HomeMy WebLinkAbout1994.0303.TCRM.Minutes TOWN OF FOUNTAIN HILLS
MINUTES OF THE REGULAR SESSION OF THE
FOUNTAIN HILLS TOWN COUNCIL
MARCH 3, 1994
A public meeting of the Fountain Hills Town Council was convened and called to order by Mayor Cutillo at 6:30
p.m., Thursday, March 3, 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, Vice
Mayor Mike Minarsich, and Councilmembers Don Lawrence, Peg Tibbetts, Frank Clark, Wally Hudson, and Bill
O'Brien. Also present were Town Manager Paul Nordin,Town Attorney Bill Farrell,Town Clerk Cassie Hansen,
Director of Community Development Gary Jeppson,Current Planner Jeff Valder and Associate Planner Loras Rauch.
Mayor Cutillo read the consent agenda which included:
AGENDA ITEM#2. - ACCEPTANCE OF THE MEETING MINUTES OF FEBRUARY 17, 1994.
AGENDA ITEM#3.- CONSIDERATION OF THE FINAL REPLAT FOR A PORTION OF PLAT 102,TO
SUBDIVIDE LOT 4, BLOCK 2, PLAT 102 INTO TWO LOTS TO BE KNOWN AS LOTS 4A AND 4B,
CASE NUMBER S93-16.
AGENDA ITEM#4. - CONSIDERATION OF THE SPECIAL EVENT REQUEST SUBMITTED BY THE
CHAMBER OF COMMERCE FOR THE BUSINESS SHOWCASE FOR SUNDAY,MARCH 27,1994,FROM
12:00 NOON TO 5:30 P.M. THE EVENT WILL INCLUDE BUSINESS EXHIBITS, STAGE
ENTERTAINMENT AND A STREET DANCE ON THE AVENUE OF THE FOUNTAINS FROM SAGUARO
TO VERDE RIVER DRIVE. THE CHAMBER IS REQUESTING PERMISSION TO CLOSE THIS
SECTION OF THE AVENUE.
AGENDA ITEM#5. - CONSIDERATION OF THE SPECIAL EVENT REQUEST SUBMITTED BY THE
NOON KIWANIS FOR A PANCAKE BREAKFAST ON SUNDAY,MARCH 27,1994,FROM 8:00 A.M.TO
5:00 P.M. LUNCH AND SNACKS WILL BE SOLD IN THE AFTERNOON. THE EVENT WILL TAKE
PLACE IN CONJUNCTION WITH THE BUSINESS SHOWCASE AND THE TOUR DE FOUNTAIN HILLS
AND WILL BE LOCATED AT THE EAST END OF THE AVENUE OF THE FOUNTAINS.
Councilman Hudson MOVED approval of the consent agenda; SECONDED by Councilwoman Tibbetts.
A roll call vote was taken with the results as follows:
Mayor Cutillo aye
Vice Mayor Minarsich aye
Councilman O'Brien aye
Councilman Hudson aye
Councilman Clark aye
Councilwoman Tibbetts aye
Councilman Lawrence aye
The motion CARRIED unanimously.
,,, Minutes of the Regular Session of the Town Council 03/03/94
Page 1 of 12,
Mayor Cutillo said the Council had received a letter asking for a continuance on Agenda Items 7, 8 and 9, and he
suggested those items be moved ahead of Agenda Item#6. There were no objections.
AGENDA ITEM#7.-PUBLIC HEARING ON AN APPLICATION FROM PULTE HOME CORPORATION
TO REZONE (CASE #Z93-10) 36.253 ACRES LOCATED NORTHEAST OF SHEA BOULEVARD,
SOUTHEAST OF SAGUARO BOULEVARD, WEST OF FORT MCDOWELL INDIAN RESERVATION,
AND SOUTH OF THE CLEAR AIRE SUBDIVISION FROM "R-5" TO "R1-6 R.U.P.D.", AND "OSR".
AGENDA ITEM #8. - CONSIDERATION OF ZONING CASE #Z93-10 TO REZONE 36.253 ACRES
LOCATED NORTHEAST OF SHEA BOULEVARD, SOUTHEAST OF SAGUARO BOULEVARD,WEST
OF FORT MCDOWELL INDIAN RESERVATION, AND SOUTH OF THE CLEAR AIRE SUBDIVISION
FROM "R-5" TO "R1-6 R.U.P.D.", AND "OSR".
AGENDA ITEM #9. - CONSIDERATION OF APPEAL FROM PULTE HOMES CORPORATION OF A
DENIAL OF A PRELIMINARY PLAT BY THE PLANNING & ZONING COMMISSION FOR THE
PROPOSED SUNRISE POINT SUBDIVISION (S93-31).
Councilman Clark suggested that since there were a number of people present with an interest in those items,that
they be permitted to speak and let the Pulse Home Corporation give their presentation at the next meeting, as
requested. Mayor Cutillo said he would prefer to discuss the items all at one time,but if there was anyone present
who would not be able to attend the March 17 meeting,he would be willing to allow them to speak. No one came
forward,so Mayor Cutillo MOVED to continue Agenda Items 7,8 and 9 to the March 17 meeting and Councilman
Lawrence SECONDED.
Mr. Bob Thomas said he would be able to make the March 17 meeting,but he thought the case would be precedent
setting and he would like to make a statement so the Council and the public understood Planning&Zoning's position
on the issue. Mayor Cutillo said that if Mr. Thomas were allowed to speak, it would be necessary to go back and
open up the public hearing to allow him,and any others of the public who wished to do so,to speak. He suggested
that Mr. Thomas wait until the Call to the Public. Mr. Thomas agreed. `41)
Mr. Bill McGivern asked if an item could be removed from the agenda without a 24-hour notice, since that was
required to put an item on the agenda. Mayor Cutillo answered that the Council could do so by vote. He also
pointed out that the item was being continued,not removed from the agenda. He also said it was being done at the
applicant's request, and that was usually allowed at least once.
The motion CARRIED unanimously.
AGENDA ITEM#6. - CONSIDERATION OF A REQUEST FOR THE TOWN COUNCIL TO SPONSOR
AN APPLICATION TO REZONE LOTS 7-21 OF BLOCK 1, PLAT 601-A, LOCATED NORTH OF
SUNFLOWER DRIVE, SOUTH OF LOST HILLS DRIVE, SOUTHEAST OF PRIMROSE DRIVE, AND
WEST OF MOUNTAINSIDE DRIVE FROM "R-3" TO R-10".
Vice Mayor Minarsich said the item initially included lots 44-48 and 1-6,which were now deleted from the request.
He read from Section 201,Section B,under Amendments of Zone Change,which he said indicated how the process
probably should have taken place. He said the neighborhood group had started the process through the Planning&
Zoning (P&Z) Commission, went through a tabling process there, and had the request forwarded to the Council.
He reminded the Council that the request was not for the Council to vote on rezoning--the Council was simply being
asked to sponsor the request for a public hearing. Property owners in lot 7-21 would be properly notified and have
the opportunity to come before the Council,either for or against the rezoning.
Mr. Jeppson said the item was a petition to request rezoning of lots 7-21 on Sunflower Dr. He said the P&Z
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Commission first heard the request at their January 13, 1994 meeting and asked that staff notify the owners of the
properties. It was also requested that staff provide the information of properties already developed or properties with
approved building permits that had not yet been developed. He said of the lots being discussed,one had a four-plex
on it,one had a tri-plex,three were single-family homes,and the remaining lots were vacant. The P&Z Commission
had received verbal protests from property owners representing more than 20%of the properties under consideration,
which necessitated at least a three-fourths majority of the Town Council to have such an ordinance adopted.
Councilman O'Brien asked what effect,if any,did deleting lots 44-48 and 1-6 from the request have on the validity
of the petition. Vice Mayor Minarsich said he believed all the petitioners had been notified and asked Mrs.Colleen
Hamel to address the question. Mrs. Hamel said a letter had been sent with a map received from Planning and
Zoning attached and proposed changes to the original rezoning explained. She said calls had been made to everyone
who had signed the original petition, with messages left on answering machines when there was no one to talk to
personally. Copies of that documentation were requested and made.
Councilman Clark said he supported the request in its present form provided the property owners agreed. He said
everyone knew that duplex lots did not appreciate nearly as quickly as single residential lots appreciated,and if the
process was successful, the property owners would benefit.
Vice Mayor Minarsich MOVED the sponsorship of the application to rezone lots 7-21 of Block 1, Plat 601-A,
located north of Sunflower Dr., south of Lost Hills Dr., southeast of Primrose Dr., and west of Mountainside Dr.
from "R-3" to R1-10". Councilman Clark SECONDED the motion.
Mayor Cutillo said he was opposed because he didn't feel the request was routed properly. He didn't believe the
Town Council should take the initiative to rezone someone's land when it had been determined that if there was over
50% opposition, it wasn't going to be done anyway. He thought it was a waste of many people's time and was a
bad precedent.
Vice Mayor Minarsich said the law clearly stated that the people making the request were within their rights. He
said he thought they had been subjected to a bureaucratic nightmare and the Council should make sure they were
given the opportunity they deserved.
Mayor Cutillo said this was indeed a precedent and if the Council acted on it, they needed to be prepared to do the
same for everyone, which would certainly require more staff.
Councilman Lawrence said he agreed in principle that it was desirable to have the action initiated by the property
owners of the lots in question. He said he felt,though,that the case had extenuating circumstances. The petitioners
went to the P&Z Commission who decided not to sponsor them and referred them to the Council. They were next
told by Mr. Jeppson that they would need a council member to sponsor the item, which they did. They followed
all instructions and now felt they were getting the runaround. It would only be proper courtesy to act on their
request.
Councilman O'Brien asked if the wishes of the property owners of lots 7-21 were known. Mr.Jeppson said no,not
entirely. He said staff had simply been asked to notify them of the P&Z Commission meeting on that item and also
of the Council meeting. Councilman O'Brien questioned the legality of staff contacting the property owners and Mr.
Farrell said it was certainly legal, but the time hadn't yet come to do so.
Mayor Cutillo again said it was precedent setting in that: 1) it hadn't been done before, and 2) the petitioners had
been told that the proper way to proceed was to get the signatures of the property owners involved and that had been
followed up in writing. He said he had no opposition to the rezoning; he opposed the procedure used.
Vice Mayor Minarsich said he agreed that the issue was procedure, but the procedure had been derailed from the
beginning. The P&Z Commission,even though no hearing had been called for or sponsored by them,directed staff
,,, Minutes of the Regular Session of the Town Council 03/03/94
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to send letters to all the property owners affected. The petitioners were ultimately directed to go to the Town
Council. They felt as though they were following instructions and were in the middle of a process. The property
owners in lots 7-21 would have ample opportunity to protest if they were opposed to the rezoning. ,401)
Councilman Lawrence pointed out that the Fountain Hills Zoning Ordinance Chapter 2 Section 201B, Subpoint 1
said "...petitions for change of district boundaries or amendments, regulations shall be filed with the Community
Development office by an owner of the real property within the area proposed to be changed or by the Council or
P&Z Commission..." There was no prioritization given,just the options,so according to the zoning ordinance,they
were within their legal options.
Councilman Hudson wondered if the people owning Lots 14 and 17 knew that in the event of a fire destroying over
50% of their structure, the new zoning ordinance would prohibit them from building other than a single-family
dwelling.
Vice Mayor Minarsich said all such questions would be addressed at a public hearing. The agenda item was to
simply start the process so the facts could be brought before the P&Z Commission and the Council and the rezoning
would then be determined.
Councilman Clark asked Mrs. Hamel if the property owners of Lots 7-21 who resided in Fountain Hills had been
notified. Mrs. Hamel said they were told at the P&Z meeting that they would not be given that information. Mr.
Jeppson disputed that and Mrs. Hamel retracted that statement and said that staff had said they would handle the
mailing and effectively took the decision-making out of her hands. Mr.Jeppson said their statement was that staff
would notify the property owners by First Class mail that the Commission was going to consider the matter at their
February 10 meeting.
Councilman Clark said regarding the item being a precedent,in the future if a similar situation arose,there may be
no Councilmember who chose to sponsor such a request and each item must be taken on a case-by-case basis.
George Serrago said he owned two properties on Sunflower Dr. He said at the last P&Z meeting,when the request
still included Lots 1-6, there were 11 people in opposition present. The P&Z Commission at that meeting passed
the item on to the Council, who were now apparently going to pass it back to P&Z.
Colleen Hamel spoke for homeowners unable to attend. She said there were over 130 signed petitions signed by
the surrounding homeowners in favor of the rezoning. Some concerns raised were that the area requested for
rezoning was located predominantly in a R-10 single-family zone and it was felt that the surrounding homes should
conform. Some homeowners had expressed concern that their property values would decrease from multiple
dwellings being built on the surrounding lots. There was concerned that an increased number of dwellings would
bring increased traffic and increased noise from, for example, pool parties. Another concern was over obliterated
or diminished views from a multiple-housing unit.
Margaret Gelinas said she was not presently affected by the rezoning request,but she was greatly concerned that the
tri-plex and four-flex currently in existence on two of the lots in question would not be allowed to rebuild if a fire
destroyed more than 50% of the structure. She, herself, was building some townhomes and if someone decided to
go before the Council and include her properties in a rezoning and there was a fire in which her property was
partially destroyed and she was not allowed to rebuild, there would be quite a financial loss involved.
Councilman Clark suggested to Mr. Serrago that he discuss his concerns regarding property values declining when
rezoning from multi-family to single-family. He said he had found,from his own experience,that though a single-
family lot cost more, its appreciation was many times greater than a duplex lot.
Councilman O'Brien asked whether the Town could contact the owners of Lots 7-21 and ascertain their wishes. Vice
Mayor Minarsich said with approval of Council sponsoring the item,that process would occur. Councilman O'Brien
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said it would make a difference to him to know what the property owners wished before a public hearing.
Councilman Lawrence again reminded everyone that an approval would only begin the process for rezoning and in
that process, all property owners would be notified, a hearing held before the P&Z Commission, and another one
before the Council. All owners would be given an opportunity to express their desires, for or against.
Councilman Clark asked Mr.Farrell what percentage of the property owners needed to be opposed in order to have
the rezoning denied. He was told it required no percentage of those opposed,and rezoning could,depending on the
Council in office at the time and the actions they took, effectively occur against the wishes of the majority of the
property owners. Councilman Clark said he would never be in favor of going against the wishes of the majority of
property owners. Vice Mayor Minarsich told Councilman Clark that under existing law, that could already happen
regardless of what Council was in office.
Mr. Farrell said if 20% of the adjacent property owners protested the rezoning, it would require a "super vote" of
6 out of 7 Councilmembers in favor. Otherwise, it would require 4 out of 7 for a regular rezoning. Councilman
Hudson asked whether the same would be required if 20%of the owners themselves protested a rezoning and it was
determined it would be.
Ms.Gelinas requested that the Council consider Councilman O'Brien's request that the property owners be contacted
with a direct question as to whether or not they were in favor of the rezoning.
The motion CARRIED with five aye votes to two nay votes cast by Mayor Cutillo and Councilman O'Brien.
Mayor Cutillo declared a three-minute recess at 7:35 p.m. to allow members of the audience wishing to leave to do
so.
The meeting was reconvened and Mayor Cutillo declared a public hearing open at 7:40 p.m.
itior
AGENDA ITEM#10. - PUBLIC HEARING ON A SPECIAL USE PERMIT APPLICATION TO ALLOW
FOR A HOME OCCUPATION PEST CONTROL BUSINESS AT 17118 LA PASADA CALLED"SAM THE
BUGMAN!",INCLUDING STORAGE OF"HAZARDOUS MATERIALS",AS DEFINED IN SECTION 1.12
OF THE ZONING ORDINANCE.
Mr. Valder said the new zoning ordinance required a special use permit due to the materials, considered to be
hazardous, used in Mr. Fanelli's pest control business. The P&Z Commission considered the request a week ago
and voted 6-0 to approve. Some provisions of the approval were that the chemicals used were to be stored on the
company truck which was to be locked in his garage. An additional stipulation was that the home occupation portion
of the code be complied with and all chemicals meet handling and storage safeguards set forth by the Town Fire
Department. He said staff recommended approval.
Councilman O'Brien asked whether the public had access to the same chemicals used in Mr.Fanelli's business. Mr.
Fanelli answered that one of the four could be purchased in any hardware store but he did not believe the others
could. Mr. Fanelli went on to say that he kept the equipment stored in his garage, and he would never do that if
he believed his family was in any danger. He said everything stored was E.P.A. approved and he was periodically
and randomly inspected by the state.
Ms.Mary Pilarinos asked for clarification on whether or not those chemicals were approved by the Fire Department.
Mr. Valder answered that they were approved by the Structural Pest Control Commission. He repeated the
stipulation that the chemical handling and storage meet the safeguards set forth by the Fire Department.
Mr.Don Karl, 17106 E.La Pasada,said he lived a door away from Mr.Fanelli. He said his pest control needs were
Minutes of the Regular Session of the Town Council 03/03/94
Page 5 of 12
handled by Mr. Fanelli and that Mr. Fanelli had always shown the utmost responsibility in dealing with the
chemicals.
Cathy Cundiff, Plat 101, recommended that if the Council approved the permit, they should get an independent
environmental testing agency to see how many parts per million of certain chemicals existed if the chemicals became
airborne or were spilled on the ground and what the dangers were to the neighborhood. She said she was concerned
specifically about the pest control companies in her neighborhood.
With no further discussion,Mayor Cutillo declared the public hearing closed and resumed the regular Town Council
meeting at 7:49 p.m.
AGENDA ITEM #11. - CONSIDERATION OF A SPECIAL USE PERMIT APPLICATION TO ALLOW
FOR A HOME OCCUPATION PEST CONTROL BUSINESS AT 17118 LA PASADA CALLED"SAM THE
BUGMAN",INCLUDING STORAGE OF"HAZARDOUS MATERIALS",AS DEFINED IN SECTION 1.12
OF THE ZONING ORDINANCE.
Councilman Lawrence MOVED that a special use permit be granted to Sam Fanelli a.k.a. Sam The Bug Man for
his pest control business located at 17118 La Pasada including the storage of hazardous materials as defined in
Section 1.12 of the Zoning Ordinance to include the three stipulations as set forth by staff. Vice Mayor Minarsich
SECONDED the motion.
Ms. Pilarinos asked whether the business would be subject to approval and inspection of any kind by the Fire
Department. Mr. Valder answered that it was his understanding that the Fire Department was able to inspect any
house or commercial structure whenever they wished. There was no set schedule for that to be done; however, he
said, the State Structural Pest Control Commission was required to make periodic checks and they had the expertise
to ensure that handling of the chemicals was properly and safely done.
Vice Mayor Minarsich said that his business received consistent random inspections by the Fire Department.
Councilman O'Brien asked Mr.Farrell if,to his knowledge,the Pest Control Commission was required to report any
variances to the local government agency. Mr. Farrell answered they were not.
The motion CARRIED unanimously.
AGENDA ITEM#12. - CONSIDERATION OF A REQUEST FOR THE TOWN COUNCIL TO SPONSOR
AN AMENDMENT TO THE PERMITTED USES IN CHAPTER 11, MULTI-FAMILY RESIDENTIAL
ZONING DISTRICTS, R-2, R-3, R-4, AND R-5 OF THE ZONING ORDINANCE FOR THE TOWN OF
FOUNTAIN HILLS TO PERMIT NURSING HOMES,CONVALESCENT HOMES,AND HOMES FOR THE
AGED IN THE R-3, R-4, AND R-5 ZONING DISTRICTS BY SPECIAL USE PERMIT.
Mr. Gary Jeppson said one major revision made in the new zoning code was that previously, special use permits
were allowed in any zoning district. The new code made special uses specific by zoning district. One of the
previous uses allowed in the old ordinance was a nursing home. The Council recently approved an application,
which had been submitted prior to the zoning ordinance taking effect, for a nursing home in an R-4 area. The
applicant reexamined his plans, decided to revise them,and asked staff to look for a solution as to how he could
be allowed to do so. Staff then questioned whether nursing homes,convalescent hospitals,and homes for the aged
might be appropriate uses in multi-family residential zones and whether it would be appropriate to initiate a petition
for application for amendment to the text of the multi-family residential zones to permit nursing homes,convalescent
homes, and homes for the aged in multi-family zoned areas. A request to the Council was, therefore, being
submitted for consideration of an application to amend the text of the multi-family residential zoning districts, in
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Page 6 of 12,
particular,R-3,R-4, and R-5 to allow nursing homes, convalescent homes, and homes for the aged by special use
permit and inserting what the minimum parking requirements would be at such a facility.
Councilman Hudson MOVED to sponsor the amendment to achieve a recommendation from the Planning
Commission and Councilwoman Tibbetts SECONDED. The motion CARRIED unanimously.
AGENDA ITEM#13. - CONSIDERATION OF APPOINTING TWO INDIVIDUALS TO THE BOARD OF
ADJUSTMENT TO FILL THE VACANCIES CAUSED BY EXPIRING TERMS.
Mayor Cutillo MOVED to appoint Thomas Mann and Don Andrews, each to be appointed to a two-year term on
the Fountain Hills Board of Adjustment with terms to begin on February 1, 1994. Councilwoman Tibbetts
SECONDED the motion which CARRIED unanimously.
AGENDA ITEM #14. - TOWN MANAGER'S REPORT: (WITH POSSIBLE DIRECTION FROM THE
COUNCIL FOR APPROPRIATE ACTION)
#14A. - Consideration of approving an IGA with the Fountain Hills Voluntary Fire District regarding the
painting of house numbers on the public curbs within the Town of Fountain Hills. Mr.Nordin said the Town
had cooperated with the Fire District on that item and had budgeted$2,000. Approval would mean that the Fire
District would distribute to the Town$5,000 for a total of$7,000 for the fiscal year to complete the project. Staff
recommended approval.
Councilman Hudson MOVED approval of the Intergovernmental Agreement with the Fountain Hills Volunteer Fire
Department relative to painting house numbers on public curbs and Councilman Clark SECONDED.
Ms. Pilarinos asked what type of paints would be used--whether it would be iridescent or reflective at night. Mr.
Nordin said specifications for the particular paint used would be developed after approval of the IGA,but said her
recommendation would be taken into consideration. Several councilmembers agreed with Ms. Pilarinos'
recommendation.
The motion PASSED unanimously.
#14B.- Consideration of Town Council waivers of the 10 foot vertical limitation on cut and fill as specified
in Section 5.11.C.4 of the Zoning Ordinance for the Town of Fountain Hills for the proposed Paradise Ridge
subdivision. Mr.Nordin turned the floor over to Loras Rauch for a presentation. Ms. Rauch said the waiver was
being requested by New American Builders and was for the Paradise Ridge subdivision. The circumstances
particular to the request were that they were requesting ridgeline cuts, valley floor fills, and rearward downward
slopes. The preliminary plat and the rezoning of the subdivision were scheduled to go to the P&Z Commission next
Thursday,March 10. The applicant had requested the waiver be heard by the Council prior to the P&Z Commission
so that if it were not granted, they could go back to the drawing board. The request was to cut more than 10 feet
from specified ridges and to place the fill material in another designated area. Staff looked at the subdivision design
and saw that a resulting cul de sac would be longer than the cul de sac ordinance permitted and the developer was
asked to provide a second access point. There would be no disturbances beyond the lots. The other cut area was
a request for a knoll in order to create an intersection with an acceptable grade. The spill area would be in a pointing
area and by filling in that area, the pads would be brought up to about three feet above Fountain Hills Blvd. at the
rear, which was much more desirable for mitigating noise in the subdivision. The pond area,designated a surface
over land relief route, was designed to carry water out of the area through a pipe and to run adjacent to Fountain
Hills Blvd.before dumping into Colony Wash. The fourth area requested for a fill area was recommended for denial
by staff. Staff did not believe that the fills were appropriate or in the best interest of the area and that simply
creating building pads was not a good enough reason. Staff recommended approval of the first three requests.
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Councilman O'Brien questioned the procedure of having the Council approve the requests before the P&Z
Commission had even reviewed the plans. Ms.Rauch said the P&Z Commission often discussed hillside constraints
and draining considerations on the preliminary plat level, but they had no authority to issue a waiver--only the
Council did.
Councilman Hudson asked Mr. Jeppson what delay, if any, would be incurred if the P&Z Commission were to
examine the project first. Mr.Jeppson answered it would mean delaying the waiver until the next Council meeting
after the P&Z meeting.
Councilman O'Brien asked if Council approval of the waiver could be made contingent upon the P&Z Commission
decision. Mr.Farrell answered that it was procedurally possible,but it would require the applicant to make up two
sets of plans, one being hypothetical, and discuss them with the Commission. If the Council were to grant the
waiver, the applicant would be permitted to submit the plans containing the land cuts for consideration.
Vice Mayor Minarsich MOVED that the Town Council waive the 10-foot limitation on cut and fill as testified in
Section 5.11.C4 of the Zoning Ordinance of the Town of Fountain Hills for the Paradise Ridge Subdivision with the
stipulations as recommended by staff,Numbers 1 through 4. Mayor Cutillo SECONDED the motion.
Mr. Bill Tessmer,Rand Dr., wondered why there was a P&Z Commission. He said in the majority of the United
States, staff did not make recommendations but the P&Z Commission did and he saw the opposite happening in
Fountain Hills. He said he thought the plan was a good one,but it should go before the P&Z Commission first and
then to Council.
Mr.Neil Arnell,Cavern Dr.,said it was very uncomfortable being in the audience and hearing the cut and fill being
changed, imagining bulldozers taking off the knolls and filling in the washes and ponds. He said much of the
information would have come out at a P&Z meeting and everyone could have had an input. He said it was very
scary to move to Fountain Hills,which people did because of the ridges and because of the custom homes being built
on those ridges. The people in the audience didn't have the benefit of the detailed maps given to the Council and
it was very uncomfortable not having that advantage and knowing how much fill was going where, etc. He said 11111)
please let P&Z work the issue and let the people have their fair say.
Mr. Bob Thomas had no comments to make since they (the P&Z Commission) were unaware of the pending
application. He added that they would not get their meeting packets until the next day. Mayor Cutillo reminded
the public that P&Z would see the plan before it was approved.
Mr.Jim Fonk, Sunflower Dr.,said there had been a previous cut and fill application that P&Z had dealt with quite
extensively which for some reason was never completed. He said there was now another cut and fill application,
but there was apparently a new procedure. This procedure was take it to the Council first and get it approved and
then just go through the motions with P&Z. He wondered what the value of a P&Z recommendation was to a
Council who had already ruled on a matter.
Mayor Cutillo said the Council had the power to grant the waiver and if they refused it,the developer would get the
message to redraw the plans before going before P&Z. If the Council approved the cut, the developer could bring
the plans to P&Z for approval. The ultimate cut had to be approved by the Council, so why not assist the applicant
by saying it was ok if the rest of the process was approved.
Mr. Craig Liston, 16303 E. Montrose,said a difference in the project before the Council was that the applicant was
a home-town developer and he supported that.
Mr.Tom Henry,P&Z Commission,said he had a few problems with the process. He said that the original wording
of the ordinance gave the P&Z Commission the authority to issue a waiver to the 10-foot limit if they determined
it to be in the best interest of the Town. In the review process,MCO had objected and sent a letter to the council
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Page 8 of 12
requesting that the Town Council be the authority on waivers. The Town Manager rewrote the process to delete
P&Z and replace them with the Town Council. The matter was then passed by the Town Council. Mr. Henry
CItow addressed Mayor Cutillo and said the Council needed to be sensitive not only to the developers, but also to the
people in the community. The developer was there to do business while the people were there to help and also elect
the Council. He said the bottom line was that maybe the plans submitted weren't the only option. Maybe there was
another drawing that could be designed,and what if it did cost the developer another$1,000,maybe there was a way
the plans could be drawn without all the cut and fill.
Ms.Gelinas wondered whether the hillside disturbance regulations weren't part of an ordinance and,if so,didn't that
mean only the legislative body could grant a waiver. Mr. Farrell answered that she was absolutely correct. Ms.
Gelinas said that since she was a developer, she knew a new drawing would cost much more than $1,000; more
correct would be the$12,000-$20,000 range. A developer needing to present two different drawings,as suggested
earlier, would face quite an expensive process.
Mr. Nordin said there was no procedure delineated in Town Code relative to who a waiver must first be presented
to--the Council or the P&Z Commission--for recommendation. Staff had adopted the idea that they would work with
the applicant to determine how they would like to handle the process. He said if the Council wished to direct staff
to route the process one way or another, staff would be agreeable; otherwise, it would continue to work as it was
currently set up.
Councilman O'Brien MOVED TO AMEND the motion to say approval would be contingent upon the approval of
the P&Z Commission. Councilwoman Tibbetts SECONDED the motion.
Councilman Hudson said he supported Councilman O'Brien's basic idea,but not the fact that the Council would be
bound by the P&Z decision. He said the amendment said if P&Z rejected the plans then the Council would. He
said he didn't know what his decision would be after the plans came back to the Council.
Councilman Clark said he,too,agreed with Councilman O'Brien's position,but not the wording of the amendment.
He said he thought that recent discussions had shown the friction between P&Z and the Council to have been
reduced. He said he thought the Council would be doing P&Z a favor to give them an opinion ahead of P&Z's
meeting and P&Z would not be bound by the decision,but they would know what direction the Council was leaning.
Councilwoman Tibbetts asked if there was any way to have P&Z look at the plans and get their feedback, or was
it necessary to go through the whole process, have two plans submitted, and take all that time.
Mr. Farrell said the 1993 Subdivision Ordinance said that the body granting the waivers shall be the Mayor and
Council. The ordinance could be amended to give the power to the P&Z Commission,requiring a public hearing
and a text amendment. The denial of anything by the P&Z Commission was appealable to the Mayor and Council,
giving the Council the ultimate authority in any case.
Councilman Clark asked if the original motion and the amended motion were withdrawn,whether it could it be voted
to show Council's feelings and then let it go on to P&Z for their inputs.
Mr. Farrell said that it could be done if everyone withdrew their motions and seconds, but he said if the item was
then sent to P&Z, they could simply send it back saying why should they look at plans over which they had no
control. The waiver would be worthless without a subdivision plat approval,and that approval had not begun. He
suggested adding the verbiage that Council would grant approval of the waiver if the P&Z Commission granted
approval of the preliminary plat.
Mayor Cutillo MOVED THE QUESTION on the amendment. Councilman Lawrence SECONDED the motion
which CARRIED unanimously.
Minutes of the Regular Session of the Town Council 03/03/94
Page 9 of 12,
The AMENDMENT by Councilman O'Brien, which was to have the approval contingent on the P&Z for the
preliminary plant, FAILED six nay votes to one aye vote by Councilman O'Brien.
The ORIGINAL MOTION which was to approve the recommendation by staff with the four stipulations
CARRIED unanimously.
#14.C. Preliminary discussion/examination of:
1.) prohibiting residential garbage containers from being left in Town right-of-way overnight.
2.) municipal regulation of refuse collection within Fountain Hills; including the granting of a
franchise to a refuse collection firm and what collection and disposal procedures can be
mandated by the Town.
Mr. Nordin said the agenda item had been requested by Councilman Clark and turned the floor over to him.
Councilman Clark read a memo from himself to the Mayor and Council(attached.) He said he felt the situation was
serious from a number of points of view.
Vice Mayor Minarsich said he agreed with Councilman Clark's concerns, and also agreed that some time in the
future a regulatory scheme may be needed,but he did not feel the time was yet here. The people in the community
had several choices and he didn't believe the Town needed to get involved. Councilman Clark said that the point
was missed entirely. He said air conditioning units in town were required to be hidden, and he felt the trash cans
were just as unsightly and should require the same attention.
Mayor Cutillo said he was concerned about the three separate trash trucks serving the town, each possibly serving
the same neighborhoods, the same streets. He thought it was an unnecessary waste of truck traffic and wear and
tear on the roads. He thought franchising could go a long way toward making the service better since the Council
would have some control and franchising would offer the competition. He said he didn't know if all the trash bins
could be regulated and even so, it would keep the Marshal's Office very busy. N.)
Mr.Farrell said the Town had very broad powers on waste regulations. It could be mandated that Town employees
remove the waste, a competitive bidding and a public contract could be required, or multiple parties could be
licensed. The Environmental Protection Agency,The State Department of Environmental Quality and Congress all
had a say in the matter, which could create huge liability problems. Vice Mayor Minarsich asked him to expound
on the liability matter. Mr. Farrell said that, unfortunately, once the trash carrier leaves the community to deposit
the waste,the town was involved in the landfill site liability. The waste was characterized as having been generated
by a municipality, and the liability settlements were usually determined by volume. Seventy to ninety percent of
landfill volume was municipally generated,while 3/10 of a percent was hazardous. The cleanup cost is figured by
what volume was contributed, not by the percentage that was hazardous. He said liability insurance was not
available. He was sure an ordinance could be adopted to require persons to remove from the public rights-of-way
their empty refuse containers prior to sunset of the day following collection. He said as far as hiding the containers
from view, he didn't feel the town could effectively require screening at single family residences.
Mayor Cutillo said to address liability, he thought it had diminished a great deal. He said there was a federal
regulatory process that all landfills had to meet and by franchisinge,it could be stipulated that all garbage be taken
to a federally approved landfill. Liability was, therefore, greatly diminished.
Councilman Clark said maybe the time hadn't come yet to regulate the trash haulers,but the trash cans in the right-
of-way could be dealt with and he requested that staff put together a regulatory document to allow that to happen.
He said he still felt the trash cans ought to be stored out of sight and wanted staff to come up with a
recommendation for that.
Minutes of the Regular Session of the Town Council 03/03/94
Page 10 of 12
Ms. Pilarinos said back east, they stored their trash in containers underground at the front of the residence. She
didn't know what was involved or at what cost, but suggested it was an alternative that could be considered.
fikow
Mr. Nordin said it should be relatively easy for staff to construct an ordinance that would mandate removal of the
waste receptacle from the right-of-way and present it to the Council in a very timely manner and the other matters
would continue to be investigated. Mayor Cutillo recommended sensitivity to people leaving town for a few days,
or something else happening, and wondered how severe the penalty should be for leaving a trash can out.
Vice Mayor Minarsich suggested involving the public asking them to voluntarily help beautify the community.
AGENDA ITEM#15.-(PUBLIC COMMENT IS ENCOURAGED BUT PLEASE BE ADVISED THAT THE
COUNCIL HAS NO ABILITY TO RESPOND OR DISCUSS MATTERS BROUGHT UP DURING THE
CALL TO THE PUBLIC AS SUCH DISCUSSION IS PROHIBITED BY THE ARIZONA OPEN MEETING
LAW.)
Mr. Bob Thomas said he didn't feel it was the proper forum for his presentation and would defer until the March
17 meeting.
Mr. Bill Tessmer, Rand Dr., requested the Council get a bigger facility. He said there were many people in the
corridor who could not hear and the Council should at least put a speaker out there so the public could hear what
was going on. A place should be found to allow more people to be seated such as the school building.
Councilman Clark wondered whether he could be heard in the back of the building since there were microphones.
He was told that his hands often blocked his mouth, thereby hindering his words from reaching the back. He said
it probably wasn't possible to build a new Town Hall yet, but improvements to the sound system would certainly
be affordable and he recommended staff investigate further.
,, Ms. Karen Myers, Planning &Zoning Commission, said the Council was constantly cutting the P&Z Commission
down. She said she was really trying to do a good job and took the job very seriously and tried to come up with
intelligent answers to what was being put forth. She said P&Z did not approve or disapprove anything,they simply
made recommendations. She wondered whether the Council was aware that the item being discussed that evening,
that had been written about in the paper, P&Z had not received one thing about for their Thursday meeting. The
public and the newspaper all had information while P&Z had heard nothing. She said she had talked with staff and
was told they might give P&Z a "For Your Information" notice that when something was coming through, the
Commission could at least be aware. Councilman Clark said he sympathized because the same was true for the
Council in reverse. He said he would support her request and asked that the Council also get a "For Your
Information" notice on P&Z's agenda.
AGENDA ITEM#17. - ADJOURNMENT.
Councilman Hudson MOVED to adjourn. Councilwoman Lawrence SECONDED and the motion CARRIED
unanimously. The Town Council adjourned at approximately 9:40 p.m.
1/46arrH Minutes of the Regular Session of the Town Council 03/03/94
Page 11 of 12
TOWN OF FOUNTAIN HILLS
By: •
n . Cutillo, Mayor
ATTEST: 81-62A 6. 1414,,A.,
Cassie B. Hansen, Town Clerk
PREPARED BY:
Rosalynn Ru er, Administrativ, Assistant
CERTIFICATION
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 3rd day of March, 1994. I further certify that the meeting was
duly called and that a quorum was present.
DATED this 17th day of March, 1994.
0-4-44-:-.A-
Cassie B. Hansen, Town Clerk
Minutes of the Regular Session of the Town Council 03/03/94
Page 12 of 12