HomeMy WebLinkAbout1994.0124.TCSM.Minutes TOWN OF FOUNTAIN HILLS
MINUTES OF THE SPECIAL SESSION OF THE FOUNTAIN HILLS TOWN COUNCIL
JANUARY 24, 1994
A Special Session of the Fountain Hills Town Council open to the public was convened and called to order by Mayor
Cutillo at 9:00 a.m.,Monday,January 24, 1994,in the Fountain Hills Town Hall Council Chambers located at 16836
E. Palisades Blvd., Building C,Fountain Hills, Arizona.
ROLL CALL-Following the pledge to the flag and the invocation by Councilwoman Tibbetts,roll call was taken.
Present for roll call were the following members of the Fountain Hills Town Council: Mayor John Cutillo, and
Councilmembers Peg Tibbetts,Wally Hudson,Frank Clark and Don Lawrence. Also present were Town Manager
Paul Nordin,Town Attorney Bill Farrell,Town Clerk Cassie Hansen and Director of Community Development,Gary
Jeppson. Absent were Vice Mayor Mike Minarsich and Councilman Bill O'Brien.
AGENDA ITEM#2. - CONSIDERATION OF INITIATING CHANGES TO THE ZONING ORDINANCE
AND THE SUBDIVISION ORDINANCE OF THE TOWN OF FOUNTAIN HILLS PROVIDING FOR A
MAXIMUM NUMBER OF DAYS THAT MATTERS UNDER CONSIDERATION BY THE PLANNING AND
ZONING COMMISSION MAY BE DELAYED AND/OR CONTINUED.
Mr.Nordin explained to the Council that staff had,over Friday and Saturday,prepared a document for the Council
and that due to the shortness of time,would like the Council to understand that the document was a draft,prepared
quickly to get the process moving. Mr. Nordin then handed the document out to the Council, explaining that staff
had realized last Friday, while working on the document, that dealing only with the rezoning section of the code
would not address all of the possible items that came in front of the Planning and Zoning Commission (hereafter
referred to as P&Z). He said that what staff had done,therefore,was to prepare a draft document that could begin
an amendment process that would insure that all items, not just rezonings,that were required statutorily for P&Z to
act on, would have a limited amount of time within which the P&Z could act on one way or another. If they did
not take action within that time frame, it would automatically go to the Council with a negative recommendation.
He said that staff did not know if they had complied with the intent of the Council request and would take whatever
direction the Council gave. Mr. Nordin said that if the Council proceeded with initiating this request, that there
would be quite a bit of discussion yet to take place and this was by no means a final document. He further said that
staff was not even particularly asking the Council to act upon the document as presented and that it was meant to
use as the beginning vehicle. Mr.Nordin likened it to the process used by the Legislature where a bill needs to get
into the hopper where it subsequently gets changed along the way. He said that staff had understood that the Council
had wished to act expeditiously and that is why they had prepared a vehicle by which the Council could begin the
process. Mr. Nordin then turned the floor over to the town attorney and planning director to offer whatever
comments they had.
Mr. Farrell began by saying that, due to the rather large crowd in attendance, he would review the reason for the
Monday morning meeting,out of normal order. He said that as the Manager had indicated,that all changes,either
to the text of the Zoning Ordinance or the Town Zoning Map or any rezonings of property,require that the text or
the map of the Town be amended by form of an ordinance. All changes to that text require,by the current ordinance
and by state law,that they be referred to the P&Z Commission for approval or recommendation for denial. The state
law also requires that public notice of changes be published in the official newspaper of the jurisdiction at least 15
days prior to that period of time in which the public hearing and the text amendment or rezoning was going to be
considered. Last week, the schedules of the regularly scheduled meetings of both the P&Z Commission and the
Council had been studied as well as the publication dates of the newspaper. It was subsequently determined that
if the matter was to get to the Commissioners for their consideration on Thursday,February 10,which was not their
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next meeting but the one following their next meeting, that it would be necessary to publish a public notice in the
issue of January 26. The next regularly scheduled Council meeting after the P&Z Commission would be February
17. He said it was staffs request that the Council would now initiate authorization to publish the public notice of
the proposed changes to the Zoning Ordinance and request that the P&Z Commission give these changes their
consideration on February the 10th and forward to the Council either recommendation for approval, denial or
modification so that the Council could act upon it on February 7, 1994. Mr. Farrell said the essence of the changes
were,in fact,to put an outward limit on the amount of time in which any of the matters referred to the Commission
were allowed to be heard. The 21 day period that currently appeared in the revised Zoning Ordinance did not
indicate that the P&Z Commission would lose any jurisdiction after that 21 days. Although the code said that action
should be taken within 21 days of the public hearing,it did not say that action must be taken in order for the matter
to go forward. Mr. Farrell explained that case law in the state clearly indicated that the P&Z Commission, when
one was established, must give either an affirmative or negative recommendation in order for the matter to go
forward to the governing body,whether that body be the Mayor and Council,the County Board of Supervisors,etc.
Without either a negative or positive recommendation,matters could languish and the Council had no way under the
code to take that jurisdiction away from the P&Z Commission. Theoretically, this would mean that a matter could
stay in front of the P&Z Commission indefinitely without any ability for the governing body to act on the particular
matter. He said that the proposal that Mr.Jeppson had worked on would indicate that if,the period of time exceeded
21 days from the close of public hearing, that there would be a presumption that the land owner's request should
be denied, not approved. At that point in time the request would be forwarded to the Council with a presumption
on the part of the P&Z Commission that the request be denied. He said that the one exception that staff attempted
to put in was where the continuance went beyond 21 days with consent of the landowner. He said that would cover
those instances where the landowner and the Commission agreed that additional time was necessary. Where the
landowner did not agree and the 21 days passed, then the landowner would have the opportunity to bring the case
forward to the Council with the negative recommendation. Mr.Farrell said,if the Council authorized staff to publish
the notice at this meeting, the matter would be on the Commission's agenda for the 10th. He said the notice that
would be published would indicate that there would be hearings on the 10th and the 17th.
Mr.Nordin reiterated that staff had attempted to reasonably mirror the intent of the Council. He said staff felt that
it would have been an error on their part to put forth only a change with regard to rezoning requests. Mr. Nordin
said staff was afraid that the Council would have thought that the action,with regard to that one section,would have
taken care of the problem in all areas. Since it would only have applied to rezoning requests,staff felt it necessary
to make the changes broader. Mr. Nordin said staff felt it was the basic intent of the Council to take care of the
entirety of the situations that could go in front of the P&Z Commission.
Mayor Cutillo asked if the landowner requested the delay, causing it to fall beyond the 21 days,if that would start
the clock again. Mr. Farrell replied affirmatively, explaining that the 21 day cycle was the farthest period of time
between two regularly scheduled P&Z Commission meetings. Since the Commission meets on the second and fourth
Thursdays,counting a fifth Thursday in the month, 21 days would be the maximum period between meetings. He
said an applicant could ask for a request to continue and the Commission could deny it. Mayor Cutillo said it was
good to see so many people present but that the issue was something they had already taken action on when they
adopted the Zoning Ordinance which was currently in effect. He said the only reason for the meeting today was
because it appeared that the message was not clear that was sent. He said that he had hoped that the Council would
not have to be there today, but that apparently P&Z didn't believe that the Council meant that they (P&Z) should
only take 21 days to act because they hadn't done that. So it was now up to the Council to put some teeth into it
because if they (Council) meant what they said, they had to have some way to back it up and this was what this
request would do.
Councilman Hudson said that this action simply set the program up for P&Z to study and see what they thought.
It also set it up for two public hearings and possible amendments by the Council at a later date. Mr. Farrell said
the amendments would be in the form of an ordinance. Councilwoman Tibbetts said the public hearing was what
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triggered the 21 days and that she would assume, in her own mind, and would like clarification if it was not true,
that prior to that time, P&Z and the applicant had ample time to review all of the proposal being presented. Mr.
Farrell said if the landowner or landowner's agent brought in all of the necessary material,staff could distribute the
material and it would seem that if it was in anyone's best interest to make sure that staff and the Commission be
given as much information as possible prior to scheduling the public hearing,it was the applicant's. He further said
that the applicant that would come in ill-prepared and tried to take advantage of the 21 day rule would probably meet
the same type of resistance at the Council level as they would at the Commission level. A well-prepared applicant
that had a difference of opinion probably would not, but the public hearing was scheduled by the staff when the
applicant had submitted the proper materials and paid the fees.
Mayor Cutillo made a MOTION to instruct staff to publish the public notice of the proposed changes to the Zoning
Ordinance for the Town of Fountain Hills as stated and that the Planning and Zoning Commission review this in their
meeting February 10th. SECONDED by Councilman Clark. With no further discussion from the Council,Mayor
Cutillo asked for discussion from the public.
Bob Thomas,Chairman of the Planning and Zoning Commission, asked the Mayor and Council to be well advised
that the Commission was quite aware of contents of the new Zoning Code which became effective December 18,
1993. He said that the case which precipitated the Council's action was the Pulte Home Subdivision and that staff
and the Community Development Director had chosen to process the application under the old code since it was
submitted prior to December 18, 1993. He said he was objecting to the protocol involved. Mr.Thomas said he had
met the Community Development Director last Friday afternoon and discussed with him some changes in the by-
laws. He then referred to the P&Z agenda item for consideration at P&Z's meeting next Thursday which called for
consideration of amendments to Sections 3.D of the P&Z Commissions by-laws. Reading from the agenda he said,
"Recommendation to Town Council:the Commission shall forward a recommendation to Town Council,its fmdings
and/or actions in writing, with respect to the merits of the application within (and then the insertion) the time
specified in the appropriate code governing the matter before the Commission." Mr.Thomas said that as it had been
pointed out in previous discussions,there were considerable documents which constituted part of the Zoning Code:
the Zoning Code itself, the Subdivision Code. Within the Zoning Code there was the opportunity for applicants to
amend the Zoning Code, for landowners to ask for rezoning,for landowners to ask for special use permits. All of
these were different conditions and could require different considerations and periods of consideration. He went on
to say that in addition,there was the Subdivision Code which applied to applicants seeking subdividing or replatting
or platting a subdivision. In each of those codes it was the intention of the Community Development Director and
himself that those individual documents specified those periods under which the P&Z Commission would have the
opportunity to consider the testimony before them following the public hearing before delivering their
recommendation to the Council. He said it was a matter of protocol since the P&Z Commission already had it on
their agenda for Thursday. Mr. Thomas said their packets were distributed to them on Saturday afternoon by the
Community Development Director or a member of his staff and that there was no indication in the packet that there
was to be a meeting of the Council the following Monday morning. He said it only so happened that some of the
Commissioners happened to drop into the Post Office Saturday morning and noted on the board that there would be
a meeting of the Council with the single item agenda that pertained directly to the affairs of the P&Z Commission.
He said he felt that it was a matter of good communications that it would have been well for the Council to see to
it that the Commission was advised of this special meeting,particularly since the meeting was to be held 9:00 a.m.
Saturday morning,the first business opportunity following the posting of the notice. He said that this was already
on the P&Z docket and that the boards seemed to be going parallel paths. Either the Commission or the Council
could originate changes to the Zoning Code and whether it was the Council or Commission, it had to go before a
public hearing. He said while they appreciated that there was a 15-day waiting period while the matter was being
advertised for the public, he would have no problem with the Council originating this measure other than the fact
the P&Z Commission was already in the process of so doing. The Community Development Director was aware
of the fact because he wrote the verbiage that Mr. Thomas had given his tacit approval to last Friday afternoon.
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Mayor Cudllo asked Mr. Thomas that if the Planning and Zoning Commission was about to consider this matter,
who had directed them to do so. Mr.Thomas replied that his first encounter with it had been Friday afternoon when
he had sat with Mr.Jeppson and looked over the agenda for the meeting coming up next Thursday. Mayor Cutillo
then asked if Mr.Thomas had a feeling as to whether or not there was support for this on the P&Z and Mr.Thomas
replied that he did not. He said that,as Chairman, he had gone over the agenda with the Community Development
Director and saw the proposal that was being made. Mr. Thomas said that the Commission had already indicated
to the Community Development Director that they would like some changes made in the by-laws pertaining to their
voting procedures. He said that maybe the entire Council was not aware that the P&Z did not presently operate
under Robert's Rules of Order,whereas the Council did. Mr.Thomas further stated that the Council required a vote
of four to pass on any action, whether a procedural or action matter, and this was in contrast to the action of the
Commission. He said they felt that they should frame the Commission into a closer relationship with the procedures
of the Council,the one difference being that they would maintain the rule of four so that if there were five members
of the Commission present,it would still take four members to make a recommendation to support or to deny or to
alter any application that came before the Commission before sending it on to the Council. He said they felt that
the simple majority called for by Robert's Rules of Order was not sufficient but that that would be the only
exception. He said he had always been under the assumption that they were operating under Robert's Rules of Order
but it had become evident that they were not when they had the case where a motion was made to cut off debate
and call for the question. Robert's Rules of Order called for a two-thirds vote which on the Commission would
represent five votes. In that case, the call for the question passed by a vote of four to three. At the Council level,
that would not have been sustained since the Council operated under Robert's Rules of Order. Mr. Thomas
summarized by saying that they had asked the Community Development Director to make the appropriate changes
in the by-laws. The Director, recognizing the necessity to put some teeth or clarification into the holding period,
did insert the words, still subject to approval of the P&Z Commission, "the time specified in the appropriate code
governing a matter before the Commission". He said he felt this was the appropriate manner to proceed but it was
still up to the Council to decide.
Councilman Clark said that an applicant had access to the ordinances to review if he chose in order to determine
what his rights were. He then asked if the applicant had the same access to the by-laws and would those by-laws
carry the same degree of legality. Mr.Farrell said that the by-laws were public record whether the applicant would
think to ask for them or not. He said the Commission was free to adopt by-laws and they had,since their inception,
instituted a rule of four which required the four affirmative votes. The applicant might have separate rights that the
Council would not. Mr. Farrell gave an example, citing a matter that had languished for a long period of time for
no apparent reason, saying that applicant could bring a legal challenge against the body to compel them to perform
their duty. The Council did not have that same alternative. In order to get jurisdiction, the Council must receive
either an affirmative or negative recommendation,the mere passage of time was not sufficient. He said that normally
the applicant should make an inquiry as to what the procedure and timing was. All of those documents were
available either free or at nominal cost.
Mr.Nordin clarified by using a visual demonstration of the different documents involved and how they interact with
each other. Mr.Jeppson said that the Commission dealt with amendments to the Zoning Ordinance and Map,special
use permits,planned unit developments and preliminary plats. Currently in the ordinance,for rezoning it had a 21
day continuous allowance. For a special use permit it stated that it could be continued to the next regularly
scheduled meeting which could be 14 days or 21 days. Because there were different time frames in the Zoning
Ordinance, the by-laws amendment referred to whatever governed the matter before the Commission and that was
not necessarily 21 days, it could be 14 days. The language was there saying that the Zoning Ordinance or
Subdivision Ordinance language was what would prevail rather than specifying a number of days in the by-laws.
Councilman Clark said he appreciated the information but did not feel that he was getting an answer to what he was
driving at. If he was a new applicant that had just moved to town and he wanted to know what would govern his
actions, the Commission's and Council's actions, he said he thought he would know enough to ask to look at the
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ordinances. He then asked if it was or wasn't common practice to have a set of by-laws for a Commission to operate
under. Mr.Farrell said it was not uncommon for by-laws to be adopted by any advisory group so that the situation
of the P&Z Commission having their own by-laws was not unusual or out of the ordinary. Councilman Clark asked
that if he were an applicant, would he know that. Mr. Farrell replied that the applicant would probably ask at the
counter what the procedure was, not necessarily for a copy of the by-laws. He said he was sure that staff would
explain that the procedure began with a public hearing,then went before the Commission,and it probably would not
include anyone pointing out the uniqueness of the by-laws. He said the Commission was obligated to follow the
by-laws that they'd adopted and they obviously could not violate their own by-laws which they had not in this
instance. Councilman Clark then clarified that the Council was not bound by those by-laws but the ordinances. Mr.
Farrell clarified that the request before the Council would do nothing to change the by-laws and rule of four,rather,
it would put an outside limit on the amount of time that the process could take. He said that must be done because
case law in Arizona said that the next level,i.e.,the Mayor and Council,had no jurisdiction to hear the matter until
it had either an affirmative or a negative recommendation. He further said that this would not force members of the
P&Z Commission to vote one way or another but simply put a 21-day limit on the period of time that the application
could stay with the Commission.
Mr. Nordin reiterated that the proposed changes that the Community Development Director had made to the
Commission by-laws were intended to be consistent with the proposed changes to the ordinance itself. Mr.Farrell
said the by-laws were mutually exclusive from the ordinance and that the P&Z Commission could amend their by-
laws every time they met. Putting a limit on the exterior amount of time an application could be before the advisory
board would do nothing to the by-laws of the Commission. Mr.Nordin said this item had not been put on the P&Z
agenda because it had not yet come before the Council but if the Council acted on this item today, the P&Z agenda
item would be adjusted accordingly.
Sam Cioffi, current Vice Chair of the P&Z Commission, said he had a couple questions. He said he found it
interesting that the meeting was opened with an explanation as to the timing of this and why the meeting was posted
Friday afternoon and held on a Monday morning in order to get on their agenda February 10th. He said he didn't
understand what the magic of the February 10th meeting might be but that the Town Manager had gone to great
pains to explain that the quality of the draft was a result of having shortness of time and working on a Saturday and
having to produce this document rather hurriedly. He said he didn't understand the magic for having that done
because that was generally a routine housekeeping issue in most cases. He said it seemed to have evolved into
something greater than that for reasons better known to the Council than to members of the P&Z Commission.
Mayor Cutillo responded by saying that the area there was whether or not the Commission was operating under the
old or new zoning law. He said he felt the intent of the new zoning law was very explicit but the P&Z Commission
chose to ignore it and that was why the meeting was called.
Mr.Cioffi said the Community Development Director made that determination,not the Commission. He said it was
the staff under the direction of the Town Manager that made that determination,not the Commission. Mayor Cutillo
pointed out that it was the Commission that voted. Mr. Cioffi replied that it was based upon the recommendation
of the Town Community Development Director as to what the status of the application was; however, there were
other issues also. He said that 21 days, according to Mr. Farrell's comments, began upon the close of the P&Z
Commission's public hearing. He said the proposed changes to the ordinance changed that significantly to where
the 21 days would actually begin at the beginning of the P&Z Commission's public hearing,not the close. Mayor
Cutillo said that there was a reason for that also since the public hearing could be continued for an indefinite length
of time. Mr.Cioffi said he just wanted to reiterate that Mr.Farrell explained this in a way that it was generally held
by most communities,and it was upon the closing of a given hearing. He said his other question dealt with the fact
that the Town Manager made a point of making it clear that if the Commission failed to act it would be a negative
recommendation to the Council which in fact was little technical difference he said he didn't believe the Council
had any greater requirement for voting a majority on negative or positive recommendation from the Commission.
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He said that whether or not it came from the Commission as a result of a recommendation for approval or denial
had no bearing on what the Council had to do. Referring to Councilwoman Tibbett's question, he replied that the
Commission rarely had the opportunity to deal with these matters before they appeared in their packets. He said their
packets appeared on their doorsteps sometimes on Saturday,sometimes on Monday or Tuesday. Mr.Cioffi said that
the Commission generally had their first explanation at the public hearing,the same time the newspaper and everyone
else in town saw it. He said they had the opportunity to review the packet in private but they were not privy to the
applicant's rationale and a lot of information that came out at the public hearing any earlier than anyone else. To
ask them to absorb materials of significant nature to decide the future of the town and its direction in a 45 minute
public hearing when there were other things on the agenda at the same time, was sometimes difficult. He said the
ordinance, in terms of how crafted, probably responded to many of the concerns the Council had about the P&Z
Commission having the ability to interminably extend or continue items. This particular change,particularly the way
it was presented,smacked of other issues that obviously were not being discussed here completely but were probably
on many people's minds.
Mayor Cutillo thanked Mr. Cioffi and said he agreed that it was certainly on his mind. Mr. Cioffi said he believed
that. Mr. Sam Coffee said that a couple of things bothered him,one of which was that a meeting had been posted
on Friday,no telling what time of the day since the receptionist didn't even know about it until this morning which
gave the people of this town < > little time to even know about the meeting and then have an opportunity to
present themselves here to respond to these types of issues. He said that the other thing was that when he came into
this meeting and found out that the P&Z people hadn't even been consulted by these folks when they put this
ordinance together and he didn't understand that at all. He questioned why the Council would not sit down with
these people who this ordinance obviously affected and talk to them before putting an ordinance together for
publication in the town paper was beyond him. Mr. Coffee said it seemed to him that it was an obvious, if not a
violation of law with the way the meeting was published and conducted,but certainly a violation of the spirit of the
law.
Id)
Mr.Farrell replied by saying that"A",there was no ordinance. "B",they were asking the Council to publish a notice
so that 15 days after that notice,on the 10th of February,all of the citizens could discuss this matter to any length
they so desired before the P&Z Commission. If the P&Z Commission was courteous enough to honor the request
by sending it forward on the 17th, then the Council would have a public hearing and if the Council decided, then
an ordinance would be drafted that would be posted again with public notice and adopted,perhaps,the night of the
17th or perhaps on a subsequent night. As to the public notice,24 hours was required,and it was posted on Friday.
He said that nothing was being passed today, nothing was being forced on anyone today, they were merely trying
to meet a January 26 publication date so that on February 10th, the matter could be considered at a full public
hearing with all the input of the P&Z Commission at that meeting. If they saw fit at that time to forward it on with
a recommendation,then they would do so. He reiterated that nothing was being passed at this meeting,nothing was
being adopted,they were merely asking permission to publish a notice so the public could be aware of the February
10th meeting.
Mr. Nordin said that it would be, in effect,a Council sponsored initiative. Mayor Cutillo said he could agree with
Mr.Coffee's concern and that the Council had had these kinds of meetings before where it was on an item that was
really not of great concern and that he was surprised that there was this kind of response. The Mayor said it was
like Mr.Farrell had said and that the Council was not taking any specific action that was going to change anything
today. They were simply getting the wheels in motion making it possible for the public to have their chance to
speak. Mr. Coffee asked if the language hadn't already been drafted for the ordinance without consulting the
Commission and followed by saying that that was his point, that it was drafted without their consultation and it
would directly affect the way their business was run. Mayor Cutillo replied that the Commission would have every
chance to express their concerns along with everyone there and that's what the action today was for, to begin the
process.
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John Leonardi asked why the special meeting was required because it seemed to him like the Council was in a hurry.
He said that maybe he had missed something since he didn't hear too well but it just seemed like this was being
rushed and asked for an explanation of the special meeting. Mr.Farrell reiterated that in order to get the matter on
the February 10th agenda of the P&Z Commission it had to be advertised 15 days prior to the meeting. He said the
town's official paper published once a week and that would be on January 26th. In order to get a notice in on
January 26th, there had to be an official Council action and the only available time was Monday morning. If they
had waited until the next regular Town Council meeting on February the third,and asked at that time,then the notice
would not be able to be published until the meeting of the P&Z Commission scheduled for March 10th, 1994. By
adding the special meeting that morning, they would be able to start the process during the month of February, if
they waited till the February third meeting, they wouldn't have been able to start the process until the month of
March. All the meetings, regular or special, were posted at the post office. All the changes to the Zoning Code,
whether minimal or the brand new Zoning Code, were published in the public newspaper and the reason that the
ordinance was drafted without consultation with the P&Z Commission was that it was being initiated by the Mayor
and Council. Mr.Farrell continued by saying that the P&Z Commission,as the Chairman well knew,could initiate
any changes they wanted without asking the Council-they would direct staff to initiate a change in the text. If the
Council wanted to, they would ask staff to initiate a change in the text. There was nothing unusual about the
procedure. The timing was to make the January 26th issue of The Times.
Mr.Leonardi then asked why it was necessary to get it scheduled for the 10th. He said he was told why they were
there today but why was it necessary to get it scheduled for the 10th, why not kick it over to the next regularly
scheduled meeting. Mr. Farrell said the Town Council had decided that they would like this issue brought before
the P&Z Commission at the earliest possible date. For whatever reasons, they felt they did not want to wait until
March, staff laid out the option dates and it was convenient to go ahead and do it on the 26th and ask the
Commission to consider it on February 10th as opposed to March.
Mr. Leonardi then asked if Mr. Farrell's instructions were to prepare this A.S.A.P. to which Mr. Farrell replied
"correct". Mr. Leonardi said that's what he wanted to know and then asked if those instructions were from the
Council and the Mayor or who it was from. Mr. Farrell replied that it was from the Mayor and Council.
Tom Henry,member of the P&Z Commission, said he had a few comments regarding Peg's question as to whether
or not the P&Z Commission got the information they needed. He said that in some cases a developer has dropped
information on the Community Developer's desk on the day of their meeting so in many cases they don't get the
information ahead of time and just the way the system works,they were supposed to consider that information that
night when they got there. The other thing was in talking about this time critical situation of the meeting this
morning and that some of the comments the Mayor had been making that he almost got the impression that this thing
was about that P&Z hadn't acted the way the way the Council wanted them to act and that"by golly" the Council
would show them how to act. He said he got the impression that the Commission was kind of being slapped on the
hands because the Council had the ultimate authority,which it did,and they're going to show the Commission. He
said that maybe he was wrong but that he also got the impression that this was not necessarily citizen motivated.
Mr.Henry said he doubted that in the last week the Council had received hundreds of calls from citizens of the town
saying that something needed to be done about the P&Z. He said that maybe he was naive but that it was possible
that the Council had had some input from developers saying that something had to be done about the P&Z.
Mayor Cutillo said that they were continually getting the same feeling of anti-developer sentiment from some of the
P&Z people. He then told Mr. Henry that he was right and that there probably was something deeper as far as he,
the Mayor, was concerned. Mayor Cutillo said that some of the actions of the P&Z people greatly disappointed
him not their decisions but the way they had gotten to them. He said that some of the P&Z Commissioners were
argumentive,insulting,downright disrespectful to the people that came before them. He said that that was not what
he would like to see as representative of the town. He again said Mr.Henry was right,there was something deeper
as far as he was concerned, but that he was only speaking for himself.
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Mr.Henry answered by saying that,again,he felt that this thing was not necessarily citizen motivated and regardless
of the Mayor's personal feelings about members of the P&Z, it still seemed to him that it was still "we're going to
show them"and the point was,that it was not anti-developer or anything like that on the P&Z. But that the ultimate
goal of the town should be,and the Council should be,that if any developer came forward with any project,it should
be looked at and it should be worked together between the city and the developer and it should be in tune with
managed growth and correct aesthetics and the impact on our schools. We should work together,not separately and
when a final decision was made,it shouldn't be just because the developer wanted and thus had to have it. He said
that maybe the town wanted one thing,the developer wanted another and the two work together to get a final product
that's best for both. It shouldn't be what's best for MCO is best for the town-it should be what's best for the town
is what's best for MCO.
Mayor Cutillo said that again, it seemed that Mr. Henry was picking specifically on MCO. He asked if there was
something underlying there also. Mr. Henry said that twice he had gone over to MCO on projects and offered to
volunteer his time to help them redesign the projects so they could get through,would look good,they would be able
to sell their land and have something good for the town. He said that in the first case, which was Crystal Ridge,
they had said"no thank you very much". In the second case,which was a New American project which hadn't come
to the Commission yet, he went over early, even before it had come to them. He said he had told them that what
they currently had did not meet the Commission criteria and would never pass and offered to work with them. Mr.
Henry said he was told that someone would call him back that same day because it was a great idea. He said that
conversation was over two months ago and he was still waiting for it to happen. He said he was not against MCO
or any developer but that the town and the Council specifically had an obligation not to just accept anything a
developer says they have to have. It was the Council's obligation to represent the citizens also and that all have to
come together and work together. It wasn't they want this we have to give it to them. It was called working
together and getting the best product for both - they (the developers) had an opportunity to sell their land and they
(Commission,Council)had the opportunity to give something good to the town. That was the way it was supposed
to work.
Mayor Cutillo said that since Mr.Henry had alleged that the developer gets anything he wants,if Mr. Henry could
be more specific. Mr. Henry said the P&Z Commission had spent a lot of time last year, 6 months in public
hearings and everything else,to do the land disturbance ordinance. He said they came forward with it and gave the
developer about 90% of what they wanted and the builders got about 90% of what they wanted. Mr. Henry then
said that at the last minute, there was another proposal brought forward from the town staff that gave new language
to put into what the Commission had spent 6 months doing and staff had only spent about 3 days on. Basically,the
new language gave the developer everything he wanted and the builders everything they wanted and that's a specific
example. He said that the Council had simply said, "yea,that sounds good"and as a staff recommendation it would
be put in. Referring to the Mayor,Mr.Henry said he(the Mayor)was in favor of Crystal Ridge but that fortunately
enough citizens came forward and said they didn't want that in Fountain Hills,redesign it. Mr.Henry said that was
another example of where the Mayor would have been happy with the original design of Crystal Ridge.
Mayor Cutillo said that Mr. Henry was probably right although it had never come to a public vote, but that he
wouldn't deny that he probably would have accepted Crystal Ridge although he didn't completely study it. Mayor
Cutillo asked Mr. Jeppson if he concurred with what Mr. Henry had said as far as the request from the developer
as to some changes he wanted to see on the hillside,did the developer get everything they wanted. Mr.Jeppson said
that as he recalled, the developer had wanted no vertical limitation on cutting and filling and did not get that sort
of a waiver. There was now the opportunity to come to the Council and get a waiver but that was a constraint the
developer did not want to have in the ordinance that they were limited to the vertical amount of cut or fill they could
have.
Mr.Nordin added that towards the end of the process,he had been asked to go to a meeting with some MCO folks
wherein they specifically expressed their desire for no vertical limitation at all. He had told them that it was his
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Page 8 of 11
impression that the Council, at that point in time, was willing to have a vertical fill limitation waiver but that the
Council wanted that vertical fill limitation waiver to be granted in the Council jurisdiction rather than the P&Z
jurisdiction. He said that he was clearly informed at that meeting by MCO that they did not want any vertical
limitation at all.
Councilman Clark said that he did not want to get involved in an argument either but that he had to recall how he
remembered the action the Council had taken. As he recalled,one of the documents the Council had received was
blue in color and that had come from the developer. Mr.Jeppson said that had been the general plan. Councilman
Clark said that his point was that he didn't know how much of what the developer wanted got into the P&Z
recommendation and/or how much of it came to them from staff. What he does remember was receiving a package
that was drafted by the developer and the Council sat all day one Saturday and cut out probably 95% of what they
had asked for because the Council was going in the direction of the Commission and staff. He said that anyone that
wanted to make that kind of an accusation was entirely off base and that was the kind of thinking that would cause
animosity between the two groups. Councilman Clark said there were two councilmen that led the attack, the
discussion, the direction, and the entire Council went along with cutting almost everything out that the developer
wanted. How this could be interpreted as being led by the developer,he could not see. He said he heard often that
this Council was in the pocket of MCO. Councilman Clark said he could not speak for seven members but that he
would say here and now that he was not,never had been,never would be and that there was absolutely nothing that
anyone in the room could say,that would lend any credence to such an accusation. He said he was getting tired of
hearing it-if anyone had any ounce of proof or even any indication that that was so,please put it before the public
because it was absolutely untrue as far as he was concerned. He said he couldn't speak for the others but that he
had not, in four years, seen any evidence that that was so. Councilman Clark suggested that accusations and
innuendo come to a halt unless someone could come up with some kind of proof.
Councilman Hudson said he thought discussion had gotten off of the agenda item and that this sort of discussion
should be done in the press where it belonged. He said he would be glad to hear any other comments that dealt with
Low the issue on the agenda. Mayor Cutillo said Councilman Hudson was correct and asked if there were any more
comments that they be kept specific to the agenda item.
Councilman Clark said he would give MCO equal consideration with anybody, any other citizen in this town
regardless of who liked it or not. He said they deserved the same consideration of any other citizen it the town.
Dave Dawkins said he had two things. One was that the Council and the city had,for about a year or year and a
half period, spent a great deal of money developing a master plan. He said that this master plan had gone through
a number of drafts and it appeared to him that every time an amendment to this master plan came through it went
through as a slam dunk. He said that now they were asking to limit the P&Z people to an extremely short period
to recommend an amendment or change to a draft that they spent a lot of taxpayers money on and seemed to ignore
in its entirety. The other point was that the statement,paraphrased,that he heard at the last P&Z meeting from Mr.
Jeppson was that quote, "We are under direction to bend over backwards for the developer". Mr. Dawkins said he
would like to know who"we"and"the"are....all developers or the developer,that there was only one"the"developer
in Fountain Hills.
Mayor Cutillo said he was at the same meeting and that he felt Mr. Dawkins had slightly exaggerated what the
Planning Director had said and then asked the Director to correct that himself. Mr.Jeppson said that as he recalled,
the statement was, rather, that they (staff) tried to be cooperative with development in development of the
community. When asked why they, as a staff, were recommending an R1-RUPD in an area presently zoned R-5,
when they were going from an opportunity of having well over 1,200 units down to 98 units,and being questioned
why was staff recommending approval of such an application. He said that he had said that they were striving to
be cooperative which was in no way to say that staff would recommend everything that an applicant would ask for.
The applicant could,in many cases,testify that they had gone through quite a bit of staff review on a technical basis
Minutes of the Town Council Special Session - 1/24/94
Page 9 of 11
and there were numerous things that staff would recommend contrary to the applicants wishes. But on the other
hand, the staff worked to develop the town according to the towns plans and ordinances.
Mr. Cioffi said that the side arguments made good press but that they were diverting everyone from the basic issue.
When he was first appointed to the P&Z Commission, he had sat in the Mayor's living room and they had talked
about the possibility of the Commission and the Council having a meeting over a year ago. He understood that the
Chairman had at least once,since then,also requested such a meeting. He said such a meeting was even scheduled
two or three months ago but was canceled due to other pending business of the Council. He said that it seemed to
be degenerating into a fight among in-laws and probably without real good reason. Mr. Cioffi said that maybe one
way of resolving this and getting around the disciplinary nature or the feeling that this was becoming a disciplinary
action or that they were getting slapped on the wrists or kicked in the < >, he wasn't sure which was true. He
said that even if this action was put off until March,everyone had survived many months,years without this specific
language in the ordinance. Any number of developers,MCO and others,had made application successfully through
the Planning and Zoning process and to the Town Council with the current language. He said he didn't think that
anyone was in danger of having something precipitously done to them or having some rights removed from them
as a result of leaving that alone until the bodies could get together, perhaps at a meeting that the Council called.
He asked if it was inappropriate to have that happen at that point.
Mayor Cutillo said he didn't think anyone was opposed to having a meeting and that they had all generally agreed
that they all ought to sit down together but that for some reason that just hadn't been worked out. The Mayor said
he did not think he would be in favor of delaying this action simply because they had already delayed the applicant
longer than they should have. He said he felt they had to have some consideration for people that came before them
because it costs them money to do so and that to continue to delay it, he saw no benefit. Mr. Cioffi asked if this
was a request for a specific applicant. Mayor Cutillo said that it wasn't but that it would affect that applicant. Mr.
Cioffi said the only reason he saw for the February 10th meeting was that the Sunridge Development happened to
come up for public hearing and that other than that, he didn't see any relationship to any other pending action of
the Council or Commission. He said he suspected that the Pulte application would be resolved one way or another
that evening. He said he was trying not to get involved in that "stuff' but was trying to bring it back to the point
of getting the two bodies together. Mr.Cioffi said the Council was obviously the body in the town that was elected,
that was much more truly representative than the Commission was because of the way the Council was composed
and created. He said he felt the Commission had a voice and that they do represent points of view, certainly
personally and even more generally. He said he would like to see the Council present to the Commission a firm date
or a couple of potential dates in their next packet or even at the next meeting so they could get this off the gun
instead of the feeling they currently had of"let's do lunch sometime". With that feeling you talk about it but it never
happens and maybe it should happen.
Mayor Cutillo asked for further discussion and no one came forward. The vote on the motion was taken and the
motion CARRIED unanimously, 5 aye votes to 0 nay votes.
AGENDA ITEM#4 - CALL TO THE PUBLIC
Councilman Clark said he would like to apologize to the public for the flare up but that he did not apologize for
anything he said. He said that he would suggest that action be taken as soon as possible to have some kind of joint
meeting whether it be at the Commission's pleasure, the Council's pleasure or mutual pleasure.
AGENDA ITEM#5 - ADJOURNMENT
Councilman Lawrence made a MOTION to adjourn. SECONDED by Councilman Hudson and CARRIED
Minutes of the Town Council Special Session - 1/24/94
Page 10 of 11
unanimously.
The Council adjourned at approximately 10:10 a.m.
TOWN OF FOUNTAIN HILLS
By:
John M. tillo, Mayor
�j 1
ATTEST: 044.4..A-4. •.!J • lv - .d,).--)
Cassie B. Hansen, Town Clerk
1
PREPARED BY: b.
ki_g_4-tz,
Cassie B. Hansen, Town Clerk
itiore
CER l'IMCATION
I hereby certify that the foregoing minutes are a true and correct copy of the minutes of the Regular Session Meeting
held by the Town Council of Fountain Hills on the 24th day of January, 1994. I further certify that the meeting was
duly called and that a quorum was present.
DATED this 3rd day of February, 1994.
LiLLL,_
Cassie B. Hansen, Town Clerk
Minutes of the Town Council Special Session - 1/24/94
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