Three variance applications for four different setback issues won approval from the Gila County Board of Adjustments Feb. 20.
All three cases were similar — the property owner had a structure or proposed structure encroaching on the setbacks required for the site.
But one case stood out.
Scott Buzan, director of the Gila County Community Development Department, and his wife, Michelle, came before the BOA for a variance on their property. Because of his position with the county, special measures were taken to buffer information and advice provided on the matter, according to Homero Vela, assistant county manager, the presenting official of record as the community development office is under his supervision.
Jason Moore, with the Navajo County Attorney’s Office, was brought in to provide any legal advice needed by the board. The community development staff did not make a recommendation on the matter, but many were at the meeting to answer questions.
Vela said the Gila County Attorney’s Office had researched whether there was an option to take the matter off the BOA’s plate and have another entity decide to further buffer accusations of conflict of interest. State law and the county’s own ordinance make variance decisions the responsibility of the Board of Adjustments, he said.
Payson attorney Michael Harper represented neighboring property owners, Dave Owens and Dave West, who were opposed to the variance.
The Buzan property is on North Roper Lane in the Verde Glen subdivision. They requested a variance to permit a six-foot front yard setback where a setback of 20 feet is required.
Michelle Dahlke, a senior planner with Community Development, provided the BOA with information about the Buzan property. It was purchased in 1993 and in 2001 a building permit was issued for the addition of a garage with a second story guest quarters and covered deck. The site plan submitted with the permit application showed it complied with the 20-foot setback. A survey made in 2019 at the Buzans’ request to facilitate the sale of the property showed that the deck structure encroached 14 feet into the 20-foot setback.
Buzan offered additional details. He and his wife brought the property from her parents in 1993 and in 2001 hired local professionals to design and build the garage, guest quarters and deck.
A 2014 survey made for the U.S. Forest Service showed part of the Buzan driveway and a section of their split-rail fence was on forest land. The fence was moved, but a written agreement with Debbie Cress, then district ranger for the Payson district of the Tonto National Forest, allowed the driveway to remain in place, Buzan said.
He said after the 2019 survey showed the structure encroachment he brought the matter to the county’s attention and began efforts to secure a variance.
He said he had relied on the professionals he had hired to make sure the addition met the county’s requirements.
Buzan told the BOA it could grant a variance, according to the county’s ordinance if (not doing so) creates unnecessary hardship and practical difficulties and there are special circumstances.
“We believe our encroachment meets these criteria,” Buzan said.
BOA chair Mickie Nye asked if from 2001 to 2013 the county had any opportunity to alert about the encroachment. Member Brian Dawson asked if they did a survey before they built the addition. Member Mary Lou Myers said in 2001 lots were not surveyed often and the permitting process relied on plats.
Arguing against the variance, Harper told the BOA, “The rules are the rules and they apply to everyone equally. A property owner is responsible for what their contractor and draftsman do. Variances are based on the conditions of the property, not errors.”
He said the encroachment “falls squarely on the shoulders of the Buzans.”
Harper said Roper Lane is a public roadway and has markings that make it possible to show property lines, plus there is a 1994 survey showing the location of the road.
“This is not a situation where the landscape did not provide information (on which to base setbacks),” he said.
Harper told the BOA Buzan’s father-in-law, from whom he and his wife bought the property, is an engineer. He added Buzan has an extensive background regarding codes and enforcement.
“The encroachment existed for years and there was no enforcement of the violation, but there is threatening and enforcement on neighbors. Dave West was forced to get a variance and move a building,” Harper said.
He then read an email from Dave Owens objecting to the variance.
Owens, who has a home on North Roper Lane, wrote, “I am writing this letter to object to the variance ... Reasons for objection:
1) I live within 300 feet to 400 feet of this residence.
2) It is hard for me to believe Mr. Buzan was not aware of his setback problems for many years, he was employed as a building inspector in Gila County and now employed as a director of Planning and Zoning in Gila County.
3) Mr. Buzan’s building inspection department never has given me any leeway on any permit requirements, setback requirements, etc., while constructing our residence two doors down from his residence.
4) Mr. Buzan’s department sent me a letter regarding fines that may be levied against me for failing to meet his department’s building requirements as he has (sent to) many in the neighborhood over the past many years.
5) If I was allowed to build without setbacks, as he has, I would have been able to build a much larger residence for my seven children, thus increasing the overall value, by increasing under roof square footage. The delta is approximately $150 a square foot versus bare unbuildable land, as his department required during my planning and build process. Thus, my build value would have increased by $200,000 to $500,000. Thus, he was unfairly given this advantage by being the one to enforce these restrictions as a director and building inspector within Gila County.
6) His residency sits way too close to our public road, which he has also illegally blocked with a gate.
7) He needs to abide by the same rules and regulations as we have and he has failed to enforce these same mandates on himself thus, I believe, unjustly enriching himself due to his position as a county director and building inspector.
8) Mr. Buzan also has landscaped, built a driveway and made other improvements on national forest land adjacent to his property to facilitate ingress and egress to the very buildings he has setback issues. Without such trespass he would not be able to access his properties with a vehicle.
Harper expanded on the gate and several other concerns about the Buzan property, including a septic pit, which the attorney called a cesspool. “These are not simple mistakes,” Harper said.
He argued variances are a way to accommodate conditions of the land, not mistakes by people. He also suggested an alternate solution to a variance for the setback, shift the roadway 15 feet away from the Buzan property.
Harper told the BOA the lack of a written report on the matter from the community development staff conflicted with the board’s rules.
“If it were anyone else seeking this, it would not be granted,” he said.
Buzan responded to Harper, repeating much of what he said in his initial remarks, but also addressed the septic pit. “The septic pit is not a cesspool. It was allowed by the ADEQ at the time, but it is not allowed now.”
Nye asked Moore if the BOA had the right to hear the case and was told, “State law gives the authority. Buzan has the same right to apply for a variance as any other citizen. Because you’re the only body available to hear it, you have to hear it.”
Nye reminded the BOA and audience the matter at hand was only the setback issue, allowing the Buzans to have a six-foot setback instead of the required 20 feet. Myers said the county’s code allows for open decks to encroach on setbacks.
“We can do anything we want. We can table it,” Nye said.
“Variances are based on hardship,” Myers said.
The Buzan request for the variance was approved unanimously.
This might not be the end of the issue though. Checking with Jacque Sanders, deputy manager for Gila County, while the BOA is the last to make a variance ruling, the ordinance states, “Any person aggrieved in any manner by an action of a board of adjustment may appeal within thirty days to the Superior Court ...”
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