Gilbert panel sides with fish distributor

A pet fish distributor in the Agritopia community narrowly reeled in a victory this week from the Gilbert Board of Adjustment, which voted 4-3 to allow Tropaquatics Inc. to continue keeping store-bound fish in 50 tanks inside a detached Gilbert garage.

But owner Steven Powell admitted the situation isn't ideal, minutes after prevailing Wednesday night in his appeal of a town decision that he is running a warehousing business prohibited in a residential area.

Complaint: Home business fish out of water

"We really would have preferred to have it in a different place, and we're doing what we need to do to get there," he said, adding he misses the extra space and fewer regulations he'd had in a more conventional setting.

Neighbors turned out to support him at the hearing, telling the board the business hadn't had any negative impact on the area, and they supported his efforts to stay afloat in the current tough economy.

"I've known the Powells for two years, and I didn't even know they had a business in their house before this," neighbor Jennifer Clark said.

Town zoning administrator Mike Milillo labeled the business a warehousing operation after Powell appealed a code violation notice, issued by the code compliance department following a complaint about odor and flies around the garage.

Milillo said even though Powell had made efforts to mitigate any negative impact on the Agritopia neighborhood, the business would still have to go because Gilbert doesn't allow warehouses in residential areas.

Powell's appeal of that ruling brought him to the Board of Adjustment, which has the same lineup as the Planning Commission but serves a different function as arbitrator in such disputes.

His wife, Misty Powell, told the board the move to the garage has always been intended as a temporary measure during the tough economy, and she and her husband were working to minimize the effect on their neighbors. "We'll do what we need to do to comply with anybody's rules, but we're just trying to make a decent living."

About 10 Agritopians testified Tropaquatics hadn't detracted from the quality of life there and should be allowed to remain.

One Agritopian was opposed. Dean Ricks said the Powells' presence on Agritopia Loop Road, across the street from Gilbert Christian Schools, had contributed to congested parking conditions.

"I'm just looking at it as a safety issue, at this point," he said.

The board's debate ranged from what constitutes a warehouse under two different land development codes and which one should apply in this case, to the intentions of the founders of Agritopia, who specifically encouraged home-based businesses within the development plan approved by the town in 2001.

Board member Jennifer Wittmann said she was part of the team that submitted the Agritopia development plan. She said she was troubled by the fact that Powell had not obtained other permits from the town before bringing the business there or installing a water pump, air conditioner and other equipment on the garage to maintain the water quality in the fish tanks, but still felt the business fit in with the vision.

"One of Joe's (former property owner Joe Johnston's) biggest comments was that the point was to ensure that people within Gilbert could have home businesses," she said.

She and others said the town's definition of "warehouse" was vague, but generally implied a large facility served by freight trucks. But board member Anthony Bianchi said that since Tropaquatics was simply repackaging fish delivered to his home before sending them on to pet stores, there was no other way he could look at it.

"It's basically a live-fish warehouse," he said.

Wittmann voted to overturn Milillo's earlier ruling, along with board members Michael Monroe, Jessica Sarkissian and Chad Fuller. Bianchi sided with the town, along with Bridgette Petersen and Rob Steiger.

Petersen said her vote had nothing to do with how the business was operating. "I think they're obviously running it just fine, from listening to the neighbors. I was just going off what I thought the definition was."