Development
Case Number: 2001982

SUBJECT:
DISCUSSION REGARDING A ZONING CODE TEXT AMENDMENT TO SECTION 23.5 FOR AN ADMINISTRATIVE REVIEW AND POTENTIAL APPROVAL PROCESS FOR MINOR BUILDING SETBACK REDUCTIONS
RECOMMENDATION:
The Planning and Zoning Commission will consider this item on September 8, 2020. The commission's recommendation will be reported to Town Council at the September 16, 2020 Study Session.
EXECUTIVE SUMMARY:
The purpose of this item is to consider a proposed zoning code text amendment for a process for administrative review and potential approval of minor building setback reductions (Attachment 1). Zoning Code amendments are considered for recommendation by the Planning and Zoning Commission and require action by Town Council. 

Building setbacks are defined in the Zoning Code. Currently, any building setback reduction, no matter how minor, must be considered as a variance case by the Board of Adjustment. Variance cases require that five (5) specific findings must be satisfied per State Law and Section 21.6 of the Zoning Code, which are often very difficult to meet unless unique, special circumstances apply to a property. Even if building setback reductions are minor and have no adverse effects to surrounding properties, they are often recommended for denial because the specific legalistic findings have not been satisfied.

Many jurisdictions in Arizona allow administrative relief for minor setback modifications, when warranted, based on specific criteria and limitations permitted by State Law. These jurisdictions include Scottsdale, Sedona, Flagstaff, Gilbert, Sahuarita, Pima County, and Tucson (Attachment 2). Staff is proposing a code amendment for a similar allowance in the Town's Zoning Code only when minor setback reduction requests adhere to specific criteria. 

Using existing parameters of the Zoning Code and State Law in unison with comparing other jurisdictions' allowances for administrative review and approval of minor setback modifications, the proposed code amendment adds language that would allow for administrative review and potential approval of setback reductions when warranted and when specific standards are met. 

This proposed code amendment has several key components which are summarized below:
  • Applies only to single family residential properties for individual homeowners, not entire subdivision developments.
  • Applies only to setback reductions that are 10 percent or less (maximum allowance by State Law) and may not be reduced to closer than five (5) feet to any property line. 
  • The application must be unopposed by affected property owners for a request to be eligible for this process.
  • The proposed standards that must be met as part of this process are intentionally strict and requests are subject to conditions to ensure there are no negative impacts to surrounding properties. Jurisdictions in Arizona that have a process for administrative approval of setback reductions all use similar standards as part of the approval process.
  • Provides an avenue for appeal or a variance application to the Board of Adjustment.
In summary, the proposed code amendment provides a fair, balanced, and time tested process for administrative review and potential approval of minor setback reductions, when warranted, based on specific criteria. The Planning and Zoning Commission will consider this item on September 8, 2020. The Commission's recommendation will be reported to Town Council at the September 16, 2020 Study Session. 
BACKGROUND OR DETAILED INFORMATION:
Currently, any reduction in a building setback, no matter how minor, requires consideration as a variance subject to review and approval by the Board of Adjustment. All variance requests must meet five specific findings required by State Law and Section 21.6 of the Zoning Code. These findings intentionally create a high standard and are often very difficult to meet. Even if the requests have no negative impact to surrounding properties and are minor in nature, they are often recommended for denial because the legalistic variance findings are frequently hard to satisfy. 

Other jurisdictions in Arizona have provisions in their zoning codes to allow for administrative review and approval of minor setback modifications based on specific criteria without the need to go through the legal framework of a variance process. Some jurisdictions have criteria similar to the variance findings, while others have tailored the standards for a setback modification approval to their community (Attachment 2).

As such, the proposed code amendment (Attachment 1) is an effort to allow a similar avenue for administrative review and potential approval of minor setback reductions, when warranted, based on specific standards. Zoning Code amendments are considered by the Planning and Zoning Commission and Town Council. More information on the proposed changes is provided below. 

DISCUSSION AND ANALYSIS
Staff is proposing revising existing code language in Section 23.5.C.2.g to provide clarification and adding a new code section, Section 23.5.C.2.h, related to administrative review and potential approval of setback reduction requests. The complete code amendment can be found in Attachment 1, and a summary and discussion of the proposed changes are described below.

Section 23.5.C.2.g
This existing code section relates to residential setback uses. It allows for flexibility pertaining to attached features of the main home or accessory structures encroaching into a building setback when certain conditions apply. Staff is proposing modifying the language in this section slightly to provide clarification that this is a setback encroachment allowance and only pertains to specific features. It does not grant an entire building setback reduction along a property line. 

The proposed change for this existing code section is minor with the purpose of providing clarification only. It does not result in any substantive change with the applicability or intent of the code.


Section 23.5.C.2.h 
This is a proposed new code section proposed by staff to provide an avenue for administrative review and potential approval of minor setback reductions. The proposed amendment has several core components which are detailed below:

Applicability
The proposed code amendment begins with an applicability section which accomplishes the following:

  • Applies only to single family residential properties for individual homeowners, not an entire subdivision.
  • Applies to main structures and detached accessory buildings.
  • Does not allow for additional setback reductions if a variance or separate modification has already been approved.
  • Does not allow for additional setback reductions or encroachment where the code already provides relief.
  • Does not allow for a reduction in setbacks where it conflicts with a development standard that was a condition of approval from a rezoning or conceptual site plan.
Rationale: This proposed code section provides clear direction on what the amendment applies to, which is main buildings and detached accessory structures on single family residential properties. It is not intended to allow for "double dipping" where setback relief has already been granted (per code or by a variance) or when specific setbacks have been determined by a condition of approval from a rezoning or conceptual site plan. 

Standards
This sections outlines specific standards that setback reduction requests must meet and includes the following:
  • May not exceed a ten (10) percent front, rear, or side setback reduction to be eligible for administrative approval.
  • Setback reductions may not be reduced to closer than five feet from a property line.
  • Must be unopposed by affected properties for administrative approval.
  • May not be materially detrimental to surrounding properties.
  • Allows the Planning and Zoning Administrator to apply conditions to requests to mitigate for potential impacts and endure no special privileges are granted.
Rationale: State law limits setback modifications to ten percent to be eligible for administrative approval. Staff is proposing using this limit as a standard for setback reductions as it wil meet the intent of the code amendment without being too restrictive. For instance, if a building setback is 30 feet, a ten percent reduction would result in 3 feet, reducing the building setback to 27 feet. This allowance would accomplish the intended flexibility of this code amendment without making it impractical by being too restrictive, and would still maintain five feet from any given property line. A table is provided below to illustrate what a ten percent setback reduction would result in.
 
Zoning District Existing
Front
Reduced
Front
  Existing
Side
Reduced 
Side
  Existing
Rear
Reduced
Rear
R1-300 50' 45'   20' 18'   50' 45'
R1-144 50' 45'   20' 18'   50' 45'
R1-72 50' 45'   35' 31.5'   50' 45'
R1-43 30' 27'   20' 18'   40' 36'
R1-36 30' 27'   15' 13.5'   40' 36'
R1-20 30' 27'   15' 13.5'   30' 27'
R1-10 25' 22.5'   10' 9'   25' 22.5'
R1-7 20' 18'   7.5' 6.75'   20' 18'

Another key component of this proposed code section is that all requests must be unopposed by affected property owners to be eligible for the process. This is critical to ensure that all surrounding property owners are both properly notified and that they are not adversely impacted by the request. If there is opposition from affected property owners, this process will not apply. 

Similar to a variance, this proposed code language ensures that setback reduction requests are not materially detrimental to surrounding properties and that they are subject to conditions (such as screening) to mitigate for potential negative impacts and not grant special privileges. Like other jurisdictions in Arizona (Pima County, Sahuarita, Sedona, Flagstaff, Gilbert, Scottsdale, Tucson) who use this process, staff is proposing strict criteria that hold setback reduction requests to a high standard to ensure no adverse effects occur as a result.

Noticing of Directly Affected Property Owners
The proposed code amendment defines directly affected property owners that must be notified by mail of a setback reduction request. This includes the following:
  • Property owners adjacent (close to) to the subject property or abutting (sharing a common property line) the subject property depending on the nature of the request. 
  • Other properties deemed to be materially affected by the request as determined by the Planning and Zoning Administrator.
Rationale: Directly affected property owners are those who will be most impacted by a setback reduction request. This proposed code language encompasses affected property owners as those adjacent to the subject property, which would include those both next to and near the subject property, including those across the street. If the request is for a side or rear setback reduction request, then only abutting properties are considered directly affected. Abutting properties are generally those on either side or behind the subject property, while adjacent properties would include those in front of the subject property.

Opposition by Affected Property Owners
This proposed code amendment provides direction when opposition is received by affected property owners and includes the following:
  • After notices are mailed, there will be a 15-day comment period for directly affected property owners to respond.
  • If no response in opposition is received by staff within the 15-day comment period, the application shall be considered unopposed.
  • If written opposition is received, the Planning and Zoning Administrator may add conditions to the request and meet with the affected property owner and applicant to reach a consensus. 
  • If opposition remains, the request must be denied.
Rationale: Town staff will be responsible for noticing directly affected property owners by mail which will be accompanied by a 15-day comment period. This will ensure consistency among applications and will provide directly affected property owners the opportunity to provide comments regarding the application. 

If comments in opposition are received, the proposed code language provides an avenue for opposition to be addressed, such as adding a condition. However, if opposition remains, the request must be denied as it would not satisfy the requirement for all setback reduction requests to be unopposed by affected property owners.

Review and Appeal Process
The last component of the proposed code amendment is related to the review and appeal process and includes the following:
  • Provides the Planning and Zoning Administrator review and approval authority.
  • Decision may be appealed to the Board of Adjustment and allows the applicant to apply for a variance.
Rationale: A critical component of this proposed code amendment is that it provides an avenue for aggrieved parties to appeal the administrative decision to the Board of Adjustment. This is similar to the process used in other jurisdictions, and the proposed appeal process would follow the existing process in Section 22.12. Applicants also retain the ability to have their request considered by the Board of Adjustment as a variance case.

GENERAL PLAN CONFORMANCE
The proposed code amendment is supported by the General Plan by providing design flexibility for residents, ensuring there are no negative impacts to affected neighbors, and providing an opportunity for directly affected neighbors to provide input on setback reduction proposals. 

PUBLIC NOTIFICATION
Public Notice has been provided as follows:
  • All HOAs in Town were notified of this hearing
  • Public hearing notices were posted:
    • In the Territorial Newspaper
    • At Town Hall
    • On the Town website 
A study session with the Board of Adjustment was held on August 31 to discuss the proposed code amendment and gather feedback. The Board was supportive of the proposed amendment and had questions regarding the 15-day neighboring property owner notices for a minor setback reduction request, the timing of this zoning code amendment consideration by the Planning and Zoning Commission and Town Council, and the number of situations this process would apply to. Staff responded to the questions and no changes to the proposed code amendment were requested by the Board.

This proposed code amendment is scheduled for Planning Commission consideration on September 8. Staff will update the Town Council about the discussion and recommendation during the study session. 

SUMMARY
The proposed code amendment provides an avenue for administrative review and potential approval of minor setback reductions. The proposed additions to the code would give property owners the ability for a minor setback reduction approval without the need to go through the extensive legal framework of a variance process, which intentionally sets high standards that are often very difficult to meet. The intent of this code amendment is to allow for flexibility, when warranted and based on specific standards, for minor setback reductions that would have no adverse impacts to the surrounding area. The proposed code amendment accomplishes the following:
  • Applies only to single family residential properties for individual homeowners, not entire subdivision developments.
  • Applies only to setback reductions that are ten percent or less and no less than five feet to any property line.
  • Requires unanimous support from affected property owners.
  • Uses strict standards and requests are subject to conditions to ensure no negative impacts to surrounding properties.
  •  Uses an existing avenue for appeal to the Board of Adjustment.

This proposed Zoning Code Amendment is supported by the General Plan and provides a fair, balanced, and time tested process for administrative review and potential approval of minor setback reductions, when warranted, based on specific criteria. The Planning and Zoning Commission will consider this item on September 8, 2020. The Commission's recommendation will be reported to Town Council prior to the September 16, 2020 meeting.
FISCAL IMPACT:
N/A
SUGGESTED MOTION:
This item is for information and discussion purposes only. 
Attachments
Attachment 1: Proposed Code Amendment
Attachment 2: Setback Reduction Allowances in Other Jurisdictions
Staff Presentation


    

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