The Sedona Board of Adjustment unanimously upheld a decision by city staff in regard to a longtime business that it determined has been operating in violation of city code.

During the five-hour hearing on Friday, June 3, the board said the issuance of two notices of violations by Community Development Director Audree Juhlin late last year to the Robson family — owners of Son Silver West — were justified. At press time, it was not known if the Robsons will appeal the decision to the Coconino County Superior Court.

In 1992, the Robsons were granted a conditional use permit for their property located on State Route 179. Because it was operating as a commercial business on a single-family residential property prior to the city’s incorporation in 1988, it is considered grandfathered as a legal nonconforming use. However, when a nonconforming use occupies a building, expanding the use into additional buildings or land areas is prohibited, a city document states.

The alleged violations on the property include warehousing, manufacturing, shipping/receiving and employee parking, which are not in compliance with the Sedona Land Development Code.

“The primary purpose of code enforcement is to bring to the attention of residential and business owners, code violations that could have a negative impact on their property, neighborhood and community as a whole,” Juhlin said of the board’s decision. “This helps maintain Sedona’s quality of life and ensures a level playing field for all. I am encouraged by the outcome of the appeal hearing and the apparent willingness on the part of the business owners to work with the city to achieve compliance.”

At the crux of the discussion is whether then-Community Development Director John O’Brien “purported to exercise legal authority” to approve changes to the 1992 CUP consistent with conditions at Son Silver West today. The Robsons have maintained that they felt O’Brien had in essence given his stamp of approval in that any additions that had been made were within the parameters of the CUP and were not in violation of the land development code. Based on O’Brien’s decision, the family made a substantial financial investment in art inventory [nearly $800,000 worth in 2013 and 2014 combined] and expanded off-site warehouse facilities to store it.

“I have reviewed the history of violations set forth in the staff report prepared by Director Juhlin in advance of this hearing,” SSW co-owner Linda Robson said in a prepared statement. “Except for the outstanding notice of violations issued on Nov. 10, 2015, all of the violations listed in the staff report were resolved. In the past when we received correspondence from the city regarding violations on our property, the violations were always resolved amicably.”

She said that in the past when they received a notice of violation, they worked with the city to resolve the issue and came into compliance or proved why they were not in violation of city code. She said it was also their understanding that the previous community development directors had the authority to grant site plans and building permits.

David Richert, a former city of Phoenix planning director, was hired by the Robsons as an expert and said his clients believed that they were in compliance based upon an email sent to them by O’Brien.

“It’s my conclusion that when Mr. O’Brien left, he thought that everything was in accord, the property was in full compliance and the responsibilities of the city had been met at that point,” he said.

In a letter to the Robsons dated Dec. 21, 2011, O’Brien references a small coffee hut that was unpermitted but had been closed down at that point on the property. He also discussed a shade structure behind the former coffee shop. He asked that the Robsons provide a site plan of all their buildings and exterior photographs of all 11 buildings on the property. Nothing else is referenced in the letter, including the 1992 CUP.

“This documentation [site plan and photos] will establish what you’re allowed to have at Son Silver West at this time and will give us a historical record of the allowable uses on your property,” O’Brien wrote. “Then, from this point forward, there won’t be a question with what is allowed and what is not allowed.”

In a sworn affidavit from O’Brien dated April 28, he discussed his meetings with the Robsons and concluded by stating, “I did not conduct an inspection related to any other aspects of the 1992 Conditional Use Permit. I did not render a decision or make a determination that in December 2011 the property was in complete compliance with the 1992 Conditional Use Permit other than offer a solution to document existing structures on the property.”

He then added, “I did not have the authority as the Director of Community Development, nor did I take any action to approve new uses, the expansion of non-conforming uses or substantial modifications to the approved site plan and conditions of approval as set for under the 1992 Conditional Use Permit.”

The 1992 CUP allowed for the following at Son Silver West:

• 2,250 square feet of retail space in enclosed buildings [now at 5,600 square feet]
• 5,000 square feet of outside retail display area [now at 16,000 square feet]
• 1,950-square-foot single-family dwelling
• 1,300-square-foot pottery shop with kiln
• 590 square feet of storage space
• 750-square-foot workshop
• Sculpture
• Two free-standing signs
• Building coverage at approximately 17 percent
• Parking located between gallery and Highway 179. [This was later modified to the south-side of the property to address State Route 179 improvements].

“Staff has determined that Son Silver West has expanded beyond this scope and is conducting business activity in violation [of the CUP], single-family zoning regulations, and nonconforming use restrictions,” Juhlin wrote in her 2015 report. “In addition to the significant expansion of the retail operation, the expansion also includes the use of three nearby single-family residential properties also zoned residential. As explained in the past, the existing zoning for these single-family residential lots does not allow for commercial uses.”

Following the hearing, City Attorney Robert Pickels said he felt things went well and that each side was given an opportunity to present their respective case.

“I was pleased with the process provided by the board and was particularly encouraged by Son Silver West’s pledge to work with city staff toward an amicable resolution of the existing violations,” he said. “I think that the city values the Son Silver West presence in our community. We simply want to ensure that the use of their property is consistent with and compatible with the area in which the business lies.

“While both the city and Son Silver West have other legal options that be could pursued, we certainly hope that they will take advantage of this opportunity to find an appropriate solution that is in everyone’s best interest.”