Regular Meeting
August 11, 2009
MINUTES OF A REGULAR MEETING OF THE CASA GRANDE BOARD OF ADJUSTMENT HELD ON TUESDAY, AUGUST 11, 2009 AT 6:00 P.M. IN THE COUNCIL CHAMBERS LOCATED AT CITY HALL, 510 E. FLORENCE BOULEVARD, CASA GRANDE, ARIZONA
I. Call to Order:
Chairman Vangilder called the meeting to order at 6:02 p.m.
Brief introductions were made by each Board Member.
II. Roll Call:
Members Present:
Member Badger
Member Hernandez
Member Zeibak
Member Garcia
Chairman Vangilder
Absent:
Member Swieboda Unexcused
Vice-Chairman Gentzkow Unexcused
City Staff Present:
Rick Miller, Planning and Development Director
Brett Wallace, City Attorney
Melanie Podolak, Administrative Assistant
Chairman Vangilder proposed to move agenda item V. Discussion before agenda item IV. Presentation. All Members were in agreement to move agenda items.
Note: The minutes have been corrected to reflect the above changes.
III. Approval of Minutes:
May 12, 2009
Member Garcia made a motion to approve the minutes dated May 12, 2009. Member Hernandez seconded the motion. A voice call vote was called; all were in favor.
IV. Discussion:
City Attorney will update Board Members on the Mikron vs. Casa Grande Board of Adjustment Litigation.
Brett Wallace, City Attorney, addressed the Board and stated the Mikron case which had been heard by the Board of Adjustment several months ago had been appealed to the Superior Court. Judge Carter Olson has his ruling which remanded the case back to the Board of Adjustment. Since this ruling there has been a motion for reconsideration filed with the Superior Court and this request is pending.
City Attorney Wallace stated if the motion to reconsider is approved it will have the effect of taking the matter from the Board of Adjustment and sending it directly to the City Council. He noted the court briefing is scheduled for August 24th and at that point the court will determine whether they will hear oral arguments on the matter. He stated the ruling should be made in approximately one month.
Chairman Vangilder stated if the case should be remanded back to the Board, he would like to urge all the Board Members to visit the site and look at the location as well as the site. He noted the site plans and charts are very helpful but going to the site you get to look at all the elements.
City Attorney Wallace stated he is not sure what the scope of this case will be when and if we get the case back from the courts. He also cautioned the Board members that if the case comes back to the Board any member who has had any ex-parte contact must disclose the information.
V. Call to the Public:
Chairman Vangilder asked the Jackson’s if they would like to come forward to address the Board.
Michael Jackson replied “no”.
VI. Presentation:
City Attorney will present a brief orientation for new Board Members on the role of the Board of Adjustment and the Open Meeting Law.
City Attorney Wallace gave an overview to the Board regarding their roles and the open meeting laws. He stated there are three cases in which the Board will usually meet; traditionally a variance request is why the Board typically meets. A variance request is a request to bend the rules a little, but the variance request has very strict requirements in relation to the zoning code. Another reason the Board would met is for an appeal, which is usually requested when an applicant does not like the decision the Zoning Administrator has made. City Attorney Wallace noted the Board of Adjustment is a quasi judicial body. A quasi judicial body takes the facts and applies them to the law and interprets the zoning ordinance. He also noted that being a quasi judicial body you do not have the same rules as a legislative body. You can not just bend the rules, you have to look at what the statue states as well as the facts to establish your decision. City Attorney Wallace stated the third role the Board has is the ability to make recommend zoning ordinance changes to the City Council. Consequently when the Board sees items within the zoning ordinance you do not agree with or feel it leaves room for debate the Board has the opportunity to recommend the changes to the City Council.
Director Miller further noted once the Boards decision is made regarding a case, an appeal to the Boards decision goes to the Superior Court not to the City Council. Director Miller stated the Board does not meet often because we have a code that is clear and fair.
Chairman Vangilder summarized the overview given by City Attorney Wallace by stating the real issue the Board faces is they do not set the rules, they just look at the issues and determine if comports with the statues or not. Chairman Vangilder directed the new Members to the minutes from the last Board of Adjustment meeting and noted a variance was approved. Staff recommended the approval primarily due to the work the applicant had done in terms of getting the Historical Commission’s recommendations and complying with those recommendations. Chairman Vangilder also stated he has made several recommendations regarding areas of the city code that he feels need to be addressed, which is a proper role of the Boards.
City Attorney Wallace showed the Board a power point presentation on the “Open Meeting Law” and did a brief overview of each slide. He stressed to the Board that any time there is a gathering in person or through technological devices of a quorum of a public body at which they discuss, propose or take legal action is considered a meeting. He noted a quorum is broadly defined and as technology evolves this issue becomes more important. It includes phone, e-mails and text communication, so any time you have a discussion of four members at one time through a series of ways you are having a meeting. City Attorney Wallace stated it is very easy to inadvertently create a meeting with a an e-mail which could be done by hitting reply to all, then all the other Board Members that were sent the e-mail just received all your comments/concerns; you just held a meeting.
Chairman Vangilder questioned if the Board Members need to document any conversations they have with the public or staff and save all e-mails? He stated it is not improper to receive, but it is improper not to disclose.
City Attorney Wallace replied as a quasi judicial board it would be considered ex-parte contact; and must be disclosed. He noted this will be discussed later in the meeting.
City Attorney Wallace continued with his presentation. He noted that you can also get into trouble with the open meeting law by inadvertently using “serial” communication, which is speaking with one Board Member about an item on the agenda, then talking to another Board Member regarding your prior conversation with the other Board Member and so on; you just had a meeting. City Attorney Wallace urged the Board Members to call him with any question or concerns regarding a case, open meeting laws or ex-parte contact.
City Attorney Wallace discussed meeting notices, agendas and the definition of an executive session. He noted you can not just call executive sessions they have to be properly noticed, just in case someone would like to challenge the session.
Chairman Vangilder questioned what would constitute having an executive session.
City Attorney Wallace stated there are couple reasons this Board would be likely to go into an executive session; one would be to obtain legal advice or if in the consideration of a variance matter or something else there would be materials that needed to be reviewed that would be exempt from public inspection. This would be only if there is a variance where the applicant would not want to disclose any trade secrets etc.; this is very rare. City Attorney Wallace noted the Board does not vote when they are in an executive session.
Member Garcia questioned if the Board will be notified ahead of time if they are going to have an executive session.
City Attorney Wallace replied if any of the Board Members feel there is a need for an executive session then they should call him to discuss the issue. If it is decided that an executive session is necessary then it will be placed on the agenda.
City Attorney Wallace then noted there are no state statues that require you to allow the public to get up and speak at a meeting, but to foster open government and be sure we are hearing the voice of the public we add this to the agenda. The Board can restrict the call to the public by time limits, or to request a group of individuals to pick one representative to come forward to address the Board. He stated an important thing to remember regarding a call to the public is that you can not discuss an issue; you as a Board can only respond to criticism, ask staff to review a matter or ask staff to put the issue on a future agenda. He explained that the reason we can not discuss an issues is because the issue was not noticed or placed on the agenda.
City Attorney Wallace informed the Board that the state has a team that enforces/oversees the open meeting laws and their compliance. This team is known as the “OMLET” (Open Meeting Legal Enforcement Team). He noted if any open meeting law has been violated then the meeting which a case was heard essentially did not happen. Also if this was done intentionally you can be fined and penalized. Again City Attorney Wallace encouraged the Board Members to call his office if they have any questions, concerns or comments.
VII. New Business:
Discussion of and possible adoption of amendments to the Rules of Procedure.
City Attorney Wallace gave the Board Members present a handout of the Rules of Procedures that have been amended. He noted along with the corrections and changes the format is friendlier and easier to read. City Attorney Wallace explained to the Board that they can do a motion to approve at this meeting and the voting will take place at the next meeting or if they would like additional time to review the amendments they can wait until the next meeting to make the motion to approve; it is entirely up to the Board Members.
City Attorney Wallace briefly overviewed each item on the Rules of Procedure. He noted a change to the meeting date and day; the Board will meet quarterly instead of monthly unless there is a case that has been submitted. Also we will meet the second Tuesday of the month instead of the second Monday. He also noted that instead of needing four members to call a special meeting we will only need 3 members if the Chairman is not available to call the special meeting.
City Attorney Wallace then addressed the timeline rules. Our rules currently state we will have a meeting 45 days from submittal of a case but the ordinance states we will hear a case within 30 days of submittal; this has been changed in the rules.
Member Zeibak commented the Boards Rules of Procedure should be consistent with the city ordinances.
City Attorney Wallace stated it does make their jobs easier. He continued to go over the handout. He directed the Board Members to section 5 on page 4 regarding public hearings and noted it has been broken out to applicant, owner and appellant. One item that was added is addressed under item “d” which adds time limits to the appellant and opposition; the Board can add additional time at the meeting if they feel it is warranted.
Chairman Vangilder commented a case that comes before the Board is the last stop for the requestor before proceeding to court, so he feels 30 minutes is an appropriate amount of time.
Member Garcia questioned if the Board at any time can make a motion for a vote.
City Attorney Wallace replied you have the ability to call for a motion when dealing with a public hearing but you need to give everyone their opportunity to finish pleading their case.
Member Badger questioned if a motion was called before the appellant finished would it be grounds for an appeal.
City Attorney Wallace replied “yes”, if this was done prior to their time limit expiration.
Member Garcia questioned if there were X amount of people at the meeting to speak on the issue could the Chair determine the number of people that will be allowed to speak and the time limit.
City Attorney Wallace replied “yes” if each person is saying the same thing the Chair can ask for one spokesperson to come forward an address the Board. He continued with the rules overview and stated that a section has been added regarding the presentation of Evidence which includes a submittal timeline for all parties. City Attorney Wallace also pointed out to the Board Members the addition on the rules regarding “Disqualification for Conflict of Interest” and “Ex Parte Communications”.
Director Miller questioned if there is enough ex parte communication where the majority of the Board recused themselves from participation, what would happen.
City Attorney Wallace replied the City Council will have to be notified; this is why it is very important that members do not violate the ex parte rules.
Member Garcia questioned what should a member do when they are at dinner and other people at the table start discussing a case.
City Attorney Wallace stated the member has to remove himself from the conversation and ask them to change the subject. He also noted the member can inform the others at the table that he will have to disclose to the other Board Members at the public hearing what had been discussed.
City Attorney Wallace continued; he noted “Request for Reconsideration” has been added to the rules. This request is awarded through the Court and must be due to an error by the Board of Adjustment and be requested from the prevailing side.
City Attorney Wallace concluded by informing the Board that the amended Rules of Procedure would require a motion to approve then at the next meeting they can make a motion to vote. To pass the rules it will take 5 affirming votes from the Board Members.
Chairman Vangilder made a motion to approve the amended Rules of Procedure. All Members were in favor.
The vote for the amended Rules of Procedure will be placed on the next meeting agenda for vote.
VIII. Reports by Officers:
No reports by Officers.
Member Garcia noted we did not say the pledge of allegiance at the beginning of the meeting.
Chairman Vangilder asked Member Garcia to lead us in the pledge of allegiance.
IX. Adjournment.
Motion was made and seconded to adjourn the meeting. The meeting adjourned at 7:38 p.m.
Submitted this 27th day of August 2009 by Melanie Podolak, Administrative Assistant to the Casa Grande Board of Adjustment, subject to the Board’s approval.
Approved this ____ day of _________, 2009 by the Casa Grande Board of Adjustment.
Chairman Vangilder
