Board of Adjustment

BOARD OF ADJUSTMENT Appeal Code Enforcement Violation June 28, 2018 City Annex Building, Council Chambers 12:00 p.m. 680 Park Avenue 3 Member Panel: Nathan Kennedy, James Wyatt, Kristi Brower Staff Present: Brad Cramer, Director, Naysha Foster, Recorder, Ann Peterson, Cherise Frie, Michelle Clark, Michael Kirkham, City Assistant Attorney Also Present: George Price, appellant. Call to Order: The meeting was called to order at 12:03 p.m. by James Wyatt. Procedure: James chaired the meeting. Brad explained that this is the first meeting of this type and went over the meeting procedure. He went over section 5-8-15 and explained that the City will go some things and then the appellant will have an opportunity speak. The BOA will then have an opportunity to discuss whether or not the City interpreted the code correctly or not. Minutes: None. Meeting: Brad went over 3 definitions of the Nuisance Ordinance and what violations were specifically being appealed. The first definition was “junk”, then “waste,” and finally “litter” (See Power Point/Exhibit A). Brad went on to explain how Idaho Code defines as reasonable person as it is mentioned in the definition of waste. A reasonable person is someone that is not an expert. Brad explained section 5-8-11 Accumulation of Litter Upon Private Property and indicated that section (A) of the code does not apply and section (B) does not apply to Mr. Price’s business. Brad went over pictures and explained what the City determined junk or waste. He also indicated that the Code Enforcement department received a complaint. The Code Enforcement Officer determined that the parts on the property are junk. The second issue is the derby cars. They are not licensed and assumed to be inoperable. The business is to buy, fix and sale vehicles, derby cars are not part of this business. The derby cars are not currently on the property, however Mr. Price would like to determine if they are allowed to be on the property or not. The tires are not a dispute, Mr. Price has agreed to clean the tires up. Brad continued to show pictures and go over dates. Mr. Price claims that the parts are valuable, however they have been in the elements for years and are rusty, one would assume they are junk and/or waste. James asked for clarification of what is in dispute, the derby cars and the parts? Brad answered yes. Mr. Price stated that the mattress and tires are cleaned up, He explained that there are 3 or 4 derby cars that generally run depending on races. Each year he has to explain to the City that this is part of his business and he would like a definitive answer as to whether or not the derby cars are allowed to be there. 2 years ago he received violations for weeds and the derby cars. This matter went to court and the judge determined that the uses of his business were ok to be in that zone. He indicated that he has a salvage and dealers license and can determine which cars can go back on the road. After court he got rid of the cars that were creating the issues. The parts are for sale. James asked Mr. Price to clarify his business. Mr. Price stated that his business manufactured military vehicles and equipment, in conjunction with buying, fixing and selling cars. James asked if the parts in the yard were valuable, why are they not protected from BOA Minutes 6-28-18 Appeal Page 1 of 3  the elements? Mr. Price indicated that you can work around the rust. He went on to explain that he was not found guilty of the car parts 2 years ago when this issue went to court, then a year later it was an issue again. James commented that the derby cars were a different issue. Mr. Price’s response was that he thought the derby car issue was put to bed. James stated that the derby cars are more of a recreational vehicle and are not street legal. Nathan asked Mr. Price about screening the property to prevent complaints. Mr. Price said that he offered to put up a fence, but was told by the City to leave open due to the cell tower. Brad indicated that Mr. Price was going to install slats to the existing chain link fence, however those are not sight obscuring and at the time there were no fencing requirements. Today the ordinance requires screening. Brad also, explained that putting in a fence now does not resolve the violation, it just makes it had to verify there is a violation. James mentioned that part of the business is a salvage yard. Brad indicated that a salvage yard is not an allowed use in the current or previous zone. There was additional discussion regarding the derby cars regarding the use of the derby cars and whether they are functional or non-functional and whether or not they are considered recreational or not. Mr. Price stated that the weeds would be taken care of. And that he is the person licensed by the state to determine what is junk or waste. Mike Kirkham explained that the states definition of a reasonable person is a non-expert or someone with average intelligence of any other person. Brad added that the state is subject to local zoning codes. Nathan said that the average person would consider this junk or waste. Kristi asked Mr. Price if he advertised the parts for sale. He answered no, car people just find out. Kristi stated that if they are not advertised as being for sale the average person would consider them junk, especially with the weeds growing through and around them. James added that if the yard were clean and tightly this would not be an issue. Mike went over the items the board was to consider and determine. Interpret the ordinance and consider the facts, does he meet the requirements of the ordinance or not? James closed the hearing. He then stated that there were two separate items therefore two separate motions needed to be made. First issue is the derby cars and the second is the car parts. Car Parts: The discussion among the board regarding the car parts was that seeing them in the weeds with the rust, to a reasonable person they would be junk. Nathan made a motion that the car parts meet the definition of junk or waste. Kristi seconded the motion. The Motion carried with a two to one vote with Kristi and Nathan voting that the car parts are junk and James voting that they are not junk. Derby Car: James thinks of the derby cars as recreational vehicles. He used Action Motor sports as an example. He explained that they have a lot of recreational vehicles in public view that are not in operation. Kristi added that snowmobiles are found sitting all summer. Nathan feels the derby cars are junk because they do not appear to be operable and they could be kept in storage when not in use. Nathan made a motion that the derby cars meet the definition of junk. Kristi seconded the motion. The motion failed with a two to one vote. Nathan voting that the derby cars are junk, Kristi and James voting that they are not junk. Motion denied. Derby cars are not considered junk. There was additional discussion that a time restraint could be placed on the time the derby cars were inoperable, however it was determined that the decision had already been made. Also, that putting a time restraint was a quasi-judicial case instead of interpreting the ordinance which is legislative. Adjourn: James adjourned the meeting at 1:15 p.m. BOA Minutes 6-28-18 Appeal Page 3 of 3 Respectfully Submitted, Naysha Foster, Recording Secretary BOA Minutes 6-28-18 Appeal Page 3 of 3