Title
Consideration of Citizen Petition by Tristan Schaub
Description
This report provides the City Council with information in response to the citizen petition submitted by Mr. Tristan Schaub at the Jan. 24, 2024, Formal Meeting.
Report
Summary
The attached document (Attachment A) was submitted to the City Council to request that Council act as follows:1) stop all Board of Adjustment (BOA) actions and decisions until immediate mandatory training on policies and procedures is provided to all BOA members; 2) institute a formal on-board training program for all new members to teach them about all BOA policies and procedures and assign a BOA staff mentor for the first six months; 3) institute mandatory annual refresher training for all existing BOA members and make it open to the public; 4) mandate that decisions by the BOA must address Section 307 of the Zoning Ordinance which includes the 4-tests for a variance and 2-factors for use permit criteria and that the decisions must be in the proper procedural form; and 5) when overturning a Zoning Hearing Officer’s (ZHO) decision, the member presenting the motion must clearly state why (based on Section 307 criteria) the ZHO decided incorrectly.
After reviewing each request, staff recommends the following:
1) Although this request qualifies as a valid citizen petition under Chapter IV, Section 22 of the Phoenix City Charter, staff recommends that City Council take no action on request 1 because halting all BOA proceedings pending further training may subject the City to legal exposure because of due process requirements for those applicants and appellants who anticipate having their cases heard expeditiously in the near term. The current Board is adequately trained and more than competent to hear all pending cases. Halting Board proceedings is unnecessary and imposes undue burdens on applicants and appellants.
2) Although this request qualifies as a valid citizen petition under Chapter IV, Section 22 of the Phoenix City Charter, staff recommends that the City Council take no action on request 2 because the City already has a formal on-boarding process in place. Currently, the Zoning Administrator meets with all new board members for an hour to discuss their legal obligations vis-à-vis their service on the board. Moreover, there is no need to assign a staff mentor as Board members are routinely welcomed and encouraged to discuss when appropriate any pending cases or related issues with the Zoning Administrator or legal counsel if they have any questions.
3) Although this request qualifies as a valid citizen petition under Chapter IV, Section 22 of the Phoenix City Charter, staff recommends that the City Council take no action on request 3 because refresher training for all current BOA members will be conducted as part of the March 7, 2024, BOA hearing which is open to the public. The City staff will also be developing and implementing mandatory annual refresher training.
4) The City Council cannot take any action on request 4 because it seeks to have City Council implement a mandate that goes beyond the scope of what is statutorily required by Arizona Revised Statute 9-462.06 in BOA decisions. The BOA is not legally required to make explicit findings in its cases, although they are strongly encouraged to do so. Currently, the BOA follows the “Board of Adjustment Hearing Process” when reviewing a use permit or variance appeal. The "Board of Adjustment Hearing Process" establishes the procedural requirements for submitting written evidence before the hearing, testifying during the Board meeting, and conducting other Board business. Failure to follow the required substantive and procedural requirements is a basis for the Superior Court to reverse or remand a BOA decision. There has never been a court finding that the BOA failed to follow its procedures in making a decision. In fact, a review of all cases dating back to 2012 involving the application of the use permit or variance test indicate that the court has never reversed or remanded a BOA’s use permit or variance decision for failure to follow its procedures.
5) The City Council similarly cannot take any action on request 5 because it goes beyond the statutory requirements cited above of what should be included in board of adjustment decisions. Staff routinely encourages BOA members to clearly articulate the basis for any legal action and routinely stress to the Board the importance of making findings particularly when overturning a ZHO’s ruling or decision. Staff will continue to emphasize the importance of this point in the future mandatory annual refresher trainings.
Department
Responsible Department
This item is submitted by Deputy City Manager Alan Stephenson and the Planning and Development Department.