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HomeMy WebLinkAbout221212 Summary Minutes & Verbatim TranscriptPlanning and Zoning Commission Meeting of December 12, 2022 1 of 2 TOWN OF FOUNTAIN HILLS MINUTES OF THE REGULAR MEETING OF THE FOUNTAIN HILLS PLANNING AND ZONING COMMISSION DECEMBER 12, 2022 1. CALL TO ORDER, PLEDGE OF ALLEGIANCE AND MOMENT OF SILENCE Chairman Gray called the Regular Meeting of the Fountain Hills Planning and Zoning Commission held December 12, 2022, to order at 6:00 p.m. and led the Commission and the public in the Pledge of Allegiance and a Moment of Silence. 2. ROLL CALL Present: Chairman Peter Gray; Commissioner Clayton Corey (telephonically); Commissioner Susan Dempster; Commissioner Dan Kovacevic; Commissioner Rick Watts,Jr.; Commissioner Patrick Dapaah Absent: Vice Chairman Scott Schlossberg Staff Present: Development Services Director John Wesley; Senior Planner Farhad Tavassoli; Executive Assistant Angela Padgett-Espiritu 3. CALL TO THE PUBLIC 4. CONSIDERATION AND POSSIBLE ACTION: approving the regular meeting minutes of the Planning and Zoning Commission November 14, 2022. MOVED BY Commissioner Dempster, SECONDED BY Commissioner Kovacevic to approve the Planning and Zoning Commission minutes of the Regular Meeting of November 12, 2022. Vote: 6 - 0 - Unanimously 5. CONSIDERATION AND POSSIBLE ACTION: A Special Use Permit for the construction of golf ball fences on property located at 154816 E Brittlebush Lane. MOVED BY Commissioner Dempster, SECONDED BY Commissioner Watts to forward a recommendation to the Town Council to approve a Special Use Permit to allow one horizontal golf net not to exceed fifteen feet in height on the west side yard of property located at 15816 E. Brittlebush Lane. Vote: 3-3 (no recommendation) 6. PUBLIC HEARING, CONSIDERATION AND POSSIBLE ACTION: Ordinance 23-01, amending Chapter 1, Introduction, Section 1.12, Definitions, by adding definitions related to detoxification and drug treatment facilities, amending Chapter 12, Planning and Zoning Commission Meeting of December 12, 2022 2 of 2 Commercial Zoning Districts, Sections 12.02, 12.05, and 12.06 to add uses for detoxification and drug treatment facilities: Section 12.03 to amend group home to community residence; and, amending Chapter 18, Town Center Commercial Zoning District, Section 18.05 B to amend group home to community residence. MOVED BY Chairman Gray, SECONDED BY Commissioner Dempster to continue agenda item number six (6.) to the January 9, 2023, Planning and Zoning Commission meeting. Vote: 6 - 0 - Unanimously 7. COMMISSION DISCUSSION/REQUEST FOR RESEARCH to staff. 8. SUMMARY OF COMMISSION REQUESTS from Development Services Director. 9. REPORT from Development Services Director. 10. ADJOURNMENT The Regular Meeting of the Fountain Hills Planning and Zoning Commission held December12, 2022, adjourned at 8:08 p.m. PLANNING AND ZONING COMMISSION Chairman Peter Gray ATTESTED AND PREPARED BY Paula Woodward, Executive Assistant CERTIFICATION I hereby certify that the foregoing minutes are a true and correct copy of the minutes of the Regular Meeting held by the Planning and Zoning Commission, Fountain Hills in the Town Hall Council Chambers on December 12, 2022. I further certify that the meeting was duly called and that a quorum was present. DATED this day of December 12, 2022. Paula Woodward, Executive Assistant TOWN OF FOUNTAIN HILLS Page 1 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 1 of 64 Post-Production File Town of Fountain Hills December 12, 2022 Planning and Zoning Commission Meeting Transcription Provided By: eScribers, LLC * * * * * Transcription is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings. * * * * * TOWN OF FOUNTAIN HILLS Page 2 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 2 of 64 GRAY: Commissioner Corey, are you on the line? COREY: Yes, I am. GRAY: Very good, sir. And we'll get going here in 60 seconds. COREY: Okay. (Pause) GRAY: Okay. It's 6 o'clock on the dot. I'd like to call this meeting to order. This is the December 12th, 2022, Planning and Zoning Commission Meeting for the Town of Fountain Hills. If you would please rise for the pledge of allegiance and a moment of silence. ALL: I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all. GRAY: Thank you. Okay. Ms. Angela, roll call please. PADGETT-ESPIRITU: Thank you. Chairman Gray? GRAY: Present. PADGETT-ESPIRITU: Vice Chairman Schlossberg? Commissioner Dapaah? DAPAAH: Here. PADGETT-ESPIRITU: Commissioner Corey? COREY: Here. PADGETT-ESPIRITU: Commissioner Dempster? DEMPSTER: Here. PADGETT-ESPIRITU: Commissioner Kovacevic? KOVACEVIC: Here. PADGETT-ESPIRITU: Commissioner Watts? WATTS: Here. PADGETT-ESPIRITU: We have a quorum. GRAY: Thank you, Angela. Moving quickly to agenda item 3, open call to the public. Angela, do we have any speaker cards? PADGETT-ESPIRITU: Not for call to public. GRAY: Thank you very much. TOWN OF FOUNTAIN HILLS Page 3 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 3 of 64 Agenda item 4, consideration and possible action on the regular meeting minutes from the Zoning Commission agenda date November 14th, 2022. Commissioners, any comments or a motion please? Commissioner Dempster? DEMPSTER: I would like to make a motion to approve the regular meeting minutes of the Planning and Zoning Commission meeting of November 14th, 2022. KOVACEVIC: I'll second. GRAY: All in favor. ALL: Aye. GRAY: 7-0. WATTS: Just as an FYI, Chair, my red light doesn't work. It's the other one. GRAY: Maybe it's that one. John, we have to put him in timeout. [LAUGHTER] WESLEY: That's your job, Chair. GRAY: All right. Agenda item 5, consideration and possible action on a special use permit for the construction of a golf ball fence on the property located at 15816 East Brittlebush Lane. John, your presentation please. WESLEY: Chair, Commissioners, welcome this evening. I'll go through this presentation for you. So as stated this is request for a golf ball fence on a lot located along Brittlebush Lane adjacent to 11th hole of the Sunridge Golf Course. A little closer look here at it. The house and property are subject to strikes from golf balls. An expert report that was attached with your document estimates there could be around 150 ball strikes a year based on the amount of activity historically at this golf course, and that they could be travelling as much as 97 miles an hour. You can see that from the one tee there it's just under 500 feet approximately from the tee box to the house. Here's some examples that the property owner provided of some of the golf ball hits that have taken place on the house, and you can see that strikes do occur and damage does occur from those. TOWN OF FOUNTAIN HILLS Page 4 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 4 of 64 Our zoning ordinance allows for golf ball fences to be approved administratively when they meet certain criteria. You abut the golf course. You're within 600 feet of the forward-most tee box. As long as your neighbor agrees to the -- it's awkward to say this -- your fence either set back from your property line as far as it is tall, you can do that administratively, or if neighbor approves you can go closer, but a maximum height of 25 feet. The pole has to blend with the background and use a black net. So if you don't meet those criteria then it requires that you apply for a special use permit and come before the commission and the town council. And so in this case the property owner, particular the one on the east, did not approve the net because these lots are small, the fence would need to go right on the property line, and so it would require that property owner's approval, which they did not do. And then also they're proposing, that's what you'll see here in a minute, a horizontal net on the west side, which is kind of different then what's really anticipated in the code. It would talk, usually, a vertical net, so that's not consistent with the code requirements. So for those reasons that is here before the Commission. So the -- what's being proposed is a net along this northeast corner. As we'll talk about a little bit, they'd actually like to go as high, ultimately, as 33 feet, and then also a horizontal net on this west side to cover the pool because balls actually go over the house and strike this wall here some and land in the pool. So what's being proposed, again, ultimately, what they would really like based on the report is a 35 foot tall net that would go here. And then on this side, these poles along this west side would be 18 feet tall and the net would string from the top of those poles over and then attach to the eave of the house. So the zoned ordinance sets certain criteria for the Commission to consider when looking at a special use permit. What is the impact on the health, safety, welfare of persons in the neighborhood, and is it going to -- approval be in a detrimental injurious in any way to the neighborhood or the town. So when we look at this particular situation, again, the house juts out a little bit more than the other ones adjacent to it. Let me go back to those aerials just a second. Whoops. Wrong thing here. So when you look at this property, the house and where it sits here towards the back of this property, the other one next to it is a little bit further forward, TOWN OF FOUNTAIN HILLS Page 5 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 5 of 64 and just kind of where you are from the tee box and the way the balls go, it's a little bit more subject to hits than those adjacent to it. We did see the photographic evidence of the golf ball strikes on the house. Attached to your report was a study that was done by a person who analyses these types of situations, and they do, again, estimate a significant number of golf balls hitting this property at a fairly high speed. To my knowledge and looking at our maps, I can see where the town has previously approved golf ball nets in reading some of those reports. And basically any time that the council saw there was damage being done by the golf balls they have, it appears, approved these applications. I found six SUPs, and I know over the last year we've approved administratively two golf ball nets or fences. Some of the concerns we've heard as we've looked at this and heard from some of the neighbors, the impact on views. People bought here and had homes for many years along the golf course partially because of the views. This house and the golf course have been here together for at least 25 years and so I don't know if there's anything significantly different now then there has been for the last 25 years, why this would maybe become more of an issue. I mention in the staff report that the architectural review committee for the HOA was also reviewing this for their approval. They met last Thursday. They were not able to come to a decision on this and so they're hoping that the town comes to one that then they can consider from their end, but they have not made a decision at this point. That horizontal net that's proposed on the west side doesn't really quite conform to anything in our code. If someone were just trying to do some kind of patio cover there it would have to meet setbacks. If it's free standing gazebo of some kind, a small structure, given the placement of the pool, it's by the side of the house, there's really no place to put any structures to hold that up. It's just really kind of an odd situation. And so again, that's why that's being reviewed as part of a special use permit. If it were an accessory structure it could be a maximum of 12 feet tall if it's small structure, and 15 feet tall if it was a large structure over 120 square feet. They're asking for 18 feet in height. So as we have looked at that, given the damage that we see on the property, the history of the town approving these, staff is recommending approval of the 25 foot tall fence at the northeast corner. For the one on the west, because of the unique situation with the benefit TOWN OF FOUNTAIN HILLS Page 6 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 6 of 64 easement, it would take approval of the neighbor. Those poles would actually be on their property to put it in as it's been proposed. If not, they'd have to move the poles to the east to stay on their property, which becomes challenging because of the location of the pool, but may be possible. But I would also recommend that that come down to no more than 15 feet in height, similar to an accessory structure. Any questions that you have of me? GRAY: Commissioner Kovacevic? KOVACEVIC: The 25 foot tall net on the northeast corner, is that going to run abut the golf course, is it going to wrap the corner? WESLEY: So the golf course is to the north -- KOVACEVIC: Yeah. WESLEY: -- here, and so it does wrap north and then comes down here to the corner of the house. KOVACEVIC: Okay. And the staff recommendation is 25 feet? WESLEY: Yes. That's what is permitted by code. And the study shows that they really need 33 feet to really protect the house but by code we can't approve more than 25 feet. If this does get approved by town council and they want to try for the 33 feet, that would be a board of adjustment variance request. DEMPSTER: John, what is the color of the net proposed? I just saw black border roping but I didn't see that in the -- WESLEY: So -- DEMPSTER: -- report. WESLEY: -- it's a black net. It's required to be a black net. DEMPSTER: Black? WESLEY: Yes. DEMPSTER: Okay. Thank you. WESLEY: So the question is the poles. I haven't focused on that too much yet because we'd really get into that more with building permit, see what they're exactly going to do, but it's supposed to blend with the background. DEMPSTER: And then we're talking about two separate nets. So the HOA approved one at the maximum height, is that correct, of 25 feet, or -- TOWN OF FOUNTAIN HILLS Page 7 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 7 of 64 WESLEY: Chair Commissioner -- DEMPSTER: -- neither? WESLEY: -- Dempster, that's maybe a little bit confusing to me at this point. It was my understanding at one point they had approved the 25 feet, but in discussions with them today, I'm not sure that they have actually approved anything. But at the most it would be the 25 feet. DEMPSTER: On the northeast -- WESLEY: On that northeast corner. DEMPSTER: -- corner? WESLEY: Right. DEMPSTER: Okay. Thank you. GRAY: Commissioner Dapaah? DAPAAH: Yeah. John, the six known previously approved SUPs by the town, are they also, or any of them in that general vicinity, are they in the same course, or in the -- WESLEY: Commissioner -- DAPAAH: -- same community? WESLEY: -- Dapaah, no. It's my understanding this would be the first one on this course. The ones that I'm aware of are all -- there's a couple down in the FireRock and the Eagle Mountain, on those golf courses, and then a couple over -- I forget the name of the one, but kind of the -- DEMPSTER: Desert Canyon. WESLEY: -- southeast. Desert Canyon golf course. DAPAAH: Thank you. GRAY: Commissioner Watts? WATTS: John, over what time were these photos taken; was it over a one year period, two, more? WESLEY: Chairman Commissioner Watts, that'd be a good question for the applicant. My understanding is they're all fairly recent. WATTS: Okay. And are they subject to that same letter that goes out to the adjoining neighbors to have a meeting to talk about it or is that only applicable to variances? WESLEY: It is applicable to SUPs. We've handled it slightly differently this time just TOWN OF FOUNTAIN HILLS Page 8 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 8 of 64 because of the nature of the request. But yes, and so the neighbors are all aware of it, and have had a chance to provide their input. WATTS: And we've got what kind of response from the neighbors? WESLEY: So we have emails, and you've got them in front of you. I did mention that earlier. We did get a couple late emails and they've been passed out to you. Got emails from neighbors on both sides and there was a petition circulated by a neighbor that got about half of the property owners along the street signing in opposition to the net. WATTS: It's interesting that Sunridge Canyon has very nice video, a drone video where they fly all the fairways, and you can see the relationship between the fairways and the houses. And to your point, this has been like this for 25 years. Would you anticipate more requests for golf ball fencing based upon this setting a precedent? And I know it's a crystal ball question. DEMPSTER: Yeah. WESLEY: Yeah. Chairman Commissioner Watts, it's hard to speculate. Given the history of, again, 25 years approximately that the course has been there, and most of the homes have been there, it hasn't been an issue. I wouldn't expect there to be a rush, but then again, once one goes up and somebody sees that and they say, oh, yeah, I think I'd like that too, it could stimulate at least some. WATTS: All right. And it's unfortunate, it's right in the zone of the average weekend golfer about 220 yards, just shy of that. So obviously the traps are there for that same reason but it's just been there for a long time. So -- GRAY: Well, that's my challenge too, is in 25 years the technology and the golfer have changed dramatically, and what was once the tail end of a shot for a lot of golfers is now in everybody's wheelhouse. So I'm not a big proponent of the fences, never really have been, but I can certainly understand the application. I can't figure out what's the benefit of the horizontal net? That just seems like a maintenance nightmare. WESLEY: So again, the applicant's here, he can explain it in more detail. And he can show and the study shows the balls actually can go over the house and land in the pool, hit the house to the west. And so that horizontal net there is to prevent being in the pool and also being hit by a ball while you're swimming. GRAY: Would seem challenging based on the trajectories that the third party has shown TOWN OF FOUNTAIN HILLS Page 9 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 9 of 64 but I suppose it's possible. I see the ricochet shots all day long but I don't see direct strikes into that pool. That's the piece of it that I -- WATTS: Right. GRAY: -- kind of struggle with. WATTS: You know, the other thing is that I think the average golfer, right-handed golfer has more of a fade then they have of that hook back to the left, or slice I guess, and it's kind of curious about that. Also has there been any contact with Sunridge Canyon directly? I know at Desert Canyon they've got club restriction, club limitations on the driving range, for instance, and there was one house down the road from the driving range that fought for years to get netting up. But they restricted the clubs and I would think that if they restricted clubs on this particular tee box maybe to a 7-iron or something that they would be able to minimalize any impact as it's a much more controllable club then a driver. So I don't know if there's any conversation at all. WESLEY: I don't know either. WATTS: Okay. KOVACEVIC: Yeah. I don't think that's a practical thing on a golf hole to tell somebody how they have to play it. But is it normal course of operation to come to the town before getting a homeowner association approval? WESLEY: Chairman Commissioner Kovacevic, it's a chicken and egg thing. They're each independent of each other, and one doesn't technically rely on the other, but they ultimately need both, and they've been trying to work both. Again, they had a meeting with the HOA last week, and HOA has, at this point, postponed any decision pending what happens with the town. GRAY: Commissioner Dempster? DEMPSTER: John, can you tell between a 25 foot net and a 33 foot net, that differential, how many golf balls? I was trying to look through the report. Can you tell? Because you said that, I mean, because if I lived on a golf course, I would expect golf balls. It's just logic, you know. And of course, being a realtor and selling property in Fountain Hills with multiple golf courses, homes on golf courses get golf balls. So if it was approved at 25 feet, you know, how many golf balls would get beyond that? TOWN OF FOUNTAIN HILLS Page 10 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 10 of 64 Because that would completely hopefully diminish the projected 250 balls per year potentially. WESLEY: Chairman Commissioner Dempster, no, I don't recall that being specifically described in the report, how many more that would be. DEMPSTER: Thank you. GRAY: Commissioner Watts? WATTS: The question is really more for Commissioner Dempster. Is this an issue that had to be on the disclosure statement when the house was purchased because it was purchased fairly recent? DEMPSTER: It should have been -- WATTS: And if it was -- DEMPSTER: -- in my opinion. WATTS: -- then this current owner knew what they were getting into when they bought the property. DEMPSTER: If the seller disclosed it. WATTS: I think if you're on a golf course you know what the impact is. DEMPSTER: Um-hum. WATTS: And you would be remiss in not asking the question even if it wasn't on the disclosure statement. DEMPSTER: Correct. And you can also -- I always walk to the edge of the property and turn around, and you can see repairs and marks from previous, I mean, there are things you can eyeball as well. GRAY: John, I think the applicant would like to make a few statements or has a presentation. JOHNSON: I am sorry to be here. We bought the property and we've got a serious problem. And I think maybe the time would be best spent you asking me those questions and I'll do my best to answer them because I've already gone through these questions. Would anybody like to ask me the question you just asked John? How about the 25 versus 33? DEMPSTER: Sure. JOHNSON: Okay. I do think you have the resume. Did you get the resume of the pro TOWN OF FOUNTAIN HILLS Page 11 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 11 of 64 golf instruction? DEMPSTER: Yes. JOHNSON: Did you get it? Okay. It's pretty impeccable. He does a lot of litigation and this is what he does. He's quite the golfer. He says 33 feet based on his trajectories and I guess he's done a lot of studies. Again, if you look at his resume you'll see what he's done. And if you've read the report, you know that he's not a quack, he's a serious guy. It cost a lot of money to do this. I did the report because I just wanted to know after we moved in, am I nuts, is this unusual, or what's the story here. So I hired him to take a look at it. He confirmed what I was seeing. We were getting ten balls a week if not more. Our current tenant that's in the building now is getting about that same number. We were narrowly missed several times. Same thing with our tenant. We only spent two months there. We did a remodel and during that time it was nothing but constant impacts on the home. Someone asked, well, did you have a discloser? We did. It was not disclosed. We were limited at the time as far as getting in there and taking a hard look at the property. We did not notice the number of golf ball strikes. If you look at some of these photos you'll see holes in the wall. Well, those are evident. But what wasn't evident were all the patches that had been done, and it looked more like a rust stucco exterior rather than a flat stucco. And when we hired a -- it really came to our -- I really noticed it after my painter said he almost got knocked off a ladder. While he was painting a ball hit so close to him and he said, you know, someone's painted this wall. My neighbor's wall. And I said, no, I didn't know that. And he says, yeah, there's two different colors here, and look, they've done all these patches. I asked the neighbor to the west if they wanted to participate in this fence once I got to that point and they said no, and they said, you know, we don't want you touching our house. And I said I wouldn't. I said, but have you painted your house, have you painted that wall? And they said no. And I said, well, somebody's painted your wall recently. Okay. And I'm assuming it's the previous seller. But I'm stuck in a position where it's untenable to be in the backyard. We can't use the backyard. Balls directly come splashing into that pool, they ricochet off the wall. Someone, I believe it was Mr. Watts, you mentioned something about how could -- why TOWN OF FOUNTAIN HILLS Page 12 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 12 of 64 would we get so many there based on the fact that most right hand golfers, it tends to go to the right. Well, a lot of people cut that dogleg, so they'll cut across. So rather than try and come up the center and lay it out to the center, they'll try and cut that corner, and that's our house. We stick out there further than anybody else, we take the majority of the impacts. I'm trying to think of what else. Oh. Someone said have you contacted Sunridge. Yeah, I did. I talked to the owner on a couple occasions and I said, look, here's kind of what happening. Is there anything you could do that maybe could help me, is there anything? I don't know. You're the expert. And he says, well, number one, no one's cutting the doglegs. Then we had this report done and the report says, yeah, absolutely, guys are trying to pick up a stroke and they're cutting the dogleg. That's another reason you're getting hit. And I said, well, could you adjust your boxes? So instead of going where they're going now, just kind of tweak them off to the right so they'll have a tendency maybe to hit them off to the right, you know. Could we put some trees out there? Could we do something to kind of get people to hit it to the right a little bit more? And at one point he said, maybe I could do something like that. And then was kind of the last I heard. I followed up and essentially he would like to do nothing, and I can't force him to do anything at this point in time. Okay. So I've attempted to do that with him. I hired the experts who came in the backyard and they said, yeah, well, look, you need a fence on the northeast corner and that ought to give you some safety while you're sitting in your backyard. They also said the horizontal netting that goes over the pool, depending how far you want to take it, that would give you safety from balls ricocheting off the other wall and/or literally just arching over and dropping right in on the area where you would typically sit. It's not 18 feet. I think the original plan was 18 feet and I don't know how that got by us but I don't need 18 feet as far as height on that west side. I just need like 11 or 12 feet, just something to cover it and a little slope down to the house. And that I don't think anybody would see from the street. I'm trying to think what else was asked. Who else asked a question that John answered? Will there be more requests? Possibly. But I'm looking at 25 to 30,000 dollars to do this netting. I doubt there's that many people that want to put that much money into their TOWN OF FOUNTAIN HILLS Page 13 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 13 of 64 backyards, you know, so they don't get hit by a golf ball. But if you'll look again at that study, I am the one that's impacted the most. Again, if you'll look at that study where the balls are going, they're going to me. The first series of homes, including my neighbor to the east, are not impacted the same as I am. There is a drawing in there where he shows a number of balls and how they're scattered around. You'll see the lines where he's showing which ball at what speed ends up where, and again, it's us. Had I known this to begin with, we wouldn't have bought the property. It was not disclosed. As far as, yeah, you live on a golf course you're going to get golf balls. Yep. We know that. We live on a golf course in Idaho. And no, we don't get anything like this. I think we got two balls last year. I talked to my neighbors further down the road, down the line, and no one gets anything like this. No one. After we moved in, after we were in the process of doing some remodeling, someone showed up at my door ,and he was a previous kid that did the pool, he's a pool service. And he says, hey, I thought I was going to do your pool service. And I said, I thought you were too but I never got your contact information so I didn't know how to contact you. I said, I asked the seller for this information, never got it. And he says, well, that's really strange because I thought we had a good relationship. When the previous seller moved out he gave me 400 golf balls that he'd collected in the backyard. I said, well, that's interesting because no one told me anything about any of this. So I'm faced with a really serious situation, which basically makes the yard unusable. Some people are saying, you know, gee, it's going to look ugly. I don't think you're going to see a whole lot from the street. If my netting on the west side is only 11 feet sloping down to say 10 to my house, that's going to be hard to see and it's just going to be basically a few poles with the nets. On the northeast corner if we can go to 33 feet, that should make a huge difference. Previously the HOA approved 25 feet. I have the records, I have the emails, I have the approval. This time around I think somebody lobbied the HOA against me and I think that's why they haven't come out and said, okay, look, we're okay with 33 feet, because I think originally they were aware of the liability that I had as an owner renting that property to somebody. And yes, I did disclose that to my new tenant. I said, you know, we're get a hell of a lot of golf balls out here. I'm not sure how many, but I'm going to TOWN OF FOUNTAIN HILLS Page 14 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 14 of 64 have a study done and I'll share it with you once I get it done. If you have an issue, let me know. If you need to be let out of the lease, let me know if it becomes a problem for you. And they're telling me now, yeah, gee, Jim, there's a problem. We've almost got hit a couple times. So maybe if you have any other questions you want to ask me, feel free to ask me now because I've done a lot of research on this, and you know, I'm very concerned. DEMPSTER: I have a question. Can you clarify because we keep hearing different, or I keep hearing different heights. So the northeast corner -- JOHNSON: Uh-huh. DEMPSTER: -- what is the height of the net that you're requesting? JOHNSON: 33 feet. DEMPSTER: 33 feet. And when you're talking about 11 feet, you're talking about the horizontal -- JOHNSON: This one, yeah. DEMPSTER: -- net on the west side? Oh, John has a pointer. So you're talking about -- JOHNSON: Right here. DEMPSTER: -- an 11 foot -- JOHNSON: 11 foot. DEMPSTER: -- net that slopes -- JOHNSON: Not 18. If it was 18 you could see that pretty -- DEMPSTER: Yes. JOHNSON: -- clearly. Just 11 feet here sloping down to say 10 feet here, connected to the home. DEMPSTER: Right. JOHNSON: The ledger board or however we have to construct that. They've done the engineering. I've done the engineering. And here it's 33. Now, 25 sounds like a lot, but if 8 feet makes a difference between somebody getting hit at 97 miles an hour and not, I say I'd go the extra 8. DEMPSTER: And then do you have anything with you showing that the HOA approved a net? JOHNSON: I didn't bring it with me. I didn't think it would be an issue. TOWN OF FOUNTAIN HILLS Page 15 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 15 of 64 DEMPSTER: Okay. JOHNSON: Yeah. But I do have it. DEMPSTER: I'm just -- JOHNSON: Yeah. DEMPSTER: -- curious. JOHNSON: Absolutely DEMPSTER: Okay. And they approved which net? JOHNSON: The 25 feet. DEMPSTER: A 25 foot net in the northeast corner? JOHNSON: On the northeast corner and one going across the horizontal net. When I submitted it to the planning commission, I heard that, you know, you can't have one over 6 feet, so I think that's why we're here now, to get a horizontal net that's high enough so it doesn't look like, you know, you're walking out to -- DEMPSTER: We're here -- JOHNSON: -- your backyard you have to duck underneath this netting. DEMPSTER: We're -- JOHNSON: And I'm doing everything I can to not impose on anybody and not take anybody's views away because I don't think anybody's views are impacted except for mine. I'm doing what I can and I'm working with everybody I can work with. And if someone has a better idea, I'm all for it. COREY: I have a question. GRAY: Commissioner Corey? COREY: Yes. JOHNSON: Oh. COREY: Thank you, Chair. So you know, I think we're in a unique situation here because we've got not only the backyard that you're proposing but the side yard there as well. I'm just looking at the illustration from the vendor that you had draw up the plans. So it looks like it's protruding far beyond the roof. I'm just curious, Applicant, did you look into maybe having -- if this was lowered but have some sort of screening on top that if the walls were lower the balls would just hit on TOWN OF FOUNTAIN HILLS Page 16 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 16 of 64 that top screening? And I'm almost thinking like you think about like how a lot of homes in Florida are with the bird cage around the pool area. That would all be within your property. It would protect from the balls coming from kind of top down direction as well. Did you look into that at all? JOHNSON: I'm not sure I understand what you're saying. Let me just say this again. On the west side, which would be next to my neighbor's wall, we're looking at say 11 feet. Going down to my property, my wall, 10 feet and connecting to that. So it's just a net overhead, it's not a complete birdcage, it's just an overhead net sloping down. There's an issue with an easement there that my neighbor to the west is giving me a five foot easement, and as I understand it, the HOA has said if they will agree, I could put poles in that easement, and then drape it over to my house, and connect it to my house. I'd have to be a foot off of their wall. Okay. I'd have to be a foot off of their wall in order to do that but I'd need their approval. If you say, well, look, you've got to go 5 feet off that wall, then you can't put posts in there because there's just not enough room. There's the pool that's going to get in the way. There's just not enough room. So I'd have to, according to what I understand, I'd have to get their approval to do that, to go into that easement. And again, if there's another way of doing this, I'm looking for solutions. I'm not looking to cause problems but I have a problem. So I'm here to brainstorm with you if we can find a way. GRAY: Jim, just for clarity. Is the L-shaped fence, the 33 foot fence, is that measured from native grade or is that measured from top of your retainer there? JOHNSON: Oh, no. That's measured from the ground up. GRAY: And finished floor being your backyard or the golf course elevation? JOHNSON: No. that would be my backyard. GRAY: Your backyard. JOHNSON: So it would be the backyard and then here's your fence, 33 feet. GRAY: So really off the course we're talking -- JOHNSON: It's not right. The course doesn't go -- JOHNSON: Yeah. The course goes downhill, or the course is lower. GRAY: Right. Yeah. It looks like a double retainer back there. TOWN OF FOUNTAIN HILLS Page 17 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 17 of 64 JOHNSON: Yeah. There's a double retaining wall, drops down about 8 feet or something of that sort. We're kind of up there on an island by ourselves. I'm going to use an analogy here, I hope it's okay. The wall look like Fallujah. Okay. What was left at Fallujah. And that's on the west side. It's hit and pock marked that bad. And again, when we bought the property, we had very limited access to it. We were denied contractors to go in there and give us estimates on the property to do various things, one of which was to paint. And I think, personally, he did it because of the fact he didn't want us to come back and actually notice the number, and notice the fact that these were all golf hits. When you saw those photos it's not just one hole. That hole's been patched -- there are two, three, four holes in that same area, and you can see how they patched it, and then they came in and then they patched it, and then they patched it. It wasn't a good job but that whole thing's been patched. GRAY: And that's actually on the neighbor's elevation, right? JOHNSON: That's on the neighbor's elevation. Now, on my -- these are zero lot line homes. On the right hand side of that photo there, that'd be east side. My wall doesn't look that great either, but that's my neighbor to the east, and they're not impacted as much as I am. And that you'll see by the analysis that was done by the golf pro. GRAY: Is your neighbor to the west is a full adopter, full participant? The neighbor who's given you the 5 foot easement. JOHNSON: Yeah. That was to the -- GRAY: They're on board with your horizontal net? JOHNSON: I haven't asked them. I didn't know that we would even need to do that. I thought, well, I mean, I didn't know this. I'm learning. WESLEY: Chair, one of the two emails I left up there at your podium this evening is from that neighbor to the west, and they do have concerns. GRAY: The one to the west? WESLEY: Yes. MAYOR GRAY: Okay. JOHNSON: Did they say no? WESLEY: They don't want something attached to their house. They weren't clear if they TOWN OF FOUNTAIN HILLS Page 18 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 18 of 64 would approve any kind of poles in between, but they were also concerned about the view impacts. JOHNSON: Okay. So we're not going to attach anything to their home. It's a pole that goes up a foot away from their house, from their wall, right. It's a foot away, the pole goes up, you attach a net above, down, and connects to my home on a ledger board. And that's the proposal by the people that do nets. This is what they do. They do golf nets. That's what they do. This was their proposal on how to solve the problem. Again, a lot of the rounds that are coming in, the incoming rounds are arched. And again, you go back and look at how the analysis was put together, he talks about the different clubs. He talks about the different strokes. He talks about left-handers, right-handers. I mean, the guy's really complete. These balls are arching over. I've been out in the backyard and you'd say, how in the heck can a ball get that low down there? How is that possible? It has to come all the way over and literally hit this low. Well, guess what, they're arching over and they're hitting it. My neighbor to the west, look at their roof. I put a new roof in, okay, when we moved in because there were so many problems with the roof. It had been patched but it was haphazard so I put a new roof in. The people to the west, their roof is destroyed. It's just cracked tile, after cracked tile, after cracked tile. They're from Canada. They come down, they don't care, here we are. I met them twice. They're very nice people. She thinks I want to attach something to her house, and I don't want to attach anything to your house. I would like to put a pole there, if I could, to run a net across, if that's possible. GRAY: Fair enough. Commissioner Watts? WATTS: What was the duration of the study? JOHNSON: What do you mean, the duration? WATTS: How long did it take -- how long did he accumulate the data that he is presenting in his study? GRAY: He just applied data to this geometry. He didn't -- WATTS: Well, but there's a specific question. If I've got three impacts over the course of some duration based upon scatter plot that's one thing. But if that's representative of ten impacts per dot, and I don't know what that is, that's why I'm asking the duration of TOWN OF FOUNTAIN HILLS Page 19 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 19 of 64 the scatter plot, the collection of that data. JOHNSON: I think, and I'm not sure, but again, it's in his resume. I think he's been doing this for 25 years or something. He's an expert. He testifies in lawsuits. GRAY: Just statistical analysis. JOHNSON: It's just -- MAYOR GRAY: It wasn't an -- JOHNSON: Yeah. MAYOR GRAY: -- actual data capture. JOHNSON: It's an analysis. WATTS: It's not an actual data capture? GRAY: No. JOHNSON: No. It's an analysis based on -- GRAY: He's just saying -- KOVACEVIC: How do you put -- MAYOR GRAY: -- two standard deviations away will result in X number of balls in this -- KOVACEVIC: I have never seen -- GRAY: -- sector. KOVACEVIC: -- a scatter plot put together without data behind it. GRAY: Well, there's data behind the scatter plot but then he's applying that scatter plot to this -- KOVACEVIC: Yeah. GRAY: -- particular situation. KOVACEVIC: But if the data wasn't accumulated on the 11th tee on Sunridge Canyon -- WATTS: Doesn't it still reflect three dots on the house no matter how you got there? I'm trying to give him the benefit of the doubt and say, look, if this was over one day and you got three impacts in one day, but if it's over a month and -- JOHNSON: I mean -- WATTS: -- you've got three impacts in a month -- JOHNSON: I was there two months, okay. I was there two months doing a remodel, 25, 30 balls. What does that work out to? He's guestimating, and right now based on what TOWN OF FOUNTAIN HILLS Page 20 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 20 of 64 we were receiving, because we were getting eight to ten a week for the first bit, then there was a break, okay, and something happened with the golf course and not that many people were playing, and then they came back, and we were running about eight to ten balls a week., and that's about what my tenant right now is getting. And I asked him, just watch this thing, watch, tell me how many balls you're getting. And if it's me, if I'm a whack-o, great, I'm a whack-o, tell me you're not getting any balls in that backyard. And he says, man, my wife almost got hit. She was in the pool, we like to use the pool, you know. And I said, are there any hours you could use the pool, could you use it maybe later? And he said, well, you know, people are going to play until 7, 8 o'clock at night, or 9, or whenever they stop playing golf, I don't know, but people are constantly hitting balls. When we were there it would have to be dark before it was really safe to go out. And I'm concerned about guests, I'm concerned about tenants, I'm concerned about, you know, kids, grandkids coming over. We would like to eventually come down here and move down here, all right, and that was the purpose of buying it, but we've had to rent it because it was part of a tax deferred exchange. So we've got to rent it for now for the next whatever the law requires. But it's just not safe for me or anyone else at this point in time. And you know, I just don't like to have the liability of, you know, this kind of thing where it could be avoided. I'm just trying to avoid the situation, somebody getting hit by a ball. And I don't know if that answered your question but -- WATTS: I want to -- WESLEY: And if you don't mind just for a second -- WATTS: Sure. WESLEY: -- Chair Commissioner Watts. I don't know if this helps much but in number 6 in the report, it's basically assuming 50,000 rounds per year to get into the 250 balls coming into this lot, that combined with the trajectories. That's the closest I see to any kind of number to go by. WATTS: That's what his projections are based upon? WESLEY: Right. From 50,000 rounds of golf a year. WATTS: Okay. And I would assume that Sunridge has somewhere along that line of activity and the falling off periods are probably the summertime when everybody TOWN OF FOUNTAIN HILLS Page 21 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 21 of 64 basically quits playing golf -- JOHNSON: Right. WATTS: -- for the most part. JOHNSON: Right. Um-hum. WATTS: And does Sunridge also recognize their liability? I mean, it's clear on the scorecards that you have the liability for hitting something or somebody. JOHNSON: Hear no evil see no evil. I've attempted to talk to him and I will talk to him again. And I'm nice about it and just tell him, look, we have this problem, and please feel free to come by and take a look. I'd like to show you. He hasn't show up. He doesn't answer my calls, occasionally. A couple times we did get a chance to talk and he said, well, I don't want to do anything. And he was really rough, he was really gruff. It's his business, leave me alone. Okay. And I would call him back and say, look, I'd really like to talk to you because I've got this issue and I think, you know, we should talk about it because I'm willing to work with you. I'm not asking you to put nets up for me. I'm not asking you to pay anything. But if there's anything we can do with how you hit the ball off the tee, perhaps we could do something there. And at one time he said, well, maybe I could tweak it a little bit. I said, that would be great. Anything you could do to just get people rather than trying to cut that corner, they're going to have to lay it more out in the center. They're going to -- and if you put a nice tree down here where if they try and cut that corner they've got to go over that tree, or they got to dodge that tree, they are going to twist to the right a little bit. Okay. And there's just that much more room off to the right. I'm not trying to lay the problem off to the houses that are over there, there's just that much more distance between the tee and where that ball would lie out there, it's going to be a lot safer for everybody. And I will go back and talk to him. I've got a lawyer right now, we're working, people are going to start getting notices, okay, so they'll be some wake up calls. This, as far as I'm concerned, would really help me as far as safety goes and anyone else, so I'm just trying to avoid any and all conflicts with everybody, but there's an issue with the previous seller, and you know, we're going to have to work that one out. It's expensive, I don't want to do it, and I sure don't want to hurt anybody else's views. I don't think anybody else's views will be impacted. If you'll look at the home to the west there's TOWN OF FOUNTAIN HILLS Page 22 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 22 of 64 a big tree there, they'll never see it, right up there in the corner. And on the east we have a tree. Most of this fence, as the tree grows, is going to be covered. Okay. You're going to come out of the home to the east, you'd come out, go to the backyard, look and look off to, I guess that would be the west, you'll see a fence, you'll see the netting. You'll also see a tree that we have right there that we're going to keep, we're going to work around the tree. So we're trying to minimize impacts to everybody and especially someone getting hit with a ball, and whatever happens after that. What didn't I cover? KOVACEVIC: Yeah. JOHNSON: What can I be clear about? KOVACEVIC: I have a question for John. John, can the town mediate something between the golf course and the petitioner? WESLEY: Chairman Commissioner, we don't have a specific mediator but I suppose that's something we could try to all get into a room together on it and discuss. KOVACEVIC: Yeah. WESLEY: And I've done that before. KOVACEVIC: Yeah. I want to add a little clarity if I might be able to. If you could bring up an overhead of the golf hole. WESLEY: I'll put up how much we've got. What are you looking for? Is that good enough or -- KOVACEVIC: Yeah. That can work. WESLEY: Good. KOVACEVIC: So if you see the line that basically shows the direction that you want to hit, I mean, there are -- which is the red button? Is that the -- whoop. MAYOR GRAY: That's not the -- KOVACEVIC: The wrong button. Which is the red? Oh, there it is. That one? No. GRAY: Yeah. It was up on the screen. You just got to point it in the right direction. KOVACEVIC: There we go. All right. That line. The way the golf hole lays out, it give you more room to the right, and the visual from the tee is that you do want to hit the ball to the right. The problem is, if you hit the ball to the right, and nobody's addressed this, there's a strand of trees and things down here in front of the green and a little wash TOWN OF FOUNTAIN HILLS Page 23 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 23 of 64 that protect the green. So if you're out to the right, you don't have a shot to the green. And the people that know this try and play the golf hole down the left-hand side because the best place to get to the green is to land here. And if you land here, and you miss hit, and you hit a hook, you're in Petitioners backyard and bouncing off the houses over there. And I do think that the golf course owner-operator could, at a low cost, put in some trees, first of all, to protect the homes; and B, cut back the trees that are in the wash in order to open up the golf hole from the right hand side. But I don't know if that's something that the city or the town would be willing to intervene in. WESLEY: And unfortunately I'm not in a position to say how much we could do that, but could check into it. KOVACEVIC: Yeah. And that's, I guess, what we could, you know, all we could hope for on that line along those lines. JOHNSON: I appreciate you even thinking about that. I appreciate it. GRAY: Well, he wants to cut his -- JOHNSON: I just want to -- MAYOR GRAY: -- golf strokes too. JOHNSON: What's that? GRAY: He wants to cut is golf strokes down too. [LAUGHTER] JOHNSON: Well, you start at my place, you know. MAYOR GRAY: Yeah. JOHNSON: You know, just kind of chop it over that. KOVACEVIC: And no, I've never hit that house. JOHNSON: Yeah. Okay. Hey. MAYOR GRAY: Commissioners -- JOHNSON: I just want to say one last -- or not one last thing, but we bought the home through a 1031 exchange. Okay. We own a lot of properties. We own really nice properties. All our properties are kept up. That's what we do. Okay. We intend to move into that property, okay, as soon as whatever the waiting period is for a 1031 to where you can transition it into your own home. Ms. Dempster? TOWN OF FOUNTAIN HILLS Page 24 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 24 of 64 DEMPSTER: Um-hum. JOHNSON: You're a real estate person and you probably know what that period is. I think it's basically a year, year and a half -- DEMPSTER: Um-hum. JOHNSON: -- something of that sort; is that correct? DEMPSTER: Yes. JOHNSON: Okay. So we didn't buy it as an investment property, we're just going to rent it and throw a net up. If it was just an investment property, we wouldn't put another 25,000, 30,000 into it, I would just rent it, and I'd have some sort of disclosure, you know, hey, there's a lot of golf balls, be careful. Okay. We didn't' do that and we don't intend to do that. And if I have netting, and my netting looks awful, it's gone because we're going to live there and we intend to keep it up. So I know probably someone's come along and said, oh, he's an investor. Yeah. That's what we've done. That's what we are. We are investors. We buy real estate. But we buy them and we hold them. We buy them in good locations, great properties, we have super tenants, and we maintain all of our properties really well. And if anything we want the values to continue to go up, that's why we chose this location. JOHNSON: Our HOA requires 12 months rent. That is not like an Airbnb where people just turn and burn. JOHNSON: This is my wife. JOHNSON: So it's a minimum 12 months. So an investor would buy something where it's a minimum, you know, of three months on a tenant, but this one has a year. So this for people who want to live in a community and want a nice community, and we're going to move into this home. GRAY: Commissioner Dapaah? DAPAAH: Yeah. So yeah. I appreciate the details that you really put in submitting this document here. And you know, from a safety standpoint alone, okay, I mean, I've witnessed somebody come to the ER with a golf ball lodged in their forehead. JOHNSON: Oh, jeez. DAPAAH: And I understand what you're saying. Are you willing to get into some sort of an agreement with the HOA on the way it's designed, and perhaps how it can be TOWN OF FOUNTAIN HILLS Page 25 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 25 of 64 maintained, okay, preventative maintenance because that's a concern of some of the neighbors, they think that this can someday become a problem. And I don't know how much of an impact this actually can be on property value. Is there anything there, Susan? DEMPSTER: In my opinion, if it prevents someone's views -- DAPAAH: Yeah. DEMPSTER: -- if it blocks someone's views, that can impact someone's -- DAPAAH: That can impact -- DEMPSTER: Yes. DAPAAH: -- that. But -- JOHNSON: Whose view would it block? I mean, really look at -- if you'll -- and I know that he has one page here. Oh shoot. DEMPSTER: Well, I think -- JOHNSON: I just turned this off. DEMPSTER: The -- JOHNSON: And it shows how they're staggered out there, there's really no view there. I have a tree where the neighbors to the east, and I believe they're here today and they can probably speak to this. But there's a tree there that if that's their view, they're looking through my tree. Okay. I'm going to leave the tree there because I want the tree there. I don't want block anybody's view. And as far as -- you bet -- DAPAAH: Yeah. JOHNSON: As far as keeping that netting up, I talked to the guy, he said, oh, our netting's good, you know, it's good for ten years. And I said, okay, okay. So how long's your netting really good for out in the sun out here in Arizona? He said, it's good for ten years. It's special, this, that or another. And I said, whatever. If down the road I call you and I need new netting, can you come out, will you come out? He said, that's what we do. This is all the -- the people that designed this for me, this is what they do, you know. They don't want to do some other project, they do this kind of project here. So absolutely. I want it took look good. I mean, we're there. DAPAAH: Okay. JOHNSON: We're not slum lords, and you know, we're not running around counting TOWN OF FOUNTAIN HILLS Page 26 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 26 of 64 every last penny. We just put another 130,000 into the property. Not that the property was awful or anything, it was just we updated, brought it up to speed, you know, and everything costs so much money. So we did all that because we want to move into that property. But because of the tax laws, we can't do a thing for a year, year and half, whatever my accountant and my attorney tells me, at that point in time I could convert it. So again, I'm not here to create a problem, and you know, we belong to six HOAs, or seven HOAs, or maybe more, and there's just no issue with us. We work with everybody to make sure that we do our best and we're good neighbors, you know. But in this case, and again, I'd rather not put money into this property after putting another 130. In this particular case this is dangerous. Someone is going to getting nailed out there and someone's going to get hurt. They're going to look to me and I'm going to look to somebody else, you know, because litigation's just expensive, it's really expensive. If we can avoid any kind of problems in the future by doing this, or lessen them, then I say let me spend my money. And yeah. And I'm sorry you've got a 25 foot limit. Somebody created that out of whatever but I got an actual guy that understands trajectory. As a matter of fact, last thing I'll say . I have a nephew in the Marine Corps, he works with all the latest cannons, you know. All the HIMARS that now Ukraine has, that's what he works on. And in passing, he happen to be here in the U.S., and I said, hey, look at this. Does this sound about right? And he says, yeah. Trajectory wise, he says, yeah. I think this guy's right on. He says, I've used some of his actual -- the same kind of applications to figure out where I'm dropping those rounds. Okay. he says, yeah. This guy's for real. So again, look at his resume, that's why I hired him. If you don't have any other questions I'll stand down and I appreciate your time. GRAY: Appreciate that, Jim. So we'll open the public hearing and then if we've got any follow up questions we'll call you back up. JOHNSON: Okay. Thank you very much. GRAY: So John, before we open public hearing, just kind of distilling down to where we're actually at. We're actually reviewing an application for the northeast corner, a net up to 25 feet, right, is what's actually on the table for us, and then anything above and TOWN OF FOUNTAIN HILLS Page 27 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 27 of 64 beyond that would need to go to board of adjustment down the road. WESLEY: Right. MAYOR GRAY: And if I understood correctly, the secondary horizontal net application, so long as Jim's willing to reduce that height down to accessory structure height, does that change whether or not that's a part of this equation or not? WESLEY: Yes. Because of the setback requirements that will go with it for any other type of structure, it doesn't quite meet those, so it is falling into that golf fence. That's what he's applying for and it's not specifically covered by the code. So yes. GRAY: Okay. And if he went to more of cantilever structure, you know, there's hundreds and hundreds of examples of that around the valley here that didn't have an anchoring point within the setback, would that change and rule that out? WESLEY: Yes. That would make a difference. Again, I'm not the engineer, or the architect, or designer in any way for that, but I did, you know, try to look at it the best I could. And just with the location of where the pool is, that would be I think a challenge to have anchoring posts here that would cantilever out that far to really cover the pool like he's wanting to. Maybe it could be done but it would be a challenge. GRAY: So that's the 25 foot at about midpoint there of the pool, give or take? WESLEY: So I'm not sure exactly what you're asking but the actual -- MAYOR GRAY: Well, from -- WESLEY: -- property line runs right along the west edge of that pool. GRAY: The east to west, how wide is that side yard? WESLEY: I don't remember that at this point. I think some of the dimensions I did look at -- I don't remember what that is. MAYOR GRAY: 5 foot. WESLEY: This is an R1-6A, so it has a 5 foot side yard requirement is all it has. GRAY: Okay. WESLEY: And a 10 foot rear yard. I looked at some designs maybe of, you know, some kind of triangle shaped thing that could cover part of it, might be options. But again, it probably could be engineered but a cantilever that far, that would take a lot of engineering and probably a lot of cost. GRAY: And so if it goes forward as proposed here, there's a whole other easement issue TOWN OF FOUNTAIN HILLS Page 28 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 28 of 64 to work through with the adjacent parcel owner? WESLEY: Correct. Because again, the property line is some place right through here, and through the use and benefit easement this property owner has use of this 5 feet. It's not clear to me what all he can really do with that. It talks about pools being able to be in that easement. But when you do some other kind of structure, can that be there? Again, it's not clear to me and we need to have that clarified before we would issue building permit. GRAY: Okay. But that can be handled administratively -- WESLEY: Correct. GRAY: -- without -- okay. Okay. Commissioners let's go ahead and open the public hearing portion. Angela, do we have any speaker cards? PADGETT-ESPIRITU: Yes, we do. For my clarification, are you referring to agenda item 5 or 6? GRAY: 5, right? PADGETT-ESPIRITU: Okay. We do. GRAY: Yes, 5. PADGETT-ESPIRITU: We do. We have a Bobbie Kennamer. KENNAMER: Hi. Thank you for giving us this opportunity to tell you what our opinion is on everything. And I am all for the Johnson's being safe. Safety is extremely important to us as well. I wanted to voice my opinion on the proposed netting for the home located at 15816 East Brittlebush Lane. I've lived at 15820 East Brittlebush Lane for four years. My home is located on the east side of the home requesting a variance, actually, I'll be, I think, most impacted because I'm on the side with the 33 foot fence that they're wanting. As a Fountain Hills realtor I certainly understand that properties located on the golf course side of the street often bring a higher price. When I purchased my home the home was a fixer upper but my husband and I, because of the mountain views to the east and the west and the golf course, we decided that's the house we wanted to buy. And so we spent, gosh, I think it was close to 80,000 dollars installing professional landscaping to minimize the risk of stray balls. We also installed a pergola over the sitting area, an TOWN OF FOUNTAIN HILLS Page 29 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 29 of 64 outdoor kitchen, and planted trees along the west side of our property that's adjacent to 15816 East Brittlebush Lane to minimize balls ricocheting off our neighbor's home. It has worked. That picture you saw up there was an old picture. Now, since we've installed the pergola, and then we've installed bushes and trees it softens those hits, and there's maybe one ding on that side of the wall now that we've done all of that. So it is working. We have our grandchildren in the backyard. We have neighbors in the backyard. And we just, you know, we've just done things to minimize the risk and make it safe for us. I don't argue that the Johnson's want to make their backyard safer. I don't blame them. But I just challenge the way it's being done. I think there's other things that can be considered that would make their home just as safe. But my husband and I did our homework before purchasing our home. We realize the golf course opened up for business in 1995, and our home was built in '98, so we will not hold the golf course liable, they were there before the homes were. And we won't hold any of the golfers responsible either. We knew the risk when we bought the home. As this is the second home we have owned on a golf course we understand that there is a risk involved in purchasing a home on a golf course. Some homes have more risks than others depending on the home's location, but I feel like it's the responsibility of the potential homeowner to perform their due diligence before purchasing the home, and talking to the golf course and finding out where those homes that are most at risk are before they make their final decision in purchasing a home. I oppose the variance and the netting for several reasons. As an agent, I can guarantee you it will lower my property value. It will restrict our views that I enjoy and the main reason that we purchased our home. I don't know how a 33 foot fence couldn't limit our views in some capacity but that's just me. Research supports that over time the harsh climate causes the netting to fray and I'm ongoing maintenance is needed to prevent the netting from becoming an eyesore. The owner of this property did not buy this home as a primary residence or even a second home. It was purchased by an LLC with the intent to rent it. I know he says that he plans on moving into the home, and that's great, but that's not the reality right now. The reality right now is that that home is a rental home and we don't know how long it will be a TOWN OF FOUNTAIN HILLS Page 30 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 30 of 64 rental home for sure. What will the fence look like two years from now, three years from now, five years from now? You know, I don't know. And are there any measures that can be put in place to ensure that that will be maintained in a proper way. I took the time to talk to our neighbors about their opinion of installing golf netting. There's 16 homes, excluding the home in question, on the golf side of Brittlebush. Nine homeowners oppose the netting, one person didn't care, and the remaining homeowners were not home when I went door knocking, but I will be reaching out to them as well because I want everyone's opinion. I do know the homeowner on the immediate west side of the property in question doesn't want the golf netting, but I was not able to talk to them, you know, in person and get them to sign this form that I sent around the neighborhood. One homeowner did say these homes have been here since the 90's and this has never been a problem. This is a business decision to reduce the liability of a rental property. And that's not coming from me, that was coming from another neighbor. In summary, I'm opposed to the golf netting and I encourage the HOA and the city officials not to approve the golf netting. I've included the signatures of the neighbors opposing the golf netting and a few articles regarding golf nets, and I'll be glad to forward that to anyone, and I highlighted the areas of those articles. I'm not opposed to the owner installing a pergola over their pool or other areas that are considered risk areas. You know, there's all kinds of ways to do that. I do value safety -- UNIDENTIFIED SPEAKER: One question. KENNAMER: -- and that is why I installed a pergola and landscape screening in my own yard to reduce the risk of stray balls, not only in my yard, but it also has protected my neighbor's property from damage to their wall. So you know, I'm trying to be a good neighbor too and I don't want to start a war, but I feel like I'm entitled to my opinion too to let you know what I feel like in my home. Rick, did you have anything? KENNAMER: Yeah. We bought this as our only home. We moved here -- GRAY: Rick. KENNAMER: -- from Tennessee 15 years ago. I'm sorry. GRAY: Yeah. And let's get you -- we'll break the rules here a little bit. We'll have you TOWN OF FOUNTAIN HILLS Page 31 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 31 of 64 fill out the speaker card afterwards. KENNAMER: Thank you. GRAY: But we'll give you a couple minutes. KENNAMER: Okay. We moved here from Tennessee 15 years ago. We've lived in McCormick Ranch. I'm about to retire. We said, okay, let's downsize. So we sold our home in McCormick Ranch, moved out here almost five years ago. And just like my wife said, we bought this home because of the views. The backyards are postage stamps, they're not big. And you know, there's a see through fence so you can see the golf course and that kind of thing. But the wall in question here is, I mean, I can sit on my patio and I'm going to see this monstrosity, and it's a visual thing, and it impacts the view, and it impacts our property values, and I totally oppose it, as do most of our neighbors. KENNAMER: Yeah. We feel like it's going to -- we feel like we're kind of going to be living next door to Topgolf. That's the vision we had in our head. KENNAMER: Right. KENNAMER: But you know, I just feel like there's other ways that -- like we did, we put up a pergola. If we needed to put up other coverings over our porch areas, if there were more balls coming in there, certainly we would've done that. We would've done anything necessary to make any guest visiting our home -- KENNAMER: Right. KENNAMER: -- safe. So I mean, I understand that. I just feel like -- and the suggestion you had about talking to the golf course and seeing if they -- KENNAMER: That was -- KENNAMER: That's excellent. KENNAMER: Yes. KENNAMER: I think they would probably be open to something like that, hopefully. JOHNSON: They weren't. They weren't. KENNAMER: I guess not. JOHNSON: No. KENNAMER: But you know, I don't know. KENNAMER: But back to the study. I heard the study -- you asked, Mr. Kovacevic, TOWN OF FOUNTAIN HILLS Page 32 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 32 of 64 you asked a question about, I think there was like 50,000 rounds of golf in a year? KOVACEVIC: That was Commissioner Watt (sic). I don't -- KENNAMER: Oh, Commissioner Watt (sic). KOVACEVIC: I don't want to take credit for that. KENNAMER: Okay. It'd be John, Rick. MAYOR GRAY: Right. KENNAMER: So anyway, 50,000 rounds of golf, the course is closed 2 months a year, so that leaves 10 months to do 50,000 rounds. That's 170 rounds a day. I don't think we get near 170 rounds a day. KENNAMER: I don't know, I can't speak to that. But I did have a question though. Of the six homes that do have golf netting, are any of them on zero lot lines in Sunridge Canyon? KENNAMER: Well, no homes in Sunridge Canyon have them. KENNAMER: None in Sunridge Canyon. KENNAMER: No homes in Sunridge Canyon have this structure now. KENNAMER: Because I know I drove around looking for them because I thought there were some, but where they said they were I never saw any, and I didn't know if it was because the netting had been installed, you know, lower than the vision from the street. But all right. Well, that answers that. Well, maybe because they are a zero lot line. I mean, it's -- KENNAMER: Yeah. KENNAMER: -- kind of hard, but -- GRAY: Second rule break. Commissioner Watts? WATTS: There's been a lot of reference to the views that are going to be disturbed. So I can be sympathetic if it's a spectacular view of four peaks or something along those lines, but if it's a backyard of somebody else. So can you describe what the view is sitting in your patio in back without the fence there and what you're looking at? I don't see anything in the documents that we've got. KENNAMER: So there are rules in Sunridge Canyon that the trees can't go above a certain height, period. And so the views that we get, I have mountain views. I don't know the name of them. TOWN OF FOUNTAIN HILLS Page 33 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 33 of 64 KENNAMER: McDowell. KENNAMER: But -- KENNAMER: McDowell. KENNAMER: McDowell? GRAY: McDowell's. KENNAMER: Yeah. I can see mountains and the mountains are certainly taller than the homes, or a tree, or you know. But I just think it's going to obstruct our views and lower our property values. That beyond a shadow of a doubt, lower -- KENNAMER: Yeah. It's -- KENNAMER: -- property values. KENNAMER: Yeah. It's -- KENNAMER: Yeah. KENNAMER: It's an unpleasant looking structure. WATTS: Thank you. KENNAMER: Yeah. But we have mountain views to the left and the right, to the east and the west. So anyway. Do you have any questions for me? GRAY: No. Appreciate the effort and the conversation this evening. Thank you. KENNAMER: Oh, and where can I send this information to? GRAY: We'll have you get it to Angela and she'll get it into the record for you. We did get your petition sheet and the letter, the email, I think it came this afternoon, right? So we've -- KENNAMER: There's more signatures now -- GRAY: Okay. KENNAMER: -- then there were earlier. So okay. JOHNSON: I don't know the protocol but could I answer one of her -- GRAY: Let's finish the public hearing and then we'll call you back up. JOHNSON: Okay. PADGETT-ESPIRITU: Yes. Larry Meyers. MEYERS: Thanks for letting me speak. As you can tell, I golf. I've golfed this hole a million times. I lived on a golf course and whatever the view is that you think these TOWN OF FOUNTAIN HILLS Page 34 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 34 of 64 people have, they're living next to Topgolf because that thing will be uglier than sin. But I get his point. The problem is putting up something ugly doesn't modify a golfer's behavior. So what you have to do with one step further than Commissioner Kovacevic stated, if you put that top view up there again, you can modify the golfing behavior on the hole by going to the golf course owner and taking your 30 grand that you're going to spend on an ugly net, and buy him some trees, and get his permission to put them out on the dogleg, and that discourages your from cutting the corner. And also rather than telling people they can't use a golf club, it will force you to use a particular golf club, and you will lay up with a 7-iron instead of trying to cut the corner. These are the proper things to do rather than throw up something ugly. Sorry, it's going to be ugly. And I lived on the 7th at Desert Canyon where the balls came flying over the green, and landing in my pool, and bouncing off my cool deck, and breaking my sliding glass doors. But I bought that house knowing I was on the green of a golf course. So you know what you buy and you deal with it in a manner that doesn't affect anyone else. And I don't think that the golf course, he's not going to pay for this. He's not going to put 4 mature trees at 5,000 a piece or so out on that dogleg. But if you said, I'll pay for this, I bet you he does it because it doesn't hurt the hole, it actually makes the hole harder. Golf courses are always looking to change the perspective of the course. They change it because then they get more people, they get more customers. If you golf the thing enough times you can beat any course. I've beat that course. I've cut that dogleg when I was young. I would never cut it now but people don't know what they can't do and they try to do it. I get it. So I think the natural course of event in order to modify golfing behavior is a more reasonable thing to expect then to expect your neighbors to look at 25 foot high poles in a town that only lets you have a 12 and a half foot flagpole. Think about that. This town lets you have a 12 and a half foot high flagpole but you're talking about a 25 foot, and maybe a 33 foot pole with a net on it. Sorry. Ugly. Thanks. PADGETT-ESPIRITU: No one else. GRAY: Any more speaker cards? Thank you -- TOWN OF FOUNTAIN HILLS Page 35 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 35 of 64 PADGETT-ESPIRITU: Nope. GRAY: -- Angela. PADGETT-ESPIRITU: Yeah. Sure. GRAY: John, I'll bring you back up first. JOHNSON: I've requested a speaking. PADGETT-ESPIRITU: Oh. sure. As the applicant? JOHNSON: May I address one issue? GRAY: We have to close the public hearing first and then we can do the back and forth again. JOHNSON: Oh, okay. JOHNSON: I'm Carissa Johnson. Thank you very much for your time. First, I would like to address Ms. Kennamer's comment that we bought this as an LLC. When you purchase a tax deferred exchange, the money goes into an LLC, a title holder that's an independent party until you complete the exchange. And so the property is now in the name of Jim and Carissa Johnson. It is not under an LLC. It was for a short period of time. As to whether I bought this to have a rental? No. My mother has severe dementia, she lives in Scottsdale in Belmont Village. My sisters lives in Cave Creek and she just retired. And so the reason for us buying this home and spending at least six months a year was so when my sister travels as she retires I will be there to look out for my mother. So respectfully, if I could take possession of that home this winter and not have IRS situation, I would take possession of the home. We could've rented the home as is easily with the way that it currently looked but we put the money into it so there would be a home that I would want to spend a good deal of time in. And I will say the first thing that we did when -- I was down there four months, Jim was down there two. When we started getting a lot of balls, and people were climbing up on our fence, and they were, you know, trying to look for the ball, I would, you know, we would talk to them. And the consistent comment we got from people, the golfers, is they're trying to cut the dogleg because it's easy to do if they can make the shot over the home. We live on a golf course. We are not golfers. So as we are not golfers, we assumed that the situation at this home would be similar to what we have, and we get TOWN OF FOUNTAIN HILLS Page 36 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 36 of 64 very few balls in our yard. It just doesn't happen. We relied on our realtor and we replied (sic) on the seller to give us accurate information about the property. The realtor did not disclose it and the seller, it's not on any of his disclosure papers. We were only given two hours to access the property and our issues with the agent and the seller are our own. But I can tell you we did do our due diligence, and it wasn't until when we got access to the home, we realized what a problem it was. The balls hit in the backyard on the west wall anywhere from a foot off the ground all the way up to their roof. And the pictures are what was taken from the time we purchased the home to just presently, or actually about three months ago. And they are not old pictures, they were new pictures because when we bought the home, the seller had illegally painted and patched the neighbor's home. And when we started talking to the neighbor to the west of us, they thought we had done it. We said, no, we didn't do it. To further address the duplicitousness of the seller, there were a lot of cracked tiles on top of the roof and we said don't even replace them, don't even worry about it, we're going to have a roofer put on all new tiles. And we just asked that if our roofer could have access to the roof and so he could, you know, get us information as far as what it would cost. As part of the contract the seller asked for a longer close of escrow and we asked for time for our contractors to have access to the property. It's in writing. It's in the contract. And the seller refused to allow our roofer access, and the painter, and the other contractors. He was in violation of the contract. But when you're in a 1031 exchange, you have a finite amount of time to complete the transaction, so we were stuck. We had to go through. The first thing Jim did when we started realizing what a problem it was, was started getting bids on pergolas, cantilevered structures. We were told very clearly by two engineering firms that there is no way to cantilever something over the pool and so that is completely impossible. And Jim has spent I don't know how many hours on talking to various contractors about things we could do to mitigate this. I was sitting just by the hot tub, which you can see is just -- it's actually on, like, the south side of the pool, and a ball hit the neighbor's wall to the west so hard it ricocheted over and it put a half an inch divot in our wall. And I was about three feet away from this. And Jim was doing something and he came around the corner, and my eyes were like TOWN OF FOUNTAIN HILLS Page 37 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 37 of 64 this, and he said, what happened. And I said, that divot, I said, right there. I was sitting there and then it put that divot over there. So the speed the balls come is phenomenal. And I never would've thought a ball could come over a roof, and hit low, and have such a high impact, but it does. The wall now looks like Fallujah. And our tenants are really great people, and I know they would welcome anyone to view the backyard and see what the wall looks like since we purchased it in February of 2022. So just the amount of damage in that time is unbelievable. The tenant has collected over 100 balls. I lost count with how many balls I had in the four months I was there. So we have tried any number of things. Second thing Jim did was call the golf course owner about, you know, he wanted to just have him come over, look at, you know, what was happening. He refused. He has been intractable. He has been completely difficult to work with and will not give any credence to our story. He said it's absolutely impossible that you are getting the number of strikes you are saying. Our painter was there outside for about week and a half, he said they were getting at least six balls a day and he said they were all over the yard, which I can attest to. I was in the pool when one splashed in the pool right next to me. So had we known the severity of the problem, I can assure you we would have not bought the home. The home we were trading from was considerably more expensive then what this home was and we had the ability to go up at least 250, 300,000 dollars in purchase power to buy a home that would be, you know, to our liking, but we didn't know because it wasn't disclosed. So I can tell you that I am sorry that, you know, it's caused a stir in the neighborhood, but it certainly was not our intention. So let's see. Okay. Yeah. And this report that this gentleman put together, it's very complete, but he did this report assuming that these are errant shots, not people trying to cut the dogleg. So when you count errant shots, and people making accidental shots, and people deliberately trying to cut the dogleg, you know, it's far higher number than you could imagine. And if we thought the problem could be solved with 30,000 dollars' worth of trees, we would be happy to suggest it to the owner, but I don't think he would be willing to entertain anything. He's a very difficult person and will not work with us. Furthermore, for the tenant to the east of us, that little piece of the wall that faces north, TOWN OF FOUNTAIN HILLS Page 38 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 38 of 64 there's a very large tree there, so they can't see the mountains from, you know, where that tree is. So yes, they might lose a portion of their sky view, but they wouldn't lose any of their mountain view because when you're sitting there you're looking at the tree, so they wouldn't be losing a view, just the sky. And in our home where we are, where we have maybe two to six balls a year, they all come in one corner. And so I had a daughter that was sick and I was gone for about three months and helping her out. And I came home and Jim said, hey, I put some netting out there in that one little area where we have a wood deck. And he says, what do you think? And I said, what do you mean there's netting? And he said, can't you see it? And I said, no. I can't see it. So granted, our backyard is fairly decent size, but I had to walk halfway across the yard before I could actually even see the netting. So it is not our intention to put something up that is unsightly. We just would like to be safe and I would like to be able to have my mother over in whatever limited time she has. We were sitting outside in the covered part of our yard, which is actually to the east of our pool and we were sitting out by the barbeque area, went inside and we were doing something, and literally five minutes later we heard a thwack. And it hit the -- and I believe one of the pictures is in the report -- it hit the wall about a foot from where we were standing on the column by the barbeque court. So we would love to put up pergolas, we would love to do cantilevered structures. Unfortunately, because of the width of the yard in that area, we have been told it is completely impossible to put a pergola or to cantilever something, and that was the first thing that we looked into. So we have put in every effort we could to try and find something that would be acceptable. But again, for the record I would like to state this is going to be my primary home. We intend to spend at least six months and day in Arizona versus Idaho, so this is going to be our primary home and we may spend longer than six months here every year. I love this home and I just would like to be safe in my backyard. GRAY: Thank you. Mr. Stizza, did you pull a card? STIZZA: Thank you. I didn't put these in (indiscernible). PADGETT-ESPIRITU: Okay. TOWN OF FOUNTAIN HILLS Page 39 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 39 of 64 STIZZA: Happy holidays, everybody. So thank you for going over this subject and I have a couple questions. Was the expert for the applicant, did they actually come up with any other solutions besides this? They said they looked at landscaping and other possibilities. Again, this is starting to become a density aesthetic problem in Fountain Hills and these type of structures, and anything else that is similar. And we should probably try to do everything we possibly can including the town to try to mediate this if it's possible. That was a great idea. And possibly spend your 30,000 dollars, or whatever it's going to cost, to naturally try to enhance this, or at least help with this problem. You're not going to fix it completely, I mean, regardless. But this netting's going to be ugly regardless of what the applicant says, it's going to look terrible. And it's going to look terrible for them and before this becomes a neighbor versus neighbor, which it sounds like it's going to be, obviously, there is already some talk of legality, so hopefully you can avoid that. And hopefully you can continue this until they come up with a better solution with the town's help, and looking at every possibility, you know. So that's it. So thank you. GRAY: Thank you, Mr. Stizza. Okay. Let's go ahead and close the public hearing and bring John back up for one final round here. And Jim, we'll bring you up too if we need to here in a second. So in conclusion, pre motion, we're still looking at 25 foot vertical net measured from the backyard and a horizontal net at the height of accessory structure but with a easement encroachment issue yet to deliberate. WESLEY: Correct. What we had here was we'd need either the adjacent property owner to agree to the poles being within that easement area or they had to find a way to do the poles that are on their own property, one of those two. I put in here 15 foot. If the applicant is willing to go down to the 12 or 11, that's even better. The lower the better on that net. GRAY: Okay. And because this is special use permit, this isn't considered by right, correct? TOWN OF FOUNTAIN HILLS Page 40 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 40 of 64 WESLEY: Correct. GRAY: Commissioners, open floor. Commissioner Watts? WATTS: I'm still not clear on is it above finished floor of the slab, is it grade and what the fall off is from the grade in the backyard to the fairway, basically, is there a four foot falloff is it a one foot and -- GRAY: It's eight foot. WATTS: It's eight feet? GRAY: It's a tiered retainer. WATTS: Oh, didn't see that. GRAY: So that's where I'm struggling too. WATTS: Yeah. GRAY: Is it's really a 40 foot from native grade it's a 40 foot structure and I -- JOHNSON: No, it's not. JOHNSON: From the golf course not from the -- GRAY: From golf course it's 40 foot roughly, give or take a foot or two. JOHNSON: But the structure itself isn't, I mean, are you talking about a 40 foot pole? GRAY: Your structure's 33, but from native grade from -- everybody's talking about putting in trees. Well, a tree has to make up eight foot of height difference before we even get to zero, right? So really from, you know, from let's say from a golfer's perspective, the top of these poles are 40 foot. Is that an incorrect interpretation? JOHNSON: Well, it's (indiscernible). WESLEY: Chairman, from what I'm hearing, right outside this lot to be on the golf course, that sounds about correct. From where they're shooting from the tee box, I don't know what the grade is there. GRAY: Well, yeah. I mean, it doesn't matter, right? From the course, from the bottom of the retainer it's 40 feet plus or minus. And that's where I struggle. I mean, I have all the appreciations for the safety, and I have the appreciation for the precedent of the net structures. I've got them all around me. I can't say that they actually are or aren't an eyesore. I don't have any right next door, so that's not a -- it wouldn't be fair to comment on. TOWN OF FOUNTAIN HILLS Page 41 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 41 of 64 I struggle with the overall height though. And I appreciate the statistical analysis. More than the analysis I appreciate that if we're cutting the corner, the analysis is probably understating. I think that that's an important thing for us to factor here. I guess I'd be curious what advantage is the net if you limit the overall height of the net to no higher than the highest point of structure on the house, you know, what's the height of the chimney on the house? Is that a more aesthetically appealing solution that still mitigates safety, or is it of such diminished value at that point that it's erroneous? Because really if we compartmentalize the two things we've got the horizontal net, that's going to take care of the overhead safety, right, of people in the pool and people side yard. We've got the corner net, which is going to protect the backyard. So that extra whatever it is, 10, 12 feet is really talking about protecting shingles. And that's inherent with living on a golf course, in my opinion. So I'd like to deliberate on that a little bit. WATTS: I agree with you on the tree issue. There's a tree on the 3rd hole at Desert Canyon, it's a eucalyptus, and it probably goes 25, 30 feet. And that 3rd hole, you can go right over top of that tree. So I don't know -- GRAY: I go left of it. WATTS: You go left, I go over. So you know, but the point is that regardless, even if it was another five feet, the apogee of my drive, 10 degree driver right over top of it, and I'm going to hit your house. So I don't think you can put trees in and I'm not a fan of the net. It's kind of a conundrum at this point. So -- GRAY: Commissioner Corey, any thoughts? COREY: No. It just goes back to the options that I heard earlier with the cantilever, or like I mentioned before, the birdcages. And I guess maybe that's a question for John. Have you heard of any applicants requesting a birdcage or is that something that they're not required to get a permit for? Because I think that could be a good alternative here and it would match the height of the roof and it would cover the area that they would be in around the pool. WESLEY: Oh, Commissioner Corey, that has not specifically been discussed and I guess I'm not familiar enough with that idea exactly. I can imagine a birdcage so basically it nets around and over the pool we would still be here with a similar discussion particularly with regard to the pool for a structure, or accessory structure in the side yard TOWN OF FOUNTAIN HILLS Page 42 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 42 of 64 where it could go, and how it could fit. It wouldn't meet any code requirements just to be an accessory structure, and so I'd really have to consider as a golf net, we'd be here with the SUP anyway. And again, with that pool being so close to that west property line, having room to put that on their property versus getting onto the neighbor's property would still be an issue. JOHNSON: Regarding the birdcage, that was the first thing I researched. I used to live in Florida and that would've been the first thing that I would've done because I love those, they're fantastic. But we have not been able to find a single vendor that can put one in, they're all back east. So if anyone could find someone -- COREY: Okay. JOHNSON: -- that would do that, that would absolutely be our first choice of action. It would completely protect us. It would be -- COREY: Um-hum. JOHNSON: -- less unsightly. But we have not found anybody in Florida (sic), and I have called South Carolina, I've called Florida I've called -- I cannot find anyone in Arizona that will do them. But that would definitely be something -- COREY: Thank you. JOHNSON: -- that would be one of my highest priorities. COREY: Okay. GRAY: And we'd have a special -- COREY: Well, it's good that -- MAYOR GRAY: -- use permit for a birdcage. COREY: -- you looked into that, yes, but that could be an option. It's unfortunate that you weren't able to find anybody. But okay. Thank you so much. GRAY: So I don't think we're talking about the -- the encroachment issue aside, the horizontal net isn't really a visual obscurance to anyone, right? There's no -- yeah. We still need neighbor buy in, we still need to work out the encroachment piece there, but that net over top is -- WATTS: It doesn't (indiscernible) -- GRAY: It's low impact. WATTS: -- at that height. TOWN OF FOUNTAIN HILLS Page 43 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 43 of 64 GRAY: Right. At 12 feet, 11, 12 feet, that doesn't affect anyone. I don't think that's the issue. It's the visual of the real safety net. So are there any questions for the applicant, Commissioners? KOVACEVIC: I have a question for John. Of the SUPs approved for golf nets in town, has one been approved for a side yard or are they all for the rear yard abutting the golf course? WESLEY: So Chairman Commissioner Kovacevic, I didn't go back and look at them. Most of them predate me. Of the ones that I'm familiar with I know at least one is a side yard. GRAY: There's several on Desert Canyon that are this type of configuration, or at least an angular configuration on 14 in particular on the left side. WATTS: I do have a question about the side yard though. And I just noticed that the hatch marks for where the netting is going to go look like they went corner to corner on the house. I know it doesn't go all the way over the neighbor's house on the west, but it doesn't go out and cover the entire pool. How far out are you going to carry that netting? JOHNSON: Can I ask, who are you asking? WATTS: I'm asking either you or John, one of the two. JOHNSON: Well, here's what we're doing. Here's what we're trying to do. Okay. This one here, the way he's drawing it, it just goes over the pool, over the hot tub, straight across. Okay. Up that far corner up there, if we can get -- if we're allowed to put a pole up there that would be in this easement we'll have it in the corner at 45 and across to the corner of our property, our house. So effectively it would cover that entire area. WATTS: Okay. So the representation we've got now isn't showing that 45. It's showing corner to corner of the two houses, basically, straight across, and the exposure of the pool at the deep end is what I'm questioning. So you're proposing to amend this to go to the corner and then come back to the corner of your house on that 45? JOHNSON: Yeah. And that is part of this whole thing. We have it in here somewhere, coming off on the 45. I'm not exactly sure where it is but I can find it. I know that that -- the guys that actually build these things, I asked them to do a recent plan and that was the one that shoots across on the 45. I think, John, you have some -- TOWN OF FOUNTAIN HILLS Page 44 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 44 of 64 WESLEY: Right. And that's what this one is, it's the most recent one that I received, and maybe it is a little different then what ended up in the packet, which maybe was an earlier version. But this, I show it going from the angle and covering most of that deep end. WATTS: So there isn't a -- JOHNSON: It essentially covers that whole area. There's a little area it doesn't cover but essentially that whole area. The question as to what the relevance was of the 40 feet from the golf course. If you're a golfer you see 40 feet. GRAY: Well, just looking from a neighborhood perspective, that -- JOHNSON: In other words, if you're the neighbor across the way? GRAY: Yeah. Anybody who's got a visual back to the house, you know, would effectively see a 40 foot tall -- JOHNSON: And I wouldn't -- MAYOR GRAY: -- structure. JOHNSON: -- agree. Possible trajectories shows an overhead view of our yard and you'll notice that there are trees along there. So if you're the guy across from me, you know, 100 yards, or 125 yards, whatever it is across from me, there's already trees there and there's another smaller tree that's growing there. Our neighbors to the east have trees that are on the golf course property so the effect wouldn't be quite as dramatic or as drastic as the word 40 feet because that first 8 feet is covered. Also in the corner of the neighbor to the east, we have a tree in that corner, and that tree is ten feet tall, I would suggest. I forget. It's probably 10 maybe 12 feet tall. So the first 12 feet of whatever view they might have looking out that corner, that's gone because there's a tree there. I know this is so complicated. I am sorry to bring this to you but I don't know what else to do. If there's an easier way to do this, somebody wants me to plant trees in the golf course. You know, I've talked to this guy and that's not happening. I'm just trying to protect us and I think from the experts I've got, and again, if somebody else has an expert that you've talked to and spent the time, and you haven't even read the report, okay, if you've got somebody, bring them forward and let's work together. UNIDENTIFIED SPEAKER: I am an expert. I've golfed that a million times and I could TOWN OF FOUNTAIN HILLS Page 45 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 45 of 64 tell you, if you don't modify the behavior of the golfers off the tee box -- JOHNSON: And I thought -- UNIDENTIFIED SPEAKER: -- you will -- JOHNSON: Were you here when I told you about the conversation I had with him -- GRAY: Jim -- JOHNSON: -- as far as -- GRAY: Jim, let's -- JOHNSON: -- changing it. GRAY: Jim, let's have you address the Commission. JOHNSON: Sorry. GRAY: Well, I think, you know, it's a simple issue that becomes complex very quickly when you consider all the adjacencies and the stakeholders. I think we all agree that there's a safety component to be dealt with here. I think we all agree that, you know, whatever happens with the neighbor to the west, that has to be worked through administratively. I don't think there's objection for the horizontal net on the west side of the house. If we make a motion here tonight I personally object overall height of the net but I would be in favor of a recommendation that would limit the overall height of that net to the height of the tallest structure on the property. So Commissioners, if there's no more questions I'd like to call for a proposed motion -- JOHNSON: Can I make one more comment? MAYOR GRAY: -- or language. I'm sorry. We can't. WATTS: One more comment. If you look at the view of the house itself, I'm not so sure that the peak of the roof isn't taller than the chimney area. So I would amend what you said to the maximum height of whatever that is because I think there may be an optical illusion there if that -- MAYOR GRAY: The chimney -- WATTS: -- chimney's not within three feet. So -- MAYOR GRAY: Yeah. WATTS: But it could be significantly lower. So I don't want to identify the chimney as the high point. TOWN OF FOUNTAIN HILLS Page 46 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 46 of 64 GRAY: I guess I'm in favor of protecting occupancy of the backyard, obviously, but I don't think we have any obligation with, or I don't think the spirit of our zoning text was really to protect structure. I think that that's inherent with location. I absolutely appreciate, you know, the intent of, you know, Sunridge Canyon engaging in, you know, planting some deterrents, but we're not going to rely on that here for this. And we're also not here to adjudicate the overall aesthetics of that, that's really with the HOA. So I think we have to keep our recommendations, you know, rooted in the zoning, and I don't think we can take it much further than that. So Commissioners, any final comments or a motion please? JOHNSON: Can I make a final comment? GRAY: Sure. JOHNSON: Okay. I don't care about the structure. Okay. I replaced the roof. I'll replace another roof. Okay. I'm worried about that area in the north, what is that, the northeast corner there where balls come through there and hit in that corridor right there in the slice of the backyard that faces right out on the golf course. That's what I'm trying to protect. I'm trying to protect anybody walking out their backdoor, and looking at the view, and hello. GRAY: And -- JOHNSON: And but as far as it hits the house, good enough. You want to hit my roof, good enough. If we wanted to do something for the structure we would put that -- we would go in the easement area on my east side of my house, and we would put the net up there, and then across the corner. That would protect my roof. That would probably keep most of the balls from even arching over just because of the trajectory. So if it's an issue of the house, I'm not so worried about the house getting dinged, I can fix it. I'm just worried about somebody coming over, and if the net's too small, you know, I don't know what good that's going to do because I've had balls hit on that far corner just by the pool on one of the posts, just arch over, and just bang right there, and it hits that stucco, and puts a divot in it. The only thing, I'm just worried about people. GRAY: Well, and I guess in my way of thinking, this is where the creative landscape design comes into play, and the combination of components, you know, deals with the TOWN OF FOUNTAIN HILLS Page 47 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 47 of 64 overall problem, you know, not everything necessarily with that fence. So in any case, our motion here tonight has to be limited to a 25 foot maximum height if the recommendation to approve is ultimately made. Again, I'll just restate I personally would be in favor of limiting the height to the height of the structure, and then, you know, what happens with landscape design thereafter to further mitigate, happens with landscape design. But I think that that's a balance between the spirit of our ordinance and the safety that it looks to bring in, and also providing some balance with adjacent residences, which you know, almost inevitably are never in favor of these things. So a motion? Commissioner Dempster? DEMPSTER: I also have a concern with safety but looking at aesthetics, et cetera, but I would make a motion for a horizontal for the northwest corner, a horizontal net not to exceed 15 feet. I don't know what photo this is because we had two photos of two different shapes. I'll certainly just see. Actually the photo that's up that covers more of the pool, and I guess that you would have to work with the HOA to work on that easement area for poles. GRAY: And the village, or and the municipality. DEMPSTER: And the -- GRAY: Well, it would be with the town of Fountain Hills and the HOA, right? DEMPSTER: Well, the easement is with the HOA, correct? WESLEY: The easement is with an adjacent property owner, it's with the -- DEMPSTER: With the -- WESLEY: -- property owner. DEMPSTER: -- property owner? WESLEY: Yes. GRAY: But the setback is still Town of Fountain Hills, correct? WESLEY: No. GRAY: So it's all with the HOA then? WESLEY: So if we're talking about the area between the two houses, it's the two property owners. There's an easement there between the two property owners that's part TOWN OF FOUNTAIN HILLS Page 48 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 48 of 64 of the plat. GRAY: I thought that there was a Town of Fountain Hills administrative component to allowing structure in that easement as well. WESLEY: No. MAYOR GRAY: Just for the HOA? WESLEY: Correct. GRAY: Okay. JOHNSON: I have one final note. Because we're not there, we don't have access to our homeowner's names and information, and if we did, we would be happy to talk with them and explain what our issues are. I understand Ms. Kennamer, she's the neighborhood representative and picks up the ballots, and she has access to information we don't have access to. So we weren't able to contact our own neighbors and see if they're having similar problems, and if they have come up with ideas that might work. But I do assure you, we have exhausted every means you can imagine as far as cantilevers, and pergolas, and sunshades, and netting, and we have put a lot of time into this. But unfortunately, we don't have the same access to our neighbors that our neighbor to the east has, so she has the ability to contact people and -- KENNAMER: I knocked on doors. JOHNSON: -- and -- KENNAMER: I didn't use any list from the HOA or anything else like that. I knocked on the doors with my feet and my energy, by the way. GRAY: Okay. Why don't you continue with your -- DEMPSTER: So I -- MAYOR GRAY: -- motion please? DEMPSTER: All right. I will restate. I'll make a motion to approve one net on the northwest corner no higher than 15 feet and the applicant will have to work with the homeowner and the HOA with the easement. GRAY: Is that full motion? DEMPSTER: Um-hum. WATTS: That's a horizontal net? TOWN OF FOUNTAIN HILLS Page 49 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 49 of 64 DEMPSTER: Horizontal net. WATTS: Okay. GRAY: So motion on the table is a horizontal net not to exceed 15 feet in overall structure height on the northwest corner of the property and you are not putting the vertical net into the motion? DEMPSTER: Correct. GRAY: Commissioners, a second? WATTS: I would second that. COREY: Sorry. Can you just clarify? So that net is the one that's in the backyard toward the golf course? GRAY: It would be in the side yard, in the west side yard. So the motion on the table, which was just seconded by Commissioner Watts is for a horizontal net only in the side yard, on the west side yard with an overall structure height not to exceed 15 feet. The vertical net on the east side of the house was not included in the motion. And that was seconded by Commissioner Watts, which will take us to roll call voting. Angela, please? PADGETT-ESPIRITU: Chairman Gray? GRAY: Nay. PADGETT-ESPIRITU: Commissioner Dapaah? DAPAAH: Nay. PADGETT-ESPIRITU: Commissioner Corey? COREY: Nay. PADGETT-ESPIRITU: Commissioner Dempster? DEMPSTER: Aye. PADGETT-ESPIRITU: Commissioner Kovacevic? KOVACEVIC: Aye. PADGETT-ESPIRITU: Commissioner Watts? WATTS: Aye. PADGETT-ESPIRITU: Okay. KOVACEVIC: Was it three-three? GRAY: It's three-three. TOWN OF FOUNTAIN HILLS Page 50 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 50 of 64 PADGETT-ESPIRITU: Three ayes and three nays. GRAY: John, just for clarification of public and most of us too, three-three, what does that carry forward to council? WESLEY: That carries forward basically no recommendation, essentially. WATTS: Chair, I've got a question for John while you're there. There's nothing that restricts the applicant taking this approval if it goes forward, which I guess it didn't, but going back to the HOA. My reluctance is the HOA. They kind of control that entire environment, and if it came back, then the applicant could come back with a request for the 33 feet for instance. Is that a fair assumption? WESLEY: State that again. WATTS: So this would be one special use permit but he could always come back after getting a approval from the HOA for the second special use permit, which would be the vertical fence to the northeast. WESLEY: So -- WATTS: So it's like plan part two. WESLEY: Right. So he's made that application now, and basically that's been denied at this point, and so he can't reapply for the same thing for a year. WATTS: But it wouldn't be the same thing because it would be half of what the original application was. WESLEY: Well, he's applying to you for 25 feet. WATTS: But if he came back for 33 feet -- WESLEY: He can't come here for 33 feet because the ordinance doesn't allow anything more than a 25 foot. WATTS: Okay. Yeah, no. My reluctance is still the HOA, you know. It's what it does to everybody else. GRAY: Okay. John, let's take a five minute recess between these two agenda items, if that's okay. WESLEY: Okay. GRAY: So we will reconvene -- let's just say 8:05 we'll reconvene. (Recess from 8:02 p.m. until 8:13 p.m.) GRAY: All right. Let's go ahead and call the meeting back to order. TOWN OF FOUNTAIN HILLS Page 51 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 51 of 64 Mr. Wesley, we shall proceed to agenda item number 6, a public hearing consideration and possible action on a long awaited ordinance modifications to 23-01, amending Chapter 1, Introduction, Section 1.12, Definitions by adding definitions related to detoxification and drug treatment facilities; amending Chapter 12, Commercial Zoning Districts, Sections 12.02, 12.05, and 12.06 to add uses for detoxification and drug treatment facilities; Section 12.03 to amend group home to community residence, which is clean up from a previous agenda; and amendment to Chapter 18, Town Center Commercial Zoning District, Section 18.05 B to amend group home to community residence. WESLEY: Chairman, I think that was the whole report. Any questions? GRAY: One breath I think. WESLEY: Okay. Commissioners, I'll try to make this fairly quick. We have discussed this multiple times in the past as we have discussed, and ideas behind how we should or shouldn't, could or couldn't handle uses of detox facilities and drug treatment facilities. You've had a draft ordinance to look at, we've received comments over the last couple of months. I have taken those comments and revised the ordinance for your consideration. Tonight it's now been published as a, or posted as a public hearing so you could actually take action tonight if you are ready to, or we can continue to discuss and amend as we go forward. But the ordinance that you have in front of you provides definitions and regulations for detoxification facilities outpatient, detoxification facilities inpatient, substance abuse or addiction treatment centers, and then substance abuse or addiction treatment centers lodging, as well as the amendments to the group home in the residential sections that we missed doing when we did that earlier in the year to redesignate them as community residences. So with that I'm going to go quickly through the ordinance as it was included in your packet. So the definitions, these two definitions remain unchanged as they were presented in the previous discussion for the detoxification facility outpatient and inpatient. Where I have made additions, so using this one as an example, we currently have a definition in our ordinance for a treatment center, so those are the letters just in the standard black font. Anything that was in the previous ordinance or that is in the existing TOWN OF FOUNTAIN HILLS Page 52 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 52 of 64 ordinance that has been removed has a line through it. The full cap black bold letters are language that were in the draft ordinance that I sent to you, and the full cap red are the change that's been made based on the discussion. So we have captured here all the things that have happened historically. GRAY: And we do appreciate that. WESLEY: Okay. GRAY: Very concise. WESLEY: And so this was the change that I picked up from you, Chairman, last time to add that addiction piece in there for little bit more clarity, and that carries through to the substance abuse or addiction. There was discussion about the 30 to 90 day previously. I had some idea why I thought that was important when I originally drafted this six months ago and I tried to resurrect what that was, and I couldn't. So -- GRAY: I just remember we asked to pull it out on the basis that intense detoxification is typically far less time -- there was far less occupancy for time -- WESLEY: Right. GRAY: -- time as an occupant. WESLEY: Right. And then with regard to the substance abuse or addiction treatment center, based on discussion added some of the separation requirements into the statement here that were in other sections to make sure this use didn't get too many clustered together. And then we move from there into the other uses. So for the detoxification center outpatient, it's a special use permit in the C-2 district, and with that location, here are the standards that go along with that. Again, adjusted the indoor activity and waiting, took out that last phrase because there was some concern that it might imply that you could do the outside waiting. Added in the smoking area and the market study. Added in 1,000 feet from school, church, library, and on the residential included it to be both the district or use. And then from there we move to the detoxification center outpatient and inpatient, that's special use permit in the C-3. All the standards are the same for each of these. And then we move to the substance abuse or addiction treatment center lodging. This is a C-3 only, and again has those standards that go with that. And then we have the changes TOWN OF FOUNTAIN HILLS Page 53 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 53 of 64 to allow -- just changing the terminology from the group home to the community residence, so that's the same. So I wanted to, again, go back just quickly and look at the differences here. So substance abuse or addiction treatment center C-2 or C-3 by right, must be at least 2,000 feet from any other detoxification substance abuse center or transitional community residence. So that does keep them from clustering. It limits how many you can get in any given area. And again, C-2 is the Town Center area. Down there's C-2, Target area and some of that other along Shae, and then our only C-3 area is the area east of Saguaro, Colony, down to Desert Vista kind of area. And then when we look at the other ones, the detoxification center outpatient, which would be C-2 or C-3 with an SUP, these are the three areas approximately where one of those could go. And again, given separation requirements, you couldn't get more than one in any of those areas. And then the detoxification center inpatient or substance abuse addiction treatment center lodging, which is a C-3 with SUP, this is the only area where you could potentially have one. So very limited areas where these could go. And so staff recommends approval subject to any further comments, questions, suggestions for the modifications this evening, and certainly if the Commission needs to continue this for further discussion, I'm glad to do that also. Any comments or questions you have for me at this time? GRAY: Commissioners? Commissioner Watts? WATTS: So we're opening the door for three facilities to be able to relocate into town, or locate in town? WESLEY: So there's the possibility for up to three detoxification centers outpatient, and those are the three locations. WATTS: Okay. A comment on some of the wording. The smoking the furthest point, I think I'd feel more comfortable to eliminate the ambiguity about that and refer back to an Arizona Revised Statute that says you have to be so many feet, a minimum of so many feet away from a given door so that there's something more specific that we can talk about. TOWN OF FOUNTAIN HILLS Page 54 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 54 of 64 WESLEY: Okay. WATTS: And then I didn't see any reference in there for the requirement for insurance yet. Did I miss that? WESLEY: No. I did not include that in here. I guess I didn't pick that up as a strong enough suggestion from before to include that in here. WATTS: I think we had discussed talking to Grady about whether or not it was applicable, and he had turned to the town attorney to see whether or not in this particular case, because it's a little bit different than the Sober Living Homes were. Though I'm not sure. Tell me what your feeling is about the insurance requirements. WESLEY: I think there are a lot of businesses that operate in town and we don't care what insurance they have or don't have, and most businesses are going to have insurance because it protects themselves. So I personally don't see that the town benefits from that but I could understand the concerns that people have had, and if the Commission Council wants to include them, certainly will. WATTS: Um-hum. I can certainly see where you might be accused of some sort of discrimination between business to business if you required insurance of one and not the other. I just haven't figured out in my head as to what the consequences could be for us. I assume most responsible businesses, whether they're detox or whatever, are going to have some sort of liability insurance. The minimums are what concern me more than anything else. So just a comment again. WESLEY: Sure. WATTS: Thank you. WESLEY: But again, I'm sorry I didn't pick up from as I went back and reviewed things that there was a strong sentiment for the insurance, but certainly glad to include it if that's the Commission's direction. GRAY: I think the other angle that we took on insurance with the residences was additional insurance, right? WATTS: It was. GRAY: So I'd be in favor of that side of the conversation staying alive as this progresses theoretically here tonight. You know, setting limits or minimums, I don't know if that's getting into the weeds probably for us here, but I think taking a look at the legitimacy of TOWN OF FOUNTAIN HILLS Page 55 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 55 of 64 additional insurance, whether that's town proper or any adjacent stakeholders, I think is probably still a relevant question, or one that we should be asking anyway. John, I had a couple just notes working through the draft language, which overall I think this looks really good. I think this is a document that's really a culmination of months and months of research, and parlays nicely on some of the previous agenda items that we've addressed. So I certainly appreciate that and want to recognize it. A couple of the notes that I had in my redlines of the redline, if you will. Section 0, and I guess this is really pertinent across all three sections. In 05, market data demonstrating the need for services, need, sorry, market data demonstrating the need for services for Fountain Hills residences. I wanted to see if we could enhance that slightly by stipulating that a discount for existing capacity would need to be applied. So if market study data, market data shows that there's a need for, I don't know, I'm going to make it up, 20 visits or 20 episodes a month, and there's existing capacity for each, you know, whatever, you know, whichever those three styles we're looking at, if there's existing capacity for 12, then there's a net 8, and that's what would be carried forward. And I'd also like to make sure that that 05 is rigid enough that it's not suggestive that it's actually a threshold you have to pass. And I think that that's really important to address Commissioner Corey's lens on this, you know, and need for the community in making sure that we have a pathway for that need. And then also the other side of that, which is, you know, services don't generate, you know, any revenues, they're revenue draws under state law. So I think it's really important for this, and then I think maybe in a more macro look at this, you know, anything that's special use that's classified as nonrevenue generated maybe should be looked at under, you know, from the same lens. So maybe that goes in agenda item 7 or 8, but so that's one across all categories. 06, when we get into the distances just for continuity across several places in our ordinances, just want to make sure that that is interpreted as property line to property line. I know we've had some different interpretations of that, or maybe not from the town but as people, you know, read their own version of the ordinances, sometimes that comes into question, so if we could stipulate that. And that would be common across all three sections. TOWN OF FOUNTAIN HILLS Page 56 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 56 of 64 And I think are the those are the last few comments that I have on this. Commissioner Dempster? DEMPSTER: Thank you. John, I was doing a little research on the smoking piece and the state law states 20 feet from the entrance, but it also touches upon e-cigarettes and vaping. And when the law was put into effect it looks like it did not include those. And so I don't know if it would be advisable to include that vaping or e-cigarettes in our verbiage to cover that piece as well because they talk about it in separate categories. So I'd like to see e-cigarettes included in smoking, that piece. And I stumbled upon, I was doing research too about the number that you provided us with the list of treatment facilities, and I came upon a Fountain Hills opiate detox center on Palisades that's open 24 hours. I don't know, are you aware of this? Are you aware of that? GRAY: No. DEMPSTER: That's online. It appears to be up across from Walgreens, where Sipps and kind of in between Walgreens and Thunder Ridge subdivision. So that popped up. And I did come up with -- there are two lists of inpatient rehab centers in Arizona with many more that were on your list, and then list of drug addiction treatment centers in Maricopa County that had several more with various levels of inpatient assistance. So I'm happy to share those. But I do thank you for all the work on this incorporating all our feedback. GRAY: Commissioner Corey, any thoughts? COREY: Nope. I'm good. Thank you. WATTS: One more. GRAY: Oh, sorry. Commissioner Watts? WATTS: To Commissioner Dempster's notation about vaping and e-cigarettes. I thought the latest update of the Arizona Revised Statute included references, because I'm seeing more and more signs where cigarettes, including vape and e-cigarettes are prohibited. So I could be wrong about that but I agree that that should be noted as well. So thank you. And the other thing is, with Chairman Gray's comment about market data, it's another one TOWN OF FOUNTAIN HILLS Page 57 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 57 of 64 of those statements that I see as a little ambiguous. What does that mean? And I think we've got an awful of smart people, analysts at Fountain Hills. Can we call on them to see if we can set some bumpers around it? Can we quantify it if we said if we have, you know, 1,000 people and we have one bed or some equation to bounce that against to take away some of that ambiguity? GRAY: I think it's about -- I agree with you. I think it's about maybe pinpointing the data set that that's rooted in so there's national government statistics, I can't remember the office that it comes out of. WATTS: Um-hum. GRAY: Federal government statistics, you know, that are broken down by demographic, and geography, and you know, half a dozen different ways. And maybe it's prudent to say that, you know, based on this data base, you know, is what we root our math in. I think we have to be -- WATTS: I'm fine with that. I mean, if -- GRAY: -- cautious we don't make it too complex. WATTS: Right. GRAY: But the burden of proof is really on the applicant. WATTS: But this just says the market data. It doesn't say anything specific to say what of the market data are we going to measure a request on. So it's to me, again, ambiguous. If we could establish what data set and what percentage of that data set we had, what threshold, I think that would be reasonable so isn't just, again, subjective. GRAY: How would you address an application today on that particular topic? WESLEY: Dealing with something like this, someone that's doing a market study is going to have a professional of some king behind it that's done the study. And so it'd be reviewed to see if it looked like their data and their assumptions are all sound, but mostly relying on that professional that they have done their work because I'm certainly not a market analyst. WATTS: I wish I knew what the qualifications were, similar to what we had with the shooting range. We ended up with a very definitive reference and if we said whatever the study was had to be completed by somebody that was an expert in that area, what are those credentials? Maybe that's a way to address it to be able to quantify it because I TOWN OF FOUNTAIN HILLS Page 58 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 58 of 64 know it's -- I could come in with a report, and how are you going to validate it if we don't know what we're looking for or what the threshold is? WESLEY: To some degree, because they're coming through with a special use permit, the Commission and the Council can look at that person who did it and determine if they feel like they had the real credentials behind what they did, used data and information that was accurate, or reasonable or not, and send it back or not approve it if you're not seeing that you've got the correct information, or proper documentation for information or justification for any information that would be in that market report. WATTS: I think the way you phrased it makes some sense. And I think that if we could kind of wordsmith number 05 and say, with the certain criteria, the authority or the rational has to be provided by somebody, an expert in the field, something along those lines, I think that would for the time being anyway -- I certainly don't want to diminish what you've already accomplished, and I can't tell you how much I appreciate all of this hard work on everybody's part. That's one of those loose ends that just jumps out at me. So if we could -- WESLEY: Sure. WATTS: -- wordsmith a bit. GRAY: What do you think about embellishing on 05 to, I mean, how do we embellish on that language to really drive home that this provision in the code is really there for a service for residents and not in the code for a broader catchment. I mean, how -- WESLEY: Chairman -- GRAY: -- how do you put that language in? WESLEY: -- the language that's coming to my mind standing here would be something along the lines of, documentation from a professional in the area of drug treatment facilities. I don't know. Come up with the right language there that shows the need for this specific service for residents in Fountain Hills. GRAY: And I think that's fine. I think that our statement, while it has a period at the end of it, is still maybe too open ended. A market data demonstrating the need for the services for Fountain Hills residents, period. And then, oh, by the way, a 60 mile catchment. Yeah. You could infer on the back end of that. So I wonder if there's just a way to strengthen that a little bit because we want to allow the service, you know, for the TOWN OF FOUNTAIN HILLS Page 59 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 59 of 64 community under the true tenants of, you know, the definition of a service. We don't want to open up a regional catchment, you know, for the business. WATTS: What if you changed it slightly and said by a properly credentialed organization validating instead of demonstrating? I think demonstrating is probably the word that bothers me the most. WESLEY: I can tell you, in my mind I'm changing that to documenting versus -- WATTS: Yeah. WESLEY: -- demonstrating. I think that's a slightly stronger word. WATTS: Um-hum. WESLEY: If you don't mind, Chairman, coming back to your statement. Are we needing them to document that they can operate just based on Fountain Hills customers, if they happen to get anybody outside of it that's just extra because they can operate sufficiently just with Fountain Hills residents. GRAY: Yeah. I think it's the need for service specifically for Fountain Hills residents. Maybe that's not the right word, but you know, again, it's a draw. It's a medical service. It's a public service. The spirit of that service and the reason that that's exempt as a revenue stream for, you know, all jurisdictions is that it's supposed to serve a catchment, it's not supposed to -- it's not intended to become, you know, it's not intended to be leveraged as a, you know, for a larger market. It's a C-1 business not a C-3. WESLEY: Got you. Um-hum. GRAY: I think both of those statements -- WATTS: I do -- GRAY: -- are in play. WATTS: I do too and I think John's work thus far has been wordsmithing extraordinaire. So for that I put it back in your hands. You've got the concept. So -- WESLEY: Thank you. And so I don't know where else we're going to go with this but I think I'm hearing enough, even on just this one that we're probably going to have a continuous so I can work on the language and bring it back versus me just trying to do that take it on the council. I guess we'll see where we go with, but that's what I'm hearing. GRAY: Okay. TOWN OF FOUNTAIN HILLS Page 60 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 60 of 64 Commissioners, should we open the public comment? Angela, any speaker cards? PADGETT-ESPIRITU: Sure. We do. Larry Meyers. MEYERS: Chair, Commissioners, thanks again, and thanks for all your work for two years on this, including the residential portion of the detox industry, otherwise known as Sober Homes, inaccurately named. I have two concerns now that I've -- I think you addressed one but it doesn't address the map that I saw. 500 feet from any residential zoning district or use including planned area developments with residential primary use. 500 feet means it's not a Target because across Shae Boulevard are residences at 200 feet. So I don't like the map and I want it parcel line to parcel line as you specified. And I think you'll find that everybody in the front part of Fountain Hills living in the Trevino area will highly agree with me that we don't want a commercial detox facility 200 feet from our street. Secondly, on the language we're trying to come to with regard to serving Fountain Hills, I think one of the things that needs to be put into that is serving Fountain Hills residents on an ongoing basis because there may be one person in Fountain Hills that needs detox, or there may be two, or there may be five, but detox only lasts 10 days, 14 days, and there are beds. So where are we getting the business to fill these beds on an ongoing basis with Fountain Hills residents? And I think that answers the question about the regional draw because if I'm a business, and I've got a bunch of beds, and I've got a staff, I am going to fill those beds, and keep my staff busy, and get my cash flow going, and then I'm not serving Fountain Hills anymore. So with regards to Commissioner Corey's lens, I agree, let's help our people here in Fountain Hills, but on the same note I would think how many people in Fountain Hills on an ongoing basis require this service? And I think you're not going to find a whole lot. And that's just the two -- I recognize the two areas. I want to thank you for working on this because it's not an easy subject given the convoluted federal treatment of these types of businesses, and it's been two years, and it looks like it may be a little longer. But thanks for taking the time and listening to the people that have done a whole lot more research then probably all the rest of us on this because there are residents out there really working on this hard. Thank you. TOWN OF FOUNTAIN HILLS Page 61 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 61 of 64 PADGETT-ESPIRITU: Liz Gildersleeve. GILDERSLEEVE: Good evening. I want to second everything Larry just said. Those thoughts came up in my mind as John was going through his presentation. But I also wanted to thank you all here in this room for putting forth substantive and clear text for ordinance 23-01 as it relates to commercial drug and alcohol detox facilities in our communities. As I have said several times before, a strong ordinance not only protects neighborhoods and businesses, but it will also protect the vulnerable people, the vulnerable Fountain Hills residents who may need to rely on such a facility. I too have one suggestion concerning the requirement where market data must be provided to show there's a need for services among Fountain Hills residents. I am wondering if that requirement couldn't be clearer, just as Commissioner Watts had said. Market data just as it's written is broad and open to interpretation. Wouldn't we want the market data to be timely, substantive, and credible, not antidotal? For example, should there be a need from at least 50 percent of the Fountain Hills populations to warrant such a service, 40 percent, any percent? And who would consider and approve this data? Should that all be written into the ordinance? Otherwise, I believe these changes to the ordinance are a welcome addition. I appreciate all of the research included in the attachment from the town staff. And thank you, again, to each of you in this room for your hard work and attention to this impactful issue to our town. Thank you. PADGETT-ESPIRITU: Crystal Cavanaugh. UNIDENTIFIED SPEAKER: She's not on. PADGETT-ESPIRITU: Okay. That's it. GRAY: Okay. Close the public comment sessions. And final thoughts for John. It sounds like, John, no urgency to press this forward here tonight. Is it your preference to continue? WESLEY: So Chair, now that we don't have any, you know, pressing issues here that we have to hurry up and make a decision on this, so there's no rush, I think it would be easy if we were to come back. And I can go either way. I think, you know, finding the right wording for that number 05 is going to be a little bit tricky, and so I guess it just depends upon how comfortable you are with me coming up with something to take back to TOWN OF FOUNTAIN HILLS Page 62 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 62 of 64 council based on these decisions, or if you'd actually like to see it before it goes back. The other comments you made are going to be fairly easy to incorporate for clarifications. GRAY: I think I'm comfortable. Just it's we've been at this a long time and if it's no harm no foul, and what's another month? WATTS: As much as it kills me to wait, I think that's the prudent thing to do at this point. Let him get the verbiage right, run it past, if necessarily run it past -- WESLEY: And I guess too -- WATTS: -- the Town Council. WESLEY: Excuse me. Sorry to interrupt. But the piece of the insurance because that's maybe one that we haven't talked about very much, and I'll draft something, you might want to see that one again too. So -- GRAY: Okay. Okay. Certainly the market data piece and trying to tie that down, limiting catchment with a little stronger language, and then insurance either suggested recommended insurance types and/or again I think we kick the additional insured back in the air again one more time. Anything missing in direction for John? WESLEY: The smoking piece. GRAY: Oh, sorry. Yeah. The cigarette, e-cigarette component. And then, John, you got the property line to property line? WESLEY: Yes. GRAY: And also adding market discount for existing facilities. Commissioner Corey, any other additions? COREY: No. That sounds good. Thank you. GRAY: Okay. John, we need to vote on that to continue? WESLEY: Yes. GRAY: Okay. WESLEY: What's the date? The January, what is that, January 9th meeting continuance. GRAY: That's your preferred venue? WESLEY: Yes. TOWN OF FOUNTAIN HILLS Page 63 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 63 of 64 GRAY: Okay. WESLEY: That should be easy enough to get redone in that amount of time. GRAY: Okay. I'm going to go ahead and just make a quick motion to continue agenda item 6 to the 1/9/23 venue for the Zoning Commission, with the comments previously included for John. Commissioners, a second please? DEMPSTER: I'll second the motion. GRAY: All in favor? ALL: Aye. GRAY: Okay. And moving onto number 7, Commission discussion/request for research to staff. John, just parlaying back on that previous comment. I just wonder, I really like this idea of looking at services as, you know, really needing to justify the services needed. I don't want to make that too onerous, but maybe at some point in the future we kick that around a little bit as, you know, how services are brought through, you know, maybe whether they all go to special use permit, or go to kind of that need based analysis. But I think there might be an equitable component to that maybe down the road if we apply it here ultimately. So just a thought. Commissioners, any other requests for staff? Commissioner, Dempster? No. Okay. No -- WATTS: One more. Sorry. GRAY: I'm sorry. Go ahead. WATTS: In light of the fact that the MCSO contract was raised at Town Council meeting, I'd like to resurrect the noise issue that we've got and the reluctance that the sheriff's department has had about either acquiring decibel meters, or -- again, it's one of those things where it's subjective. And if we're going to talk to them about contractual obligations anyway, then maybe we ought to -- this is the time to look at and push a little harder on things like decibel meters. So I'd like to resurrect that as well. WESLEY: Chairman, Commissioner, I can take a look at that. The actual noise ordinance itself, if it's amended it wouldn't come here, it would be something the Town TOWN OF FOUNTAIN HILLS Page 64 of 64 DECEMBER 12, 2022 PLANNING AND ZONING COMMISSION MEETING Page 64 of 64 Council would handle. And it was much a recommendation from the prosecutor as it was from the sheriff's office as he looks at how to prosecute those cases. So it was a real epidus behind dropping the decibel meters. WATTS: Yeah. it was just a flat no, we're not going to do it, as I recall it. And I thought, I'd like to be able to tell my boss, no, I'm not going to do it and see what happens. GRAY: Okay. Moving onto number 8, the inverse summary of Commission requests from John. WESLEY: The primary request that I'd be working on would be the modifications to the ordinance we just discussed. I appreciate the Commissions and the public's comments. They were very helpful. You know, next time we'll finish that up. And with that I'm going to jump right on into the related number 9. And so we do have items for your January meeting, a rezone in January. We'll have a rezoning for your consideration over on Mountainside. Should have some modifications to the parking ordinance ready for your review at that point, some extra detail there. And if we don't think that it's too busy, I may have a section 204 site plan amendments ready for you. I know I'll have them ready for your review. We may or may not put them on that January meeting. It may get too crowded and may hold them off until February, but those are things we know are coming. Anything else coming that you're aware of? Okay. GRAY: Okay. I spaced it way back when, John, but we had two speakers under agenda item 5. I don't know. Did they actually get speaker cards filled out? Do we need to address that for the record? WESLEY: I think she did. GRAY: Did they? PADGETT-ESPIRITU: Yeah. GRAY: Okay. PADGETT-ESPIRITU: I did. GRAY: Okay. And finally number 10. We are adjourned. WESLEY: Thank you. Happy holidays, everyone. GRAY: Thank you.