BY LINDA BENTLEY | NOVEMBER 24, 2010
Board of adjustment grants variance, relief from litigious neighbor
‘The plausibility of this being reconcilable is a fallacy’
With Board of adjustment members George Ross and Brian Sirower, who recused himself, absent, Chairman Fred Mueller (c) and members Richard Pello (l) and Adam White voted unanimously in favor of granting a variance to M&I Bank to allow for increased lot disturbance. Photos by Linda Bentley
CAVE CREEK – Attorney Michael Curley appealed to the board of adjustment on Nov. 16, on behalf of his client M&I Bank, which had taken over a property west of School House Road along the Skyline Drive alignment from the previous owner, for a variance allowing for an increase in lot disturbance from 25 percent to 39.8 percent.
Curley, who said he had recently reviewed “a voluminous amount of paperwork involved in these six lots,” held up an aerial photo and explained the 15 percent differential was primarily due to an additional roadway.
He said, “In 2005, there was some sort of dispute as to whether access was going to be available. The new access triggers what’s before you today.”
Representing M&I Bank, Attorney Michael Curley said he had recently reviewed “a voluminous amount of paperwork” pertaining to this case and held up an aerial photo to explain the 15 percent variance request was primarily due to an additional roadway.
Curley continued, “There is no access available elsewhere and the original access was no longer available after the home was built. They had to provide new access.”
He said there was the possibility of “revegging” more of the property to reduce the amount of disturbance.
With a footprint of 4,700 square feet, Curley said the residence encompasses less than 24 percent lot coverage and indicated it would be absurd to “tear the house down.”
During public comment, Arek Fressadi said, “This is not a land use issue. It is a contract issue.”
Fressadi stated Michael Golec, the previous owner of the property, sold a lot the day before signing the contract and said, “The question is: Is the agreement valid?”
According to Fressadi, town ordinance requires the legal and physical access to be the same.
He said, “We are all involved in a reciprocal driveway agreement,” which he said includes a utility easement servicing three lots.
Fressadi said, “As Mr. Curley accurately stated the house needs to be torn down.”
He also complained the new driveway did not meet code and called it a “nonconforming structure.”
Fressadi said he took the matter through the special action process in court to show how egregious Planning Director Ian Cordwell and Board of Adjustment Vice Chair George Ross’ actions were in January 2010.
He said, “I object to the variance for $3 million worth of reasons. This is a contract dispute. I own property directly to the north. This matter has been in dispute for seven years and has spawned seven lawsuits,” and rattled off the case numbers of five.
“An agreement cannot be done by variance,” said Fressadi, who added, “Clearly this hardship is self-imposed.”
He went on to say, “This is not just a simple driveway matter,” and not a land use issue to be resolved by the board of adjustment.”
Curley returned to the podium with some notes and said, “It is absolutely in our best interest to separate our interests. We cannot sit and have a gun to our head and be held hostage to another property owner.”
He also said he has found two documents amongst the paperwork he reviewed, signed by Fressadi, revoking the driveway easement.
Golec then approached the podium and said, “I am the actual predecessor. Basically, Mr. Fressadi took my driveway and blocked it … with a stone wall. He wouldn’t let us use the driveway and then won’t let us have a new driveway. He wants it both ways.”
Board member Adam White stated, “As I understand it, the access agreement has been revoked.” He then asked Fressadi, “What was the intent of revoking the agreement?”
Fressadi responded, “To clear up the confusion over the agreement since 2003,” adding, “I’m willing to come to a resolution.”
He accused the town of exacerbating the issue and claimed they should have halted construction back in 2005.
Curley returned to the podium to respond, “How can Mr. Fressadi block physical access and then revoke the agreement? The plausibility of this being reconcilable is a fallacy.”
Fressadi then told the board, “You’re being asked to do something that’s being addressed someplace else (court). The fact that I revoked this agreement was predicated on reaching a settlement. That didn’t happen.” He said, “You either pay me or you pay someone else.”
David Solomon, who requested and was granted a variance last year for an adjacent property he had taken over as the lender, also spoke.
He identified with the applicant and said, “They’re trying to make the best of a bad situation. A variance is decided on the merits and we support their efforts to obtain a variance.”
Solomon said, “We have no desire to be in any agreement whatsoever with Mr. Fressadi. We do not support a common driveway with Mr. Fressadi.”
Board member Richard Pello stated, “We’re here to decide an issue clouded by other issues brought up by Mr. Fressadi.”
Per Chairman Fred Mueller’s request, Cordwell read the criteria for granting a variance.
Pello’s motion to grant the variance, with a stipulation that the applicant work with staff on revegetation, passed unanimously, with Ross and member Brian Sirower, who recused himself, absent.
Before adjourning, Mueller announced Ross was resigning from the board and wanted to publicly acknowledge his numerous years of service and valuable contributions.
