OV board denies council candidate's appeal

Council candidate and former county planner Barry Gillaspie lost a Jan. 27 appeal to the Oro Valley Board of Adjustment on a town zoning decision he believes violated special rules that protect the Oracle Road-Pusch Ridge scenic corridor.

The board voted 3-1 to uphold the town's decision, in part because Gillaspie didn't address how he personally was harmed by it.

"The standard the Board of Adjustment was instructed to use was how I was aggrieved. That's an impossible standard," a stunned Gillaspie said after the ruling. "I clearly have standing. I live right in back of the development. I'm within the 300-foot notification area. I'm harmed because they aren't protecting the rights of citizens" by upholding the zoning code. The town charges $600 for an appeal to the board, a quasi-judicial body.

In his appeal to the board, Gillaspie challenged the interpretation by town Zoning Administrator Bryant Nodine, a decision that facilitates plans for an Eckerd's drugstore on a sloping 8.8-acre parcel of desert at the northeast corner of Oracle and Hardy roads.

"We have always known that this parcel would be developed," said Gillaspie, a former principal planner with Pima County and a member for eight years of the town's Planning and Zoning Commission. "But if we can't rely on the town to meet its own code, it's just going to cause more controversy and acrimony between the town and its residents."

At issue is the Oracle Road Scenic Corridor Overlay District, a piece of zoning intended to protect mountain views along Oracle Road. On parcels of 5 acres or more, the special zoning requires integrated, multiuse development with principal structures of at least 50,000 square feet to prevent service stations, fast food restaurants, convenience stores or other highway uses.

"Creating that kind of mass would only increase the visual impact," Nodine told the board. As planned, the smaller,12,000-square foot Eckerd's is the principal structure in a two-phase development to eventually include three restaurants and several small office or retail buildings.

Just before the hearing, Board of Adjustment Chairman Bill Adler recused himself from the proceedings on the advice of town attorney Mark Langlitz. Adler denied that there was anything improper about his "procedural" conversations with Gillaspie, but said he would step down to avoid the appearance of partiality.

After the ruling, Adler called the board's decision an "embarrassment" and possibly grounds for further legal action.

"Barry's standing as an applicant was determined when his application was accepted for hearing," he said. "I don't believe the board has the power or the duty to determine whether an applicant has standing or has properly filed. Whether or not he has standing is not part of the Board of Adjustment's scope, that's an administrative decision.

"Gillaspie shouldn't have been blindsided by that. It should have been stated publicly so that the applicant understands this is something that needs to be addressed," Adler said.

The hearing itself was initially delayed some 30 or 40 minutes while the board met privately in executive session with Langlitz.

Gillapsie was a member of the Oro Valley Planning and Zoning Commission in 1994 when the Oracle Road Scenic Corridor Overlay District zoning was developed.

"I remember it better than anyone on staff because I was there," he said. "Bryant was right in that this development is different than what was probably first thought of - a master structure in a commercial development. If you were going to put up a Fry's, it had to be part of a master plan" before ancillary buildings, or pads, could be built at the site.

"The language was designed to encourage master planning and sensitive design on larger commercial sites," he said. "I won't deny that this ordinance may not have been in my best interest or anybody's best interest," but Gillaspie said he decided to fight the town's interpretation as a matter of principal.

"I just don't think the town should give legal authority away to people who aren't elected," he said. "They have given the zoning administrator super authority, that's what I was challenging. If you don't like the zoning code, you need to change it through due process, not give that authority away."

In a later phone interview, town attorney Langlitz said, "If the language was as broad as he is suggesting, we would be removing any economically viable use, which means we would have to buy that land. You have to look at the intent. Mr. Gillapsie would rather see a 50,000-square foot building? That's not what ORSCOD is about."

In his presentation to the board, Gillaspie noted that there were other options for the site, such as medical facilities or office complexes, which would avoid nightlights and traffic and other problems for neighbors.

Vice Chairman Cindy Lewis seized on the issue of how the applicant was personally aggrieved by the zoning interpretation.

"You've never clearly explained how you are aggrieved," she said. "How are you special?"

"It's a matter of principle," he said. "It's a violation of the Oracle Road Scenic Corridor Overlay District."

"Do you have special circumstances that make you different from anyone else?" she pressed.

"I've already talked about the traffic, drive-through and convenience uses. That's all part of the record," he replied.

The board then asked Nodine to elaborate on his interpretation.

"This site was not anticipated by ORSCOD, and it's being developed at less than half of what it could be developed at," he said. "The plan does not fit the form (required by the overlay district) but does meet the intent."

Lewis and Roca attorney Keri Silvyn, representing the developer, Centres, Inc. said the company had already invested significant resources to develop the site and would be damaged if the board upheld Gillaspie's appeal.

"We believe the town's interpretation to be correct," Silvyn said. "We cannot create 50,000 square feet of retail space that would be successful on this site. We believe this is a superior development with less impact on the neighbors than the (overlay district) would require."

Some half dozen members of the audience spoke in support of Gillaspie, including council candidates Conny Culver and Helen Dankwerth and town founder Jim Kriegh.

"To say it's not a highway use is ridiculous. It's already been approved for two drive-through windows," said town resident Carl Kuehn. "If Mr. Nodine can decide, we might as well take the zoning code and shred it."

Board member Bart Schannep asked if it was the determination of staff that a 50,000-square foot building would not fit on the property.

"Placing a 50,000-square foot building on that site is contrary to good planning and the goals of ORSCOD," answered Nodine.

Lewis moved to uphold the town's interpretation. "The applicant is not aggrieved and the application does not have merit," she said. Chairman Colleen Kessler and members Lewis and Schannep voted to uphold the staff decision. New member Greg Marlar cast the single no vote.

The Eckerd's development plan comes before the Oro Valley Town Council Feb. 4.