Printable VersionArizona Superior Court ruled in favor of two Lake Havasu City residents and their case against the city to keep a non-working windmill on their property.
Gurtler’s ruling stated that the language of the current city ordinance did not prohibit Walter and Hilary Sosey from owning a 30-foot windmill on their property because it is regarded as art and has no function. The Soseys argued their case after receiving a violation notice June 25, 2008, from city zoning officials and appealing the case to the Board of Adjustment on Feb. 23, 2009. The Board upheld the zoning violation by a 4-1 vote. The ruling Thursday reverses the decision of the Board of Adjustment.
“We were just so pleased,” Hilary Sosey said Friday. “What came out in the judge’s findings supported something we’ve been saying from the very beginning. We felt the city wasn’t right in their interpretation of the code and we were vindicated.”
The case referred to section 14.40.030(A) of the city’s development code which states “Accessory structures and structures necessary to residential uses may occupy more than 50 percent of the required rear yard and are not to be more than 15 feet in height, and are required to be located at least 10 feet from the nearest part of the main structure.”
Hilary Sosey said the couple felt the city was being unreasonable in its assessment of the windmill.
“It’s not like we were these irresponsible people who said ‘Let’s put this up and the heck with the city,’” she said. “That’s not what we were doing. We were putting up this piece of art.”
City Zoning Administrator Stuart Schmeling disagreed that the city ignored the Soseys complaints.
“That is totally incorrect,” he said, adding that he had several meetings to determine if the windmill fit the existing code before making his decision. “As far as my interpretation, the house is a primary structure and any other building would be secondary structure.”
Gurtler made his decision, in part, because the term secondary was not defined in the code’s language.
“Given the definition of accessory structure, the court can also not equate ‘yard art,’ a landscape use planning tool, to be an accessory structure,” Gurtler wrote. “The Zoning Administrator (Stuart Schmeling) has candidly admitted there are no landscaping regulations and the drafters of the code did not want to over-regulate.”
Schmeling said he did not agree with the court’s decision based on the language.
“I just can’t believe they decided against (the language), he said. “It’s surprising that they can determine that something such as a windmill is not an accessory structure.”
Schmeling said by his interpretation of the court definition, the windmill was admissible because it didn’t quite fit the wording in the code.
“To me the ruling suggests that somebody could put a windmill up to 100 feet and simply disconnect it, and it’s yard art,” he said. “It has to do with language of the code. Obviously we will have to go back and look at that language.”
City Attorney Paul Lenkowsky said the City Council would need to make the decision.
“We need to confer with both city staff and City Council with what, if anything, they plan to do in response and it’s unlikely that it would end up on (Tuesday’s) agenda,” he said, adding that the city could amend the language to include all structures. “If city staff decides to recommend an amendment … it would only apply prospectively. Any structures in existence would be considered pre-existing, non-conforming like a ‘grandfather clause.’”
Schmeling said officials were in the process of investigating the structure under building codes.
“In this case we would (investigate without a complaint) because it requires a building permit as well,” he said. “It’s not only something from a zoning perspective, but we have to look at it from a building perspective. To my knowledge windmill does not necessarily fit within building code but it’s something we need to look at.”
You can contact the reporter at nbruttell@havasunews.com
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