A Bisbee woman waited too long to appeal some decisions by city officials which allowed her neighbor to demolish an old house and build a new one in its place, a Cochise County judge ruled Friday.
Helen Ingram owns a house in Bisbee that sits less than 70 feet from a property line shared with Jon Sky in a neighborhood known as Old Bisbee. She initiated legal action in January 2019 concerning Sky’s attempt to add a second level to his house in 2018.
The attempt failed and Sky built a taller house in its place.
On March 20, Judge Timothy Dickerson of the Cochise County Superior Court dismissed all but one of Ingram’s challenges to Bisbee’s Board of Adjustment (BOA) which hears citizen complaints about decisions made by the city’s Design Review Board. The BOA is the final step in appealing city zoning decisions before legal action can be filed.
Court records show Sky obtained three permits from the city between April and June 2018 to cleanup and remodel a house on his property. The permits involved adding a second floor to the existing house and included approvals by the design board for the height, size, and design of the proposed addition.
However, as Sky worked on the remodel project he discovered the condition of the existing structure was inadequate for the changes he wanted to make. With the knowledge of Joe Ward, the city’s building inspector, Sky demolished the existing house and began to build a new one.
He did not apply for any new city permits nor did he ask the review board to approve plans for an entirely new structure.
In August 2018, Ingram and her attorney exchanged emails with Paul Esparza, the city’s Zoning Administrator, about whether Sky’s actions were in accordance to the permits. Esparza was identified in a May 2018 public notice as the city’s point of contact regarding Sky’s application.
On Aug. 21, 2018, Esparza responded by email to Ingram’s questions and described Sky’s efforts as being “consistent with the approved plans.”
Then on Sept. 5, 2018, the design board met again to consider a new request by Sky to revise the placement of some windows and reduce the building set back on two sides of the property line. A few weeks later Ingram filed a multi-point appeal with the Board of Adjustment, which denied all of her claims on Jan. 30, 2019.
By then, Sky was living in the new house.
Ingram later petitioned to the superior court to review how the City of Bisbee handled the Sky matter, but Dickerson ruled last week that she failed to comply with city code except for a challenge to the design board’s Sept. 5, 2018 action.
“The court finds that it was clear that Mr. Esparza was speaking on behalf of the City,” Dickerson noted, adding that the employee’s Aug. 21, 2018 email was “a written decision by the Zoning Administrator” which put forth that the city “was not going to stop the construction” or require Sky to make changes at that point.
As such, it was the employee’s statement, and not a vote by a city board or commission, which started Ingram’s 30-day appeal clock with the Board of Adjustment, the judge ruled. Dickerson also pointed out an earlier appeal may have changed what happened with Sky’s house.
“The BOA had the authority to hear Ingram’s objections and an appeal to the BOA would have placed construction on hold,” he noted.
Dickerson’s ruling, however, leaves intact Ingram’s challenge to the design board’s September 2018 decision, which was timely appealed but denied by the BOA. That issue can move forward to trial, although no trial date has been set.
The ruling also noted there remains a key factual dispute as to whether the design board limited Sky’s house to a height of 26 or 29 feet, and how the actual height is to be determined. However, Dickerson found that issue irrelevant to the issue of whether Ingram’s appeal was timely.
The City of Bisbee was represented in Ingram’s appeal to the BOA by local attorney Jana Flagler. When the special action was filed, the city’s insurer arranged for legal representation by an out-of-county attorney.