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HomeMy WebLinkAbout2011.0106.TCREM.Minutesz:\council packets\2011\r1-20-11\110106m.docx Page 1 of 15
TOWN OF FOUNTAIN HILLS
MINUTES OF THE EXECUTIVE AND REGULAR SESSION OF THE
FOUNTAIN HILLS TOWN COUNCIL
JANUARY 6, 2011
EXECUTIVE SESSION AGENDA
CALL TO ORDER
Mayor Schlum called the Executive Session to order at 5:35 p.m. held in the Fountain Conference Room
at Town Hall.
AGENDA ITEM #1 – ROLL CALL AND VOTE TO GO INTO EXECUTIVE SESSION: PURSUANT
TO A.R.S. REV. STAT. §38-431.03(A)(3), DISCUSSION OR CONSULTATION FOR LEGAL ADVICE
WITH THE ATTORNEY OR ATTORNEYS OF THE PUBLIC BODY (SPECIFICALLY, CONTRACT
RAMIFICATIONS AND OTHER LEGAL ISSUES RELATED TO PENDING REFERENDUM).
ROLL CALL: Present for roll call were the following members of the Fountain Hills Town Council: Mayor
Schlum, Vice Mayor Brown, Councilmember Contino, Councilmember Leger, Councilmember Hansen,
Councilmember Dickey and Councilmember Elkie. Town Manager Rick Davis, Town Attorney Andrew
McGuire and Town Clerk Bev Bender were also present.
Mayor Schlum MOVED to enter into the Executive Session at 5:35 p.m. and Councilmember Hansen
SECONDED the motion, which CARRIED UNANIMOUSLY (7-0).
AGENDA ITEM #2 – ADJOURN TO THE REGULAR SESSION
Vice Mayor Brown MOVED to adjourn the Executive Session and Councilmember Elkie SECONDED the
motion, which CARRIED UNANIMOUSLY (7-0). The Executive Session adjourned at 6:12 p.m.
REGULAR SESSION AGENDA
* CALL TO ORDER AND PLEDGE OF ALLEGIANCE
Mayor Schlum called the meeting to order at 6:30 p.m. in the Fountain Hills Town Hall Council
Chambers.
* INVOCATION – Dr. Jim Ricketts, North Chapel
* ROLL CALL
Present for roll call were the following members of the City Council: Mayor Schlum, Vice Mayor
Brown Councilmember Contino, Councilmember Leger, Councilmember Elkie, Councilmember
Hansen and Councilmember Dickey. Town Manager Rick Davis, Town Attorney Andrew McGuire
and Town Clerk Bev Bender were also present.
* MAYOR’S REPORT
None.
* SCHEDULED PUBLIC APPEARANCES/PRESENTATIONS
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(i) Recognition of firefighters and staff involved in a recent life saving event at the Community
Center.
Mayor Schlum stated that on November 18, 2010, a Fountain Hills resident that was in
attendance at a Community Center event began to feel ill. She did not want anyone to
activate the 9-1-1 system. An astute staff member convinced the resident to allow him to
call 9-1-1 on her behalf. A Fountain Hills Fire Department crew from Station 1 responded
quickly to the scene. The patient was in mild distress and did not really show any serious
symptoms upon their arrival. Diagnostic medical equipment was attached to the patient and
an evaluation was made. The state of the art equipment, along with the emergency
responders' training, demonstrated that the patient was having a significant heart attack.
Appropriate treatment was quickly initiated and the patient was taken to the hospital by
ambulance.
Because the Fountain Hills Fire Department is equipped with the latest technology that helps
to identify problems early and transmits patient data to Doctors at the hospital, the patient as
able to bypass the Emergency Department and go directly to the Catheterization Lab for
definitive treatment. While being treated in the lab, the patient went into cardiac arrest and
was resuscitated successfully. The patient was then taken to the ICU in stable condition.
This Fountain Hills resident is alive today because everyone that was involved in the "Chain
of Survival" did their jobs extremely well.
The Mayor stated that the Council would like to recognize Rino Ghetti, from the Community
Center staff for recognizing the need for 9-1-1 to be activated and the crew from the
Fountain Hills Rural/Metro Fire Department and Rural/Metro Ambulance:
Captain/Paramedic Todd Brunin, Firefighter Scott Prentice, EMT Bill Stienke and
Paramedic Mike Dowey. The Mayor asked those who were involved to come forward and
thanked them for doing their jobs so well and contributing to the safety and well being of the
Town's residents.
(ii) Recognition of Senior Services Advisory Commissioner Bruce Florence for his
contributions.
Mayor Schlum asked Senior Services Advisory Commissioner Bruce Florence, Community
Center Advisory Commissioners Leone Johnston and Sharon Morgan, McDowell
Mountain Preservation Commissioners Lina Bellenir and Curt Cornum and Parks &
Recreation Commissioner Paul Kolwaite to come forward at this time. The Mayor presented
each person for a certificate in appreciation of their service to the community and thanked
them for the time and effort that they have contributed in order to improve and enhanc e the
quality of life for the Town and all of its residents.
(iii) Recognition of Community Center Advisory Commissioners Leone Johnston and
Sharon Morgan for their contributions.
See Item ii above.
(iv) Recognition of McDowell Mountain Preservation Commissioners Lina Bellenir and Curt
Cornum for their contributions.
See Item ii above.
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(v) Recognition of Parks & Recreation Commissioner Paul Kolwaite for his contributions.
See Item ii above.
CALL TO THE PUBLIC
None.
CONSENT AGENDA
Mayor Schlum advised that Agenda Item #2 has been removed from the Consent Agenda at the request of
Councilmember Hansen and placed on the Regular agenda.
AGENDA ITEM #1 – CONSIDERATION OF APPROVING THE TOWN COUNCIL MEETING
MINUTES FROM DECEMBER 14 AND 16, 2010.
AGENDA ITEM #3 – CONSIDERATION OF A TEMPORARY USE PERMIT FOR SOFRITA
RESTAURANT, LOCATED AT 16848 AVENUE OF THE FOUNTAINS, FOR REPEATING
OUTDOOR ENTERTAINMENT EVENTS FOR 2011. CASE #TU2010-09.
AGENDA ITEM #4 - CONSIDERATION OF A SPECIAL EVENT LIQUOR LICENSE APPLICATION
SUBMITTED BY SHARON ELAINE MORGAN REPRESENTING THE FOUNTAIN HILLS
CHAMBER OF COMMERCE LOCATED AT 16837 E. PALISADES BLVD., FOUNTAIN HILLS, AZ
FOR THE PURPOSE OF AN ANNUAL AWARDS DINNER. EVENT TO BE HELD AT THE
COMMUNITY CENTER, SCHEDULED TO BE HELD ON SATURDAY, JANUARY 22, 2011, FROM
5:00 P.M. TO 10:00 P.M.
AGENDA ITEM #5 - CONSIDERATION OF APPROVING A LIQUOR LICENSE APPLICATION
SUBMITTED BY JEFFREY SCOTT LESSIG, OWNER/AGENT OF BUCKEYE WEST, LLC DBA
SUNRIDGE CANYON GOLF CLUB LOCATED AT 13100 N. SUNRIDGE DRIVE, FOUNTAIN
HILLS, AZ. THIS IS FOR A SERIES 6 LICENSE (BAR LICENSE) REPLACING EXISTING
LICENSE DUE TO OWNERSHIP CHANGE.
Councilmember Hansen MOVED to approve the Consent Agenda as listed with Agenda Item #2 removed and
Councilmember Dickey SECONDED the motion.
A roll call vote was taken as follows:
Councilmember Dickey Aye
Mayor Schlum Aye
Councilmember Leger Aye
Councilmember Hansen Aye
Councilmember Contino Aye
Vice Mayor Brown Abstain (Was not present at the meetings)
Councilmember Elkie Aye
The motion CARRIED UNANIMOUSLY by those voting (6-0).
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REGULAR AGENDA
AGENDA ITEM #2 – CONSIDERATION OF PURCHASING THREE (3) THERMAL IMAGING
CAMERAS FROM FIRST IN, INC., IN THE AMOUNT OF $25,811.85.
Assistant Fire Chief Randy Roberts stated that the Council approved accepting the grant in the amount of
$28,000 and staff thought that with this money they would be able to purchase two very nice state of the art
cameras but they were able to find a State contract in place with the City of Peoria and were able to purchase
three cameras for $25,811.85. He noted that the grant will cover the entire cost of the cameras and no matching
monies from the Town are required.
The Council commended Chief Roberts and his department for their excellent work.
Chief Roberts advised that the cameras will provide firefighters with the ability to see through smoke to find
possible victims and will identify hot spots as well.
Councilmember Hansen MOVED to approve the purchase of three thermal imaging cameras from First In, Inc.,
in the amount of $25,822.85 and Vice Mayor Brown SECONDED the motion, which CARRIED
UNANIMOUSLY (7-0).
AGENDA ITEM #6 - CONSIDERATION OF CALLING A SPECIAL ELECTION FOR THE
PURPOSE OF SUBMITTING TO THE QUALIFIED ELECTORS OF THE TOWN OF FOUNTAIN
HILLS REFERENDUM 2010-RF001-01 AND DIRECTING THE TOWN MANAGER, THE TOWN
CLERK AND TOWN ATTORNEY TO PREPARE ALL MATERIALS AND TAKE ALL STEPS
NECESSARY TO ENSURE COMPLIANCE WITH APPLICABLE LAW; AND APPROVING A
BUDGET TRANSFER FOR APPROXIMATELY $55,150 FROM THE TOWN MANAGER'S
CONTINGENCY FUND TO THE TOWN CLERK'S ELECTION BUDGET TO COVER
ANTICIPATED ASSOCIATED ELECTION COSTS.
Town Clerk Bev Bender advised that the Referendum petitions were filed in the Clerk's of fice on December 7th
(regarding Ordinance 10-08, adopted by the Council on November 4th). She noted that the petitions were
reviewed by the Town Clerk and the Maricopa County Recorder's Office as required by law and the signatures
appeared to be adequate in number to have the issue placed on the ballot. She added that the next step is for the
Council to determine when the election will be held. She said that the Town Code contains a provision that
states, "A Special Election may be called no less than 90 days nor more than 150 days from the presentation of
the Certificate of the Clerk" and stated that that puts it on the May 17, 2011 ballot. She added that the
alternatives would be to place the issue on the ballot of the next regularly scheduled election s, which will be
held on March 2012 or May of 2012. She informed the Council that notification requirements dictate that the
Town let the County know 120 days prior to the date of the election that the Town will be holding an election,
which puts the deadline to call a May 17th election at January 17th, 2011. She further stated that the next
notification is the 105 days ballot language deadline. She noted that the same timeframe deadlines apply to the
March 2012 election. She said that the election will cost approximately $55,000 and stated that if the Town
decided to do an all mail ballot election the cost would be approximately $50,000. She added that if the issue
was able to be placed on a consolidated election ballot (with a State issue) the costs would be reduced
considerably (approximately $22,000 total cost) but in that instance the Town would not be able to conduct an
all mail ballot election.
Ms. Bender advised that a ballot box would be available in Town Hall and the ballots would be picked up by the
County on a regular basis and the County Recorder's offices would serve as three early voting sites for those
citizens wishing to vote early. She noted that the polling places would be open on Election Day from 6:00 a.m.
until 7:00 p.m. She added that an all mail ballot election would require the placement of a ballot box at Town
Hall for those voters who do not want to return the ballots by mail. She explained that since the money to cover
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the cost of the Special Election is not in the Town Clerk's budget at this time, the Council is being asked to
approve a transfer from the Town Manager's Contingency Fund to cover this cost. Ms. Bender indicated her
willingness to respond to questions from the Council.
Mayor Schlum thanked Ms. Bender for her input.
Ms. Bender informed the Mayor that five speaker request cards have been submitted.
Dina Galassini addressed the Council and stated for the record that the petitions for the Referendum on
Ordinance 10-08 regarding the single hauler trash issue specifically called for a General Election and not a
Special Election as some people are being led to believe. She said that from her experience in gathering
signatures, she has met some of the greatest residents -- both other gatherers and residents who signed the
petition. She noted that the petition gatherers collected signatures on their own time and noted that a few are
involved in the Tea Party movement and said everyone cares for their country and are all in this together. She
added that the decision made by the Town's representatives regarding the single hauler trash contract should
have involved the people and given them the right to vote. She said that the Council should have trusted in the
ability of the Town's residents who are paying the bills to render the right decision on this important issue. She
stated that the decision that was made has the ability to greatly impact residents and she has learned that it is all
about the buck and whether they make money from Allied franchise fees or the lan dfill tipping fees, they are
going to make the hauler pay something and ultimately it will cost the customers. She said that the citizens have
a right to know the plans as far as the money and the Council's decision was forced upon them and she suspects
that they have a hidden agenda. She added that whatever type of election the Council favors this evening, the
result of the election will be what the people choose and not a wavering Town Council.
Linda Bordow addressed the Council and said that she is speaking on behalf of herself and her husband. She
advised that she googled Allied and Republic and "litigation" and was surprised at the amount of litigation
associated with them. She stated that her main concern is that right now she does not believe that the Town
should spend $50,000 on a Special Election and added that if the Town wanted to spend that kind of money, the
Food Bank could use the help. She added that the goal was to have the citizens' voice s heard but not to spend
$50,000 to do it and spoke in support of placing the item on the 2012 regularly scheduled election.
Hugh Henry addressed the Council stated that he would not be in favor of a Special Election because he does
not feel it is necessary. He said that if they want to spend money it should be on streets. He added that he
believes in free enterprise and freedom of choice and advised that he and his neighbor caught 14 rats because
they back up to the Preserve and it is a concern to him that they are talking about one pickup a week when they
could just as well have two. He noted that there are some people who do not take out their garbage even every
other week (single people in homes) and added that there are really three different markets -- for twice a week,
once a week and every other week and he believes that is the way they should look at this problem. He said that
one solution does not necessary fit all.
Jeff Cohen addressed the Council and expressed the opinion that the paper has done much towards dividin g the
Town in the name of selling papers. He said that he and the group that was formed to fight the Council's
decision and do a referendum did so to exercise their Constitutional right. He pointed out that the Referendum
got double the amount of signatures required in less than half the allowed time and it specifically stated, "At the
next General Election." He said that he and his group feel that the Council forced a tax on the people by forcing
them to use one supplier regardless of the cost because costs go up and they have taken away the citizens' right
of choice and that is basically a tax. He added that if the Council feels that that is what they want to do, they
should just tax the people but noted that that too would have to go to a vote of the people. He requested that the
Council allow this issue to be placed on the ballot of the next General Election instead of spending $50,000 of
the Town's money.
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Robert Tripp addressed the Council and expressed the opinion that the Council has done a fantastic job over the
last few years during the difficult economic times they have had to face. He said that the Town came forward
and said they wanted recycling and dozens upon dozens of meetings and discussions have taken place on this
issue -- it is not something that has been taken lightly. He added that he does not believe that $50,000 is all that
much money and the proposal will actually save the Town and residents money (he will save approximately
$200 a year). He said he would like to see this thing over with and supports moving ahead as quickly as
possible.
Mayor Schlum thanked all of the speakers for their input.
Town Attorney Andrew McGuire indicated his intention to respond to some of the questions/comments that
have been raised regarding this issue. He stated that as far as the Referendum petitions calling for a General
Election, he is not aware of any case law statutory/Constitutional provisions that would allow a referendum
petition to change the Town Code provisions or the State's statutory provision on how an election will be called.
He said that while he understands the position being taken, he does not believe it has any legal foundation. He
added that there have been repeated comments made saying that this item should have gone to a vote of the
people prior to the Council rendering a decision on the issue and under State law there is only one type of
question that would go to an advisory election and that is a transportation question -- all other advisory elections
are not permitted by State law so the Council could not have put the item before the people prior to making their
decision. He added that the contract is revenue neutral -- the Town does not receive any money and does not
pay anything out other than for its own services. He stated that the options include two pickups a week along
with recycling or one pickup a week and recycling.
Mr. McGuire confirmed for the Mayor that the Council's choice this evening is to select either a May 17th
Special Election or place the issue on the ballot of the March 2012 regularly scheduled election.
Councilmember Dickey MOVED to place Referendum 2010-RF001-01 on the ballot of a May 17, 2011 Special
Election directing the Town Manager, Town Attorney and Town Clerk to prepare all materials and tak e all
necessary steps to ensure compliance with applicable laws and to approve a budget transfer of $55,150 from the
Town Manager's contingency fund account to the Town Clerk's Election budget to cover anticipated associated
election costs and Vice Mayor Brown SECONDED the motion.
Councilmember Hansen said in the packet where it referred to possibly having the election at the next regularly
scheduled Primary Election it also indicated that there would have to be a budget transfer from the Town
Manager's contingency fund and she is wondering why they would need that transfer for a year out instead of
putting it in the budget.
Ms. Bender concurred and said that she would include that amount in the budget for next year.
Councilmember Hansen clarified that if this item was placed on the General Election ballot in May of 2012
there is a possibility that there may not be a "regularly scheduled election in May of 2012." She explained that
there will be a Mayor/Council election in March of 2012 but if all the candidates are elected outright, there
would not be a need for a May election. She added that in that case, it would wind up costing more because it
would force a second election. She said if they decided to have an election in 2012, March would be the
preferable date because that election will definitely be held.
Councilmember Elkie discussed the costs that would be incurred if the election was held in March of 2012 and
said that it would cost approximately $14,000 to add this item to that ballot.
Ms. Bender concurred and stated that the amount would include the cost of a publicity pamphlet that they would
have to create, the election notification publications and all of the translations.
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Councilmember Dickey asked if it would be possible, if they held t he election in 2011, to do all mail ballots,
which would save approximately $5,000.
Ms. Bender replied that she believes they would have sufficient time to do that.
Mr. McGuire stated that he believes that they would be within the timeframe that would allow them to do that
but noted that they would need a Code amendment and it would take 30 days before that became effective (but
they could do it). He reported that the "drop dead date" for the mail in ballots will be prior to the time they need
to start issuing notices so there would be enough time but it would be fairly close. He added that if that were the
direction of the Council, staff would have to be back before the Council at their next meeting. He said that the
ordinance will have to be drafted in a flexible format to allow the Council to choose between having an all mail
ballot election and one where polling places are used. He stated that they have been alerted that there might be a
State wide measure in May but they will not be able to confirm that until March. He advised that if that is the
case, the Town cannot have a mail in ballot election. He confirmed that the costs would be cut in half if the
State puts a measure on the ballot at the same time.
In response to a question from the Mayor regarding potentially moving the election to 2012, the action passing
and what would happen to the two plus years they have put into this issue, Mr. McGuire responded that if the
Council's decision was upheld at a 2012 election, the process for having a single hauler trash collection would
be upheld but the current signed contract would not be around anymore. He said that staff has talked to Allied
about this possibility of them holding their contract until that time but the company has advised that the y could
not hold the price for that long so staff would recommend terminating the contract by convenience , walk away
from that and wait until they find out what the voters have to say. He added that they could then utilize the same
RFP process they did this time around and solicit new bids in the summer of 2012.
Councilmember Elkie asked if that were the case and they were accepting bids, would they then have to have an
additional forum to allow citizens the opportunity to express their views.
Mr. McGuire advised that they would have the same discussion with regard to the contract but the discussion
regarding the process and the regulations would be done and there would only be the administrative process of
issuing the RFP, reviewing the submissions and then bringing a recommendation before the Council.
Mayor Schlum commented that if the election were to be held in May, they could utilize what they already have
in place and not have to go through the entire process again. He added that if they wait till next year, 13 months
from now, they would have to go through the process again as far as getting bids and they would have
discussions during their open meetings where citizens could make comments but they would only be doing so if
the election affirmed the Council's decision.
Councilmember Dickey stated that if they put it off they are jeopardizing the current cost lock-in ($11.44) and
half of the three year prize freeze would be gone by the time they did it. She said that a friend of hers who lives
in the northwest part of Town just got her quarterly bill and it was $75.00 for one pickup and one recycle so the
more they delay the less savings there will be to the residents. She added that her friend would save $165.00 a
year and that weighs on her, that they would have to start again as well as the unlikely chance of getting that
good a price. She said that she is reluctant to lose what they have in place.
Councilmember Elkie asked if her friend was paying $75 a month and she clarified that she is paying $75 a
quarter.
Councilmember Hansen asked everyone to keep in mind that some people will be paying more with the current
contract (if they live in an Association or condominium and have gotten a good deal for themselves right now).
She said not everyone will be paying less and as far as going through the process again, none of them have a
crystal ball and it is possible that they could even do better depending upon the economy and the competition.
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Councilmember Elkie stated that they have heard from some speakers, including Rubbish Solutions, who made
rumblings about the RFP process and the fact that Council took their vote at 12:30 in the morning. He said that
allowing people to be heard again on this issue may prove to be valuable.
Councilmember Leger commented on the significant amount of discussion that has taken place regarding this
issue, many of them were repetitious, but said he appreciates the feedback and the fact that people are passionate
about this and have come forward. He stated that it is his understanding as far as Rubbish Solutions that they
did have some issues and asked the Town Attorney if the issues were addressed at the beginning of this process.
Mr. McGuire replied that staff had discussions with them informally about how their concerns were going to be
addressed within the bidding process and they had four bidders who submitted under the RFP as it was issued
and staff was awaiting a bid to be able to address that with them, but they never received a bid. He noted that
they did not participate in the process. He added that staff does not believe that there is a flaw in the bidding
process and is willing to stand behind that process.
Councilmember Leger stated that this has been a long, long discussion and spirited debate and the longer it
drags along the longer they remain in limbo as a community. He said that this issue has divided the community
and he believes it is in the best interest of the community to bring this issue to a vote as soon as possible, putting
the issue to rest and moving on. He added that the current referendum gives them an opportunity to call an
election and requires them to do so and he believes it is prudent to do so as soon as possible -- May 17, 2011.
He said that he is hopeful that a vote of the people in May of 2011 will bring this issue to closure and he
believes it is the right thing to do for everyone involved. He stated that the Town faces many issues and it is
time to move forward on this one.
Councilmember Hansen said that with the possibility that they "could make a better mousetrap in 2012”, she
would MOVE to amend the motion to change the election date to the regularly scheduled Primary Election in
March of 2012 and Councilmember Elkie SECONDED the motion.
The Mayor asked for a vote on the amendment to the motion.
A roll call vote was taken with the following results:
Councilmember Hansen Aye
Councilmember Dickey Nay
Councilmember Contino Aye
Vice Mayor Brown Nay
Councilmember Elkie Aye
Councilmember Leger Nay
Mayor Schlum Nay
The motion FAILED by majority vote (3-4).
Mayor Schlum asked for a vote on the main motion (May 17, 2011 Special Election).
The motion CARRIED by majority vote (4-3) with Councilmembers Contino, Hansen and Elkie voting nay.
AGENDA ITEM #7 - CONSIDERATION WITH POSSIBLE DIRECTION TO STAFF WITH REGARD
TO PURSUING AN AGREEMENT WITH THE CITY OF SCOTTSDALE TO ALLOW CONNECTING
TRAILS BETWEEN SCOTTSDALE'S MCDOWELL SONORAN PRESERVE WITH THE FOUNTAIN
HILLS MCDOWELL MOUNTAIN PRESERVE.
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Community Services Director Mark Mayer addressed the Council relative to this agenda item. He said that the
amenity located to the west continues to grow in popularity. He advised that the Town of Fountain Hills
Mountain Preservation Commission has been continuing discussions with Scottsdale's Sonoran Preserve
Commission on the possible connection between their trail and the Town's and stated that there would be
benefits to both communities. Mr. Mayer added that one item that the Commissioners are at odds with is the use
of horses on the trails. Both the City of Scottsdale and Maricopa County allow horses on selected trai ls in their
preserve/park, however the Town does not. He said that there are a number of reasons horses are not allowed,
including but not limited to the fact that trails were not designed/built to accommodate horses (narrow), the
increased maintenance that would be required and the lack of horse staging areas and/or trailer parking currently
in place or proposed.
Mr. Mayer informed the Council that at their December 7, 2010 meeting, the McDowell Mountain Preservation
Commission debated the trail connectivity and horse privileges. He noted that ultimately the Commission voted
to recommend to the Town Council to pursue an agreement with the City of Scottsdale to allow connecting trails
between Scottsdale's McDowell Sonoran Preservation Commission and the Fountain Hills McDowell Mountain
Preservation Commission (MMPC), exclusive of horse privileges, and two separate alignments are being looked
at. He added that staff supports the Commission's recommendation.
Mr. Mayer indicated his willingness to respond to questions from the Council.
Mayor Schlum thanked Mr. Mayer for his presentation at the members of the MMPC and Scottsdale's Sonoran
Preserve Commission for their ongoing efforts.
Ms. Bender advised that one speaker wished to address the Council relative to this agenda item.
Norman Thorpe addressed the Council and said that he is a seasonal resident and was thrilled to hear that this
item was coming before the Council. He stated that the connection of the trails is an important issue and one
that will result in numerous benefits to both communities. He added that this would benefit hikers on the
Fountain Hills side and noted that the much larger trail system on the Scottsdale side is a very well used trail
system and with the connectivity in place many of those hikers will come over to this side or go to the Park. He
said some of those people will certainly stop in Fountain Hills and shop at the various businesses and eat at the
restaurants. He urged the Council to approve this item.
Councilmember Leger noted that it appears that none of the trails are capable of managing horse traffic and
stated that he has been reading that the Scottsdale people are interested in being able to have their horseback
riders access the Town's trails. He asked if they maintain where they are at on t his issue whether or not it will
constitute a "deal breaker."
Mr. Mayer replied that it seems that Scottsdale has more to gain than to lose from this proposal and noted that
their trails are more heavily used than the Town's and the access will potentially benefit them more than the
Town but there are some obvious benefits for them as well. He added that there was a feeling among himself
and the Commission that they were giving away too much and compromising their system too much, which
would potentially burden the Town with additional costs/repairs. He advised that Scottsdale will need some
additional signage on their end.
Councilmember Dickey MOVED to pursue an agreement with the City of Scottsdale for trail connection
between the two Preserves and Councilmember Hansen SECONDED the motion, which CARRIED
UNANIMOUSLY (7-0).
AGENDA ITEM #8 - CONSIDERATION OF RESOLUTION 2011-03, DECLARING AS A PUBLIC
RECORD THAT CERTAIN DOCUMENT FILED WITH THE TOWN CLERK AND ENTITLED THE
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TOWN OF FOUNTAIN HILLS ZONING ORDINANCE CHAPTER 24 - MEDICAL MARIJUANA
REGULATIONS.
Mayor Schlum advised that there would be only one report on Agenda Items 8, 9 and 10.
Senior Planner Bob Rodgers addressed the Council and stated that Proposition 203, the Arizona Medical
Marijuana Act, appeared on the November 2, 2010 Statewide ballot and, as approved by the voters, provides for
medical marijuana use, sale and cultivation, including the establishment of medical marijuana dispensaries in the
State. He said that evaluation of several California cities' experiences with medical marijuana dispensaries and
the opinion of the California Police Chiefs’ Association have indicated negative secondary neighborhood effects
associated with the operation of medical marijuana dispensaries, including: Il legal drug sales at a price less than
dispensary prices to dispensary patrons; Marijuana use in and around dispensaries; Non-residents being attracted
to the community to secure marijuana; DUI arrests related to marijuana purchased at dispensaries; Burglar ies at
dispensaries; Drug dealers posing as medical marijuana users to purchase and resell marijuana legally; Robbery
of medical marijuana; Thefts in and around dispensaries to support legal and illegal drug commerce; Negative
effects on surrounding businesses resulting from a concentration of criminals associated with the dispensary and
Illegal sale of drugs other than marijuana in dispensaries. (A complete copy of the report is on file in the office
of the Town Clerk.)
Mr. Rodgers explained that dispensaries, by virtue of their operation, may be the repositories of large amounts
of cash and marijuana and consequently some operators have been attacked at their dispensaries and at home.
He said that such locations are also regularly burglarized and other negative effects that have been identified
include the sale of drugs to minors, loitering, heavy vehicular traffic, increased noise and robbery of dispensary
customers.
Mr. Rodgers further stated that Proposition 203 permits the Town to enact zoning regul ations in order to
conserve and promote the public health, safety and general welfare and to regulate this use in order to protect the
public's health by establishing appropriate regulation of medical marijuana dispensaries and cultivation
facilities.
Mr. Rodgers outlined the proposed "Chapter 24 - Medical Marijuana" ordinance amendment and said that it will
provide the following:
1. Marijuana dispensaries or medical offsite cultivation locations will be permitted only within the C -2 zoning
district.
2. Medical marijuana locations must meet the minimum separation requirements, measured in a straight line
to the closest property line of any parcel containing the uses listed below:
a. 2,000 feet from any other medical marijuana dispensary or medical marijuana dispensary offsite
cultivation location.
b. 2,000 feet from a residential substance abuse diagnostic and treatment facility or other residential
drug or alcohol rehabilitation facility.
c. 2,000 feet from a public, private, parochial, charter, dramatic, dancing or music school, a learning
center or other similar school or educational facility that caters to children.
d. 2,000 feet from a childcare center.
e. 1,000 feet from a public library or public park.
f. 500 feet from a church.
3. The ordinance prohibits cultivation locations that are not specifically associated with a dispensary.
4. The ordinance places specific maximum size limitations on dispensaries as well as cultivation.
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5. The ordinance outlines the specific requirements any marijuana dispensary or cultivation area must adhere
to in order to be granted an initial permit to operate as well as to continue operation.
6. Dispensaries shall have operating hours not earlier than 9:00 a.m. and not later than 5:00 p.m.
7. Security guards must be provided at all times.
8. Proper lighting must be maintained.
9. Patients who are minors must be accompanied by a parent or legal guardian.
10. There can be no on-site doctor to issue recommendations for medical marijuana.
11. There can be no on-site sales of alcohol or tobacco and no on-site consumption of food, alcohol, tobacco or
marijuana.
Mr. Rodgers added that the amendment outlines the penalties for violations of the ordinance. He stated that
approval of the proposed ordinance amendment will allow the Town to regulate the location, design, size and
hours of operation of any medical marijuana facility that is proposed within the Town. He noted that denial of
the proposed ordinance amendment will allow such uses to locate and operate under any applicable State or
County guidelines that may be adopted.
Mr. Rodgers informed the Council that the Planning & Zoning Commission voted at their December 9, 2010
meeting to forward a recommendation to approve the proposed new Chapter 24 - Medical Marijuana zoning
ordinance text amendment. He added that staff recommends that the Council vote to approve the zoning
ordinance text amendment as presented.
Mr. Rodgers indicated his willingness to respond to questions from the Council.
Mayor Schlum thanked Mr. Rodgers for his presentation.
The Mayor stated that he would allow citizens who submitted request to speak cards on this agenda item to
present their remarks at this time.
Mr. Doug Hebert addressed the Council and said he spent 26 years with the Government Drug Enforcement
agency and since that time he has been involved in different coalitions, boards and committees (one in
opposition to Proposition 203). He provided background information on the Proposition itself and thanked the
Town Council for the effort that has gone into the zoning regarding this issue and said that in California the
dispensary issue really got out of hand and resulted in a variety of crimes and misuse . He stated that the Town,
taking a proactive stance on this issue, will avoid many of the problems that California faced. He commended
the Council and staff on their proactive stance and indicated support for the proposal before them this evening.
Carole Groux addressed the Council and stated that she is the Director of the Fountain Hills Youth Substance
Prevention Coalition. She also commended everyone who has worked on this issue for being proactive and
partnering with the coalition to come up with a very responsible zoning ordinance. She stated the opinion that
they will be able to work together as a team to keep the Town's youths safe and drug free.
Maria Perreault addressed the Council and said that under the Youth Substance Prevention Coalition of Fountain
Hills and as Coordinator of the Safe Homes Network, their goal is to protect their children from the harmful and
often deadly results of alcohol and drugs. She asked parents to join them in this effort by not allowing illegal
drugs or alcohol to be consumer by anyone under the age of 21. She reported that they currently have 113
participants and their goal is to reach 600 by the end of this year. She said that as an involved parent she was
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shocked to hear the extent of illegal marijuana use in the Town's high schools (up to 10% higher than the State
average). She noted that 23% of this year's juniors report using marijuana on a regular basis. She stated that
statistics prove that marijuana usage is directly connected to academic failure. Ms. Perreault provided additional
statistics regarding this issue, spoke in opposition to the placement of a dispensary in Town and spoke in favor
of the proposed proactive steps currently before the Council.
Mr. David Pattino addressed the Council and said that his current employment/activities allow him to see three
sides of this issue. He stated the opinion that a dispensary in Town would not be good for the community and
commented on the abuse by students that he witnesses as well as seniors who need a lot of medication to
maintain their independence and health, and he sees drug addicts and people committing drug-related crimes.
He showed the Council an empty medical marijuana cake container that was given to him in Arizona (came
from California). He noted that the warning on the cake container says, "For Medical Use Only" and says it
should be kept away from children but he was able to obtain it without any problem and he could easily get
more. He said that the cake was destroyed but it goes to show h ow easy this would be because anyone using
medical marijuana could sell or give away their surplus. He stated that they are opening a can of worms that
will be very hard to control and Fountain Hills is not the place to have a dispensary.
Rich Schultz addressed the Council and said that he was speaking on behalf of himself and his wife. He stated
support for the proposed ordinance and added that over the last six weeks they have seen another epidemic of
kids obtaining another abuse called spice. He advised that he was born and raised in California but the state has
changed and in part that is the result of the approval of the proposition that was passed there. He thanked the
Council for their pro-activeness in regulating this process. He provided copies of an ordinance that he said
many towns across America have adopted legalizing medical marijuana in smoke shops and suggested that if the
ordinance is adopted that the Council start looking into smoke shops and prohibiting smoking paraphernalia and
products. He reported that the Town currently has a shop that sells spice.
Nancy Ordowski addressed the Council and thanked them for regulating the zoning for the dispensaries in the
responsible fashion that they have but said she wished it did not have to happen in Town. She stated that she
works with the youth groups in her church and is very concerned about what this could lead into. She added that
if they have to put up with having a dispensary in Town the zoning has to be stronger than any other zoning in
place in order to protect the youths and the entire community. She noted that two ounces of marijuana will
make 150 joints and participants will be able to obtain this amount every two weeks. She added that a lot of
extra marijuana will be available from those who do not need to use that amount and this is of major concern to
her. She stressed the importance of protecting the community and finding any way they can to deny the location
of a dispensary in Fountain Hills.
Jeff Cohen addressed the Council and expressed concerns regarding the establishment of a medical marijuana
facility in Town. He said that no good can come from this except for the people who may need it and if they
need it that bad they can drive to Scottsdale. He urged the Council to do everything in their power to totally
remove this from the Town and protect the community.
Nancy Puffer addressed the Council and said that she believes this whole thing is a bad idea. She commented
on the various conditions she suffers from and surgeries that she has undergone and added that although she is in
pain, she has a doctor who knows how her body will react to certain pain medications. She noted that for every
action there is a reaction and different people will react in different ways to medical marijuana. She commented
that she would not zone anything to accommodate any of this and expressed concerns about the long-range
negative impacts of this proposal, particularly on the youths of the community.
Linda Bordow addressed the Council and expressed the opinion that the Council and staff has done a good job
in putting the ordinance together. She said that she supports the proposed ordinance and added that the Town
cannot legally put zoning in place that will eliminate the possibility of having a medical marijuana dispensary in
the community. She stated that she has had family members with serious medical conditions use medical
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marijuana for pain relief and said that it did make a difference. She added that she also agrees that the last thing
they want is to have the Town's youths involved in this. She further stated that the State is going to issue 124
licenses for this and if they do select someone who wants to set up a site in Fountain Hills, she would hope that
it would be someone who would be philanthropic -- this is a non-profit set up and there will be money
generated. She said that the excess funds should be used to set up programs to support the Town's youths, even
a Teen Center, to get them away from that type of thing and provide education so that they are aware of the
dangers of drug use. She stated that since this is going to happen, if a dispensary is set up in Town she would
like to see some benefit come out of it for the youths. She questioned whether the Council has the a uthority to
add a provision related to that (use of funds generated to go towards such programs) and reiterated that the last
thing she wants to see is any type of abuse in this area but added that there are people who will benefit a great
deal from being able to access medical marijuana for pain relief. She thanked the Council for putting the
restrictions on the ordinance that is being proposed and protecting the Town.
Mayor Schlum thanked all of the speakers for their comments.
Councilmember Hansen suggested that the Council get a housekeeping item out of the way - Resolution 2011-
03, declaring the document a public record and the Mayor agreed.
Councilmember Hansen MOVED to declare as a public record that certain document filed with the Town
Council and entitled the Town of Fountain Hills Zoning Ordinance Chapter 24 - Medical Marijuana Regulations
(Resolution 2011-03) and Councilmember Elkie SECONDED the motion.
Mayor Schlum requested that Mr. McGuire speak to the State law and explain why the Town is allowing this at
all in order to respond to some of the comments heard this evening.
Mr. McGuire explained that Proposition 203 has very limited local control provisions placed in it and one of
them was the availability for municipalities to have reasonable zoning regulations with respect to medical
marijuana dispensaries, cultivation facilities, etc. He noted that the debate among attorneys has been gone on
since September and some communities were proactive and adopted regulations as far back as then, before the
vote was even taken. He reported that none of the attorneys involved could find a way to implement a complete
ban and the Town can safely say that they have gone as far as any community can in terms of this ordinance and
they are proposing to put into place the most stringent zoning regulations they can come up with. He also
discussed another state in which communities are currently involved in lawsuits with the ACLU over this type
of provision. He stated that they would like to see the outcome of that case to see whether it will trickle over to
them as well. He discussed separation regulations and said that they will have no more than one of each. He
added that there is limited availability in that area and discussed the gap in time (the time the licensing will
happen for caregivers and qualified patients and the dispensaries). He noted that staff believes they needed to
put into place provisions to make sure that the Town has something in place prior to any licensing happening so
that anyone who is more than 25 miles away from a dispensary that hasn't been licensed yet so it can't exist yet
will understand that they still have to be in a C-3 category. Staff felt it important to put that into place prior to
the licensing taking place in early April.
The Mayor thanked Mr. McGuire for his input and called for a vote on the motion.
The motion CARRIED UNANIMOUSLY (7-0).
AGENDA ITEM #9 - PUBLIC HEARING TO RECIVE COMMENTS ON ORDINANCE 11-04, A
PROPOSED TEXT AMENDMENT TO THE TOWN OF FOUNTAIN HILLS ZONING ORDINANCE,
ADOPTING CHAPTER 24, MEDICAL MARIJUANA USES.
Mayor Schlum declared the public hearing open at 8:00 p.m. and there being no additional speakers he closed
the public hearing at 8:00 p.m. (For discussion and comments from speakers see Agenda Item #8 above.)
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AGENDA ITEM #10 - CONSIDERATION OF ORDINANCE 11-04, A PROPOSED TEXT
AMENDMENT TO THE TOWN OF FOUNTAIN HILLS ZONING ORDINANCE, ADOPTING
CHAPTER 24, MEDICAL MARIJUANA USES.
Councilmember Hansen MOVED to approve Ordinance 11-04, a proposed text amendment to the Town of
Fountain Hills Ordinance, adopting Chapter 24, Medical Marijuana uses.
Councilmember Dickey said she wanted to review the timeline so that people will know that there will be other
opportunities for public comment besides what they do locally. She noted that one deadline is actually
tomorrow -- the public comment to DHS, the regulating agency. She stated that they are going to issue revised
regulations on January 31st and then people can make public comments again until February 18th. She added
that it goes into effect on April 13th and dispensaries most likely will not be in operation until August or
September. She noted that an outright ban would not comply with what c ould be called reasonable but the
current proposal is really narrow. She said that people still have an opportunity to go to DHS to see how they
write the rules and regulations if there is something they want on that level because the Town obviously has t o
comply with what they come up with.
Mr. McGuire commented that for instance the comment related to use of funds, minimum contributions to
community efforts, those are the types of things that DHS would be more likely to be able to implement if
anything at all. He said that that certainly falls outside of the Town's authority but they are non -profit facilities
so it is worthwhile to present comments at the rule making level.
Councilmember Hansen stated that she read that Phoenix is going to require a use permit and charge $1,300 for
it.
Mr. McGuire advised that there are two issues there that staff tried to shy away from a little bit. He said that
some communities are using the use permit to hold a public hearing and provide an opportunity for locati onal
discussions prior to implementation of ordinances. He added that staff did not feel it made sense for the Council
to hold a public hearing for which there was no outcome other than that the dispensary was going to go in the
selected location. He stated that the licensing issue is interesting because under State statute they are prohibited
from having a license be more than $5,000 but Phoenix has stepped out there with a use permit fee because of
the flexibility surrounding where they are allowing them. He noted that their categories are much broader than
the Town's and other municipalities (one of the most flexible communities). He said he believes this is to have
the staff resources to evaluate the numerous locations -- to offset those costs. He added that the Town will not
have much of a cost issue.
In response to a question from Councilmember Dickey, Mr. McGuire replied that multiple communities have
raised the issue of taxation and there are two different discussions -- at the DHS level he has been told but he has
not heard directly from anyone at the State Department of Revenue directly that they are interpreting the State
tax authority as it already exists for transactions at these facilities. He added that he has not confirmed that and
it seems a little odd. He stated that he has been told by the Tax Commission that one of the earliest things they
are going to try and have introduced at the Legislature is to have a model city tax amendment in place so that
municipalities have local tax authority in place sometime during this calendar year to be able to tax the
transactions as well.
Councilmember Dickey SECONDED the motion.
There being no further discussion, the Mayor called for the vote.
The motion CARRIED UNANIMOUSLY (7-0).
Mayor Schlum thanked everyone for their input and comments. He also commended staff on their efforts.
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AGENDA ITEM #11 – COUNCIL DISCUSSION/DIRECTION TO THE TOWN MANAGER
Items listed below are related only to the propriety of (i) placing such items on a future agenda for action or (ii)
directing staff to conduct further research and report back to the Council.
A. NONE
AGENDA ITEM #12 – SUMMARY OF COUNCIL REQUESTS AND REPORT ON RECENT
ACTIVITIES BY THE TOWN MANAGER.
Mr. Davis will follow up on the all mail ballot issue as well as the smoke shop ordinance.
AGENDA ITEM #13 - ADJOURNMENT
Councilmember Contino MOVED to adjourn the meeting and Councilmember Dickey SECONDED the
motion, which CARRIED UNANIMOUSLY (7-0). The meeting adjourned at 8:05 p.m.
TOWN OF FOUNTAIN HILLS
By __________________________
Jay T. Schlum, Mayor
ATTEST AND
PREPARED BY:
_________________________
Bevelyn J. Bender, Town Clerk
CERTIFICATION
I hereby certify that the foregoing minutes are a true and correct copy of the minutes of the Executive and
Regular Session held by the Town Council of Fountain Hills at Town Hall on the 6th day of January 2011. I
further certify that the meeting was duly called and that a quorum was present.
DATED this 20th day of January 2011.
_____________________________
Bevelyn J. Bender, Town Clerk