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TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: DIRECTOR OF PLANNING, BUILDING AND CODE ENFORCEMENT
DATE: MARCH 18, 2003
SUBJECT: REVIEW OF LARGE DOMESTIC ANIMAL NONCONFORMITY STATEMENT NO. 26 [SUTTON, 16 PEPPERTREE DRIVE]
Staff Coordinator: Kit Fox, AICP, Senior Planner
Determine the maximum number of large domestic animals that may be "grandfathered" for keeping and/or boarding on the properties at 16 Peppertree Drive.
On January 21, 2003, the City Council received the Staff report regarding Nonconformity Statement No. 26 (see attached copy) and heard testimony from Robert Maxwell and Joe Deeble. City Council discussion focused on the two critical dates in Municipal Code Section 17.46.080(C) for the "grandfathering" of boarding activity (July 1, 1975 and February 1, 1997), and on the availability of evidence—in the City’s records or from other sources—that would support the numbers of horses kept and/or boarded on the Suttons’ properties on these critical dates. However, since Mr. Sutton was unable to attend the meeting, the matter was continued to February 18, 2003 at his request.
In response to a suggestion from Mayor Stern, Staff’s sent a letter to the Suttons on October 31, 2002, requesting 1) contact information regarding the owners of the boarded horses listed on the Suttons’ nonconformity statement; and 2) any other available information about past boarding and keeping of horses on the property. On February 11, 2003, Staff finally received the additional information we had been requested on October 31, 2002. The Suttons have provided mailing addresses for the four horse owners listed in the nonconformity statement, and Staff sent letters to these parties, asking for information about the boarding of their horses to independently verify the number of boarded animals present on February 1, 1997. By March 5, 2003, Staff received responses to three of these letters and the fourth was returned by the Post Office. Therefore, Staff is now prepared to present all of the available evidence related to Nonconformity Statement No. 26.
In his request for continuance on January 21, 2003, Mr. Sutton included a post-script stating that the additional information that Staff requested on October 31, 2002 (on behalf of Mayor Stern) would be "submitted for review as soon as possible." On Tuesday, February 11, 2003, Mr. Sutton provided a packet of additional information about horsekeeping and boarding activity on the subject properties. The Suttons have previously claimed that five to twelve horses were boarded on the property in July 1975, and ten horses (seven of them boarded) were kept on the property in February 1997. The Suttons now state that they wish to "grandfather" twelve (12) horses, rather than the ten (10) horses listed in their nonconformity statement.
As noted above, the Suttons provided mailing addresses for the four parties listed as having boarded horses on the Suttons’ property on February 1, 1997. A summary of the responses to Staff’s letters to these parties is as follows:
Based upon these responses, it appears that there could have been as many as seven (7) horses boarded on the Suttons’ property on February 1, 1997. Copies of the actual responses are attached to this report.
With respect to additional information about past horse boarding and keeping, the Suttons have provided copies of several letters dating from the late 1960’s through 2002. The late 1960’s letters from neighbors and the Portuguese Bend Community Association are related to the construction of a stable on the 3.46-acre parcel, but provide no information about the number of horses purportedly kept and/or boarded at that time. Similarly, the mid-1970’s letters related to Special Animal Permit No. 6 provide no information about numbers of horses then present. The later letters (two from 1997, one from 2002 and two from 2003) list conflicting information regarding the number of horses kept, some stating that no more than ten (10) horses were kept on the property at any time, and others stating that there were twelve (12) to fourteen (14) horses kept on the property. With the exception of the responses to Staff’s inquiries discussed above, none of these letters provide specific information about the number of horses present on February 1, 1997. Since there appears to be no consistent evidence supporting the Sutton’s new request to "grandfather" twelve (12) horses, Staff recommends that the City Council only consider "grandfathering" a maximum of ten (10) horses, based upon the previous nonconformity statement.
At the January 21, 2003 meeting, the City Council noted that a letter from Ray Green (dated January 5, 1999) referenced an aerial photograph of the Suttons’ property, but this photo was not included in the Staff report. A copy of this photo is attached to this report. Unfortunately, the "original" photo from which this photocopy was taken was itself a photocopy, so Staff believes that it does not conclusively prove (or disprove) that the Suttons were boarding horses on the subject property in 1975. Staff has also included a copy of Robert Maxwell’s comments and photographs from the January 21, 2003 City Council meeting.
As suggested by Councilmember McTaggart, Staff has reviewed the Planning Commission and City Council Minutes from the numerous meetings at which the City’s equestrian regulations were discussed between 1994 and 1997. Staff found several instances (three Planning Commission meetings and seven City Council meetings) where Mr. Sutton spoke and/or where other speakers mentioned his property, as reflected in the Minutes. Staff also reviewed any available public correspondence related to these meetings and specifically to Mr. Sutton’s properties. Unfortunately, none of these sources provided clear and definitive statements regarding the number of horses kept and/or boarded on the subject properties, either on July 1, 1975 or on February 1, 1997.
As Staff discussed at the January 21, 2003 meeting, the critical issues are the number of horses that were kept and/or legally boarded on the site, both on July 1, 1975 and February 1, 1997. In order to qualify for the pre-1975 boarding exemption—which could allow the boarding of more than five (5) horses to continue in perpetuity—the City Council must find that the Suttons owned the property on July 1, 1975 and were legally boarding five (5) or more horses at that time. Otherwise, the boarding activity could not be "grandfathered" in perpetuity, and would be subject to the sunset provisions in the Municipal Code. These sunset provisions would be triggered on February 1, 2007 or upon sale of transfer of the subject property, whichever occurs later, at which time the number of boarded horses would need to be reduced to no more than four (4). The flowchart below illustrates the alternative scenarios for making a final determination regarding Nonconformity Statement No. 26.
Question 1: Were five (5) or more horses legally boarded on the subject properties on July 1, 1975?
Available Evidence Related to Question 1:
Question 2: Were ten (10) horses kept (seven (7) of them boarded) on the subject properties on February 1, 1997?
Available Evidence Related to Question 2:
The Suttons have provided evidence of their ownership of the property on July 1, 1975 in the form of grant deeds, but the evidence of the number of horses boarded at that time is still sketchy. The persons who have disputed Staff’s determination in this matter assert that the number of horses listed and described in the Suttons’ statement are exaggerated and should not be used as a basis for determining the number of animals "grandfathered" for the property. If the City Council accepts this argument and is not satisfied that sufficient evidence has been presented to support the Suttons’ claim under the pre-1975 boarding exemption, then the City Council might "grandfather" the property for the keeping and/or boarding of fewer horses, subject to the sunset provisions in Municipal Code Section 17.46.080(C)(1). It is important to note, however, that up to four horses could still be kept and/or boarded by right on the Suttons’ combined properties under the current City Code.
In addition to the evidence regarding the number of horses present on the Suttons’ property on key dates, Staff has also compiled information from the City’s files regarding previous code enforcement issues with the property, as requested by Councilmember McTaggart. This information is contained in the attachments to the January 21, 2003 Staff report. It is important to note, however, that pursuant to the Development Code, this information is not strictly relevant to the issue of the nonconformity statement, in that it provides little or no information about the number of horses kept and/or boarded on the Suttons’ property on the key dates discussed above.
Staff is seeking direction from the City Council on the following issues with respect to Nonconformity Statement No. 26:
The subject matter of this item will have no fiscal impact upon the City, regardless of the action taken.
The alternatives available for the City Council’s consideration include:
Joel Rojas, AICP, Director of Planning, Building and Code Enforcement
Les Evans, City Manager
Responses to Staff inquiries regarding 1997 boarding activity
Additional information submitted by the Suttons on February 11 and February 21, 2003
Mr. Sutton’s request for continuance (dated January 21, 2003)
Letter to Mr. Sutton regarding submittal of additional information (dated January 28, 2003)
Photo referenced in letter from Ray Green (dated January 5, 1999)
Robert Maxwell’s comments (as submitted on January 21, 2003 and February 18, 2003)
Municipal Code Section 17.46.080 "Nonconformities"
City Council Staff report of January 21, 2003 (with attachments)