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HomeMy WebLinkAbout2001.0419.TCREM.Minutes TOWN OF FOUNTAIN HILLS
MINUTES OF THE REGULAR AND EXECUTIVE SESSION OF THE
FOUNTAIN HILLS TOWN COUNCIL
April 19,2001
Mayor Morgan called the regular session of the Town Council to order at 5:30 p.m.
ITEM#1 PURSUANT TO A.R.S. §38-431.03.A.4, VOTE TO GO INTO EXECUTIVE SESSION FOR:
DISCUSSION OR CONSULTATION WITH THE ATTORNEYS OF THE PUBLIC BODY IN ORDER
TO CONSIDER ITS POSITION AND INSTRUCT ITS ATTORNEYS REGARDING THE PUBLIC
BODY'S POSITION IN PENDING OR CONTEMPLATED LITIGATION OR IN SETTLEMENT
DISCUSSIONS CONDUCTED IN ORDER TO AVOID OR RESOLVE LITIGATION
(CONDEMNATION ACTION-TOWN OF FOUNTAIN HILLS V.MCO PROPERTIES).
Councilwoman Fraverd MOVED that the Council convene the executive session and Councilwoman Ralphe
SECONDED the motion,which carried unanimously.
ITEM#2 RETURN TO REGULAR SESSION
Mayor Morgan recessed the executive session of the Town Council at 6:20 p.m. and reconvened the regular session of
the Town Council at 6:30 p.m.
Following the pledge to the flag Hunter Combs and Brendon Reese of Boy Scout Troop 343/Badger Unit and the
invocation by Pastor Don Lawrence, Christ's Church of Fountain Hills, the roll call was taken.
ROLL CALL - Present for roll call were the following members of the Fountain Hills Town Council: Mayor
Sharon Morgan, Vice Mayor John Wyman, and Councilmembers Leesa Fraverd, Sharon Hutcheson, John
McNeill,John Kavanagh, and Susan Ralphe. Also present were Town Manager Paul Nordin, Town Attorney Bill
Farrell, Director of Public Works/Town Engineer Randy Harrel, Director of Administration Cassie Hansen, and
Director of Community Development Jeff Valder.
Mayor Morgan read the consent agenda items 1 -4
ITEM#1 CONSIDERATION OF APPROVING THE MEETING MINUTES OF APRIL 5,2001.
ITEM#2 CONSIDERATION OF THE LIQUOR LICENSE APPLICATION SUBMITTED BY JOE
WILLIAMS FOR THE VILLAGE PUB LOCATED AT 16740 EAST PALISADES BOULEVARD. THE
APPLICATION IS FOR A NEW CLASS 12 RESTAURANT LIQUOR LICENSE.
ITEM#3 CONSIDERATION OF A PRELIMINARY AND FINAL PLAT FOR A TWO-UNIT
PROPOSED CONDOMINIUM PROJECT TO BE NAMED "THE AMF TOWNHOMES", LOCATED
AT 14230 N.GALATEA DRIVE,AKA PLAT 104,BLOCK 9,LOT 27,CASE NUMBER S2001-12.
ITEM#4 CONSIDERATION OF RESOLUTION 2001-20 ABANDONING WHATEVER RIGHT,
TITLE, OR INTEREST THE TOWN HAS IN CERTAIN PUBLIC UTILITY AND DRAINAGE
EASEMENT LOCATED ALONG THE SOUTHERLY PROPERTY LINE OF PLAT 601-A, BLOCK 3,
LOT 16, (12634 NORTH MOUNTAINSIDE DRIVE) AS RECORDED IN BOOK 161 OF MAPS, PAGE
44 RECORDS OF MARICOPA COUNTY, ARIZONA (MOUNTAINSIDE HOLDINGS L.L.C.). EA01-
04
Councilwoman Hutcheson MOVED to approve the Consent Agenda as read. Councilwoman Ralphe
SECONDED the motion. A roll call vote was taken with the following results.
Councilman Kavanagh- aye
Councilwoman Ralphe— aye
Vice Mayor Wyman aye
Councilman McNeill- aye
Councilwoman Hutcheson- aye
Mayor Morgan- aye
Councilwoman Fraverd- aye
The motion CARRIED unanimously with a roll call vote.
ITEM#5 INTRODUCTION OF CONGRESSMAN J.D. HAYWORTH WHO WILL BRIEFLY
ADDRESS ITEMS OF MUNICIPAL INTEREST.
Mayor Morgan explained that Congressman Hayworth had not arrived yet and the Council would acknowledge
him upon his arrival. She continued with the meeting agenda.
ITEM#6 UPDATE BY KRISTEN GENOVESE FROM THE EAST VALLEY ADDICTION
COUNCIL (EVAC) ON THE TOWN'S SUBSTANCE ABUSE PREVENTION AND INTERVENTION
PROGRAM.
Director Hansen reviewed that staff had done a considerable amount of work revising the previous year's
program. She pointed out that everyone was excited about what had been developed. She introduced Kristen
Genovese.
Ms. Genovese stated at her previous appearance before the Council that she had covered drug awareness.
EVAC was continuing their education program to raise drug awareness. She gave a brief overview of what they
4116., had accomplished. She noted that they had an integrated phone number for the community, which had been
published in the papers. Ms. Genovese said that it was their hope they could spread the word throughout the
community about new drug trends, looking for the warning signs, and the issue of prevention. They hoped to
get their message out by utilizing Channel 11 as to what resources they had to offer residents.
Ms. Genovese stated that when the program was started scholarships were available for families who did not
have insurance or couldn't afford treatment services. She noted that one program had provided those services
last year. In current discussions within their agency she was asked to coordinate these services to work with the
Town on the level of referral. She stated that the committee had selected six different treatment providers, but
none were near Fountain Hills logistically. To use their services clients would be required to go to Scottsdale,
Mesa, Tempe, or Phoenix for the different level of care needed. She said that she had been working with
Director Hansen on a link to St. Luke's who subcontracted to a local agency. Ms. Genovese stated that they
have continued their relationships with the other agencies because some of the providers selected offered
specific services. EVAC would remain the point of contact and make the referral that would be most
appropriate. She expressed concern that EVAC may not be getting the same volume of calls as seen in prior
years with Imagine Recovery. Ms. Genovese pointed out that she had only taken seven calls, four of which
were a direct result of an in-placement referral.
She felt that another aspect of the comprehensive program would be to go out into the community to do
educational community presentations. She said she had advocated this for the last three years to meet the
educational need. Outside of the funding that came from the Town, EVAC had been providing prevention
services at the Middle School (All Stars Program) and at the High School at teachers' requests. Teachers were
trained annually on drug trends and she wanted the same type of training in the community. She was looking at
various groups with which to network this summer and fall to get something going monthly.
Ms. Genovese noted that the next Council agenda item, the Family Advocacy Center, had educational value to
the community as prevention based material. She commented that they had over 10,000 books coming from
Washington D.C. that were a parent's guide to prevention on how to talk to kids developmentally. She
Town Council Regular and Executive Session 4/19/01
Page 2 of 11
explained that some of the books would be placed in the schools. She wanted to place some at the Town offices
and in some medical facilities. She saw one of the major issues as being able to continue to make sure that kids
were being placed in the right services. If scholarships were awarded, they should be for treatment only. She
explained that they had received valuable input from the students at the Youth Town Hall. Students discussed
their ideas of what could be done with kids. She noted that parental education needed to a part of the children's
education program.
She asked for the Council's advice and community input as to what groups with whom they could meet. She
acknowledged that they didn't have anyone attend their community presentations. Ms. Genovese did not know
if that was denial based or the meetings were just inconvenient for them. They were proposing to go to the
established groups to present the critical issues. The approach they were taking was that everyone was touched
by addiction in some way. She concluded that they were off to a good start with four very successful referrals.
She noted that Director Hansen had been a great help in getting this program going.
Councilwoman Hutcheson felt that the education and prevention programs were terrific. She was happy to hear
that additional providers were being identified. She commented that previously one of her concerns had been
how EVAC could deal with acute care. Ms. Genovese interjected that the 24-hour detox program was still
available for adults. She explained that in terms of the young people, they could be sent to Park Place, which
was now located in Chandler. Councilwoman Hutcheson felt it was important to deal with this age group on an
immediate 24-hour basis.
Councilman McNeill suggested that they contact the larger churches that had youth programs to encourage them
to incorporate some of EVAC's educational material. Councilwoman Fraverd asked when their brochure would
be ready for distribution. Director Hansen responded they were aiming for this summer. Councilman
Kavanagh thanked Ms. Genovese for all the good work that EVAC was doing. He was curious about the
prevention programs and asked if they were directed at all the students or just to those who had been identified
as "at risk". Ms. Genovese replied at this time that it was directed at students that had been identified as "at
��± risk". Councilman Kavanagh suggested that the distribution point of the information flyers/booklets would be
fir, better given on a wider basis. Ms. Genovese responded that they had talked about doing it at grocery stores.
ITEM#7 CONSIDERATION OF RESOLUTION 2001-18 SUPPORTING THE CITY OF
SCOTTSDALE'S AND THE SCOTTSDALE POLICE DEPARTMENT'S EFFORTS IN THE
CREATION OF THE NORTHEAST VALLEY FAMILY ADVOCACY CENTER.
Mr. Nordin introduced Mr. Rick Melendez, Chairman of the Town's L.E.A.P. Committee. Chairman Melendez
gave a brief overview of the importance of the Town's support for this facility. He thanked staff for their
assistance in putting together this resolution. He stated the crisis center's main goal was to address the problems
of child abuse, domestic violence, and elder abuse at no cost to the Town or the taxpayer. He believed that the
center was consistent with the other programs that the community had supported throughout the year. He
distributed copies of their proposal to the Council. On behalf of the committee, he asked for the Council
support.
Councilman McNeill MOVED to approve Resolution 2000-18 as presented and Councilwoman Hutcheson
SECONDED the motion, which CARRIED unanimously.
ITEM#8 UPDATE BY BOND ATTORNEY SCOTT RUBY ON THE TOWN'S $2.1 MILLION
INVESTMENT.
Mr. Nordin introduced Mr. Ruby. Mr. Ruby commented briefly about the recently filed bankruptcy of PG&E.
He acknowledged that the MPC had received an interest payment in the amount of$28,098.94 on April 5,2001,
that represented a particular interest rate chosen by a default index from the due date of the commercial paper,
January 20, 2001 through March 30, 2001. He felt that this was an effort on PG&E's part to forestall some of
the angry commercial paper holders. He noted that money would be put in the appropriate fund. He said that
the filing of the bankruptcy of PG&E had not altered the Town's main strategy in this matter. He explained that
his office had drafted a complaint and circulated it to various Town officials for their comment. When ready,
the complaint would then be taken to BNY to ask where they stood with respect to rectifying this situation on an
Town Council Regular and Executive Session 4/19/01
Page 3 of 11
interim basis. He reviewed that extensive discussions had been held with BNY about their responsibility and
willingness to fund the shortfalls that might occur in the interim because of this investment loss. He stated BNY
continues to explore that option. Mr. Ruby now felt it was time BNY made a decision on that proposal.
Mr. Ruby noted that there was money left in the construction account sufficient to probably carry the Town over
until the end of May. After that, other resources would have to be drawn upon unless BNY were to step up as
had been suggested. Mr. Rudy said his office planned to conclude conversations with BNY. If unfavorably
resolved, he would proceed with the complaint. As for the PG&E's bankruptcy issue, his office intended to file
a creditor's proof of claim, probably in conjunction with BNY. He reminded the Council that the commercial
paper was really in the name of the Trustee, which was BNY. Mr. Ruby stated that he had been in touch with
BNY about filing a proof of claim. He noted that Bank of New York, the parent of BNY Western Trust, was
listed as the largest creditor of PG&E to the tune of $2.2 billion dollars in the capacity as paying agent. In
effect, PG&E had sold notes to the public market and they had promised to take their money and pay it to the
paying agent who would then pay the holders of the notes or bonds. In that capacity they were technically a
creditor but in reality they were just the person who had the books and records as to who owned the notes and as
to who should be receiving the payment. BNY would need to examine that relationship and determine what
kind of conflict that might present in filing a proof of claim. Mr. Ruby said that if BNY did not file a proof of
claim, the Town would directly file a proof of claim. He said that a deadline had not yet been set for filing
proofs of claim. He did not anticipate that to occur until 60-days from now at the earliest.
Councilman Kavanagh suggested if the Town was just one small amount of the debt owned that perhaps BNY
or Merrill Lynch might not want to open precedent for others to follow. Mr. Ruby said that was probably not
true of BNY Western Trust because the relationship that they had with the Town was somewhat unique or at
least limited. They did not have the exposure to put similar type claims throughout the bank, at least that was
what he had been advised. With respect to Merrill Lynch,Mr. Ruby stated that could be the case.
Councilman Kavanagh discussed the California governor's plan to resolve this issue and the fact there has been
sketchy information since then. Mr. Ruby said the solution proposed by the State of California had wrinkles in
it, which did not favor the Town's position. A priority was to be given to the State of California for the
repayment of its money that had been loaned in connection with this transaction - to the detriment of other
creditors. That issue was discussed in the nationwide conference calls and had not been well received by the
creditors as the State of California was giving themselves preferential treatment. In reality PG&E's filing of
bankruptcy the next day was in recognition of the fact that plan wouldn't work. That plan would have simply
forced them into bankruptcy involuntarily.
Mr. Ruby noted he not heard any more from the California legislature. When this matter went into bankruptcy
court it became a new game with new rules, operational procedures, and solutions of how it would be presented.
He felt that PG&E was working on some type of reorganization plan with the involvement of the State of
California to be determined. No one at this point could really say what would happen because it was a political
issue. With respect to what they were doing with the surplus power sellers, there had been all kinds of rumors
about how to best treat those folks. Free markets were still supporting the hands off approach. He noted that
there had been talk of some type of windfall profits tax on them and then some of those monies should go to the
State of California that allowed them to subsidize it. He concluded that for right now the bankruptcy was put
off and all the proposed solutions had been put on hold. Mr. Ruby summarized the situation as being the
"lawyers were now in charge".
Councilman Kavanagh said that it had been reported that the first people to get their money back if PG&E were
to file bankruptcy would be the energy wholesalers to whom money was owed. Second in line would be the
creditors such as the Town who were bondholders. Equity stock holders would be last. Mr. Ruby said that was
a solid and practical answer. He noted that the goal of the bankruptcy would be that customers would still be
able to turn their lights on. Councilman Kavanagh pointed out that Mr. Ruby had been talking about PG&E
filing a reorganization bankruptcy. He inquired if that meant they would be staying in business and that the
Town would eventually get all of the money back or would it result in a judge stating that only a percentage on
the dollar would be paid. Mr. Ruby said that a plan of reorganization could result in the Town receiving
1/44619 anywhere from 0 to 100%. He said the courts had the authority to decrease the debt. He pointed out that the
Town would just have to wait and see.
Town Council Regular and Executive Session 4/19/01
Page 4 of 11
Councilman McNeill commented that he too had read with interest what the California governor's plan was to
save the utility, noting that it had not held much comfort for creditors like the Town of Fountain Hills. He said
that originally he had looked at the filing of bankruptcy as something that had a greater prospect of repayment
of funds to the Town than what the California governor had been proposing. He felt in this case that it was the
better of two evils being proposed. Mr. Ruby agreed. Councilman McNeill said that the Town's case against
BNY was different than other creditors. The Town had been sold PG&E commercial paper at a time when just
a few days previously both major rating agencies (Standards & Poors and Moody's) had announced a credit
watch. A Trustee should be looking out for that. One of the developments that came out of the PG&E's
bankruptcy announcement was that the CEO of PG&E had made the point that they had been waving the crisis
flag last summer. Councilman McNeill pointed out that was months before the Town had been sold this
commercial paper. He commented that although the commercial paper technically qualified for the investment
grade but certainly was not something that a Trustee would have invested in if they had been doing their job in
looking out for their client. Mr. Ruby concurred with all remarks and it was especially true if a Trustee had
their office in southern California and read the Los Angeles Times on a daily basis.
Vice Mayor Wyman noted that PG&E had passed on profits and a considerable amount of cash to their parent
company in New York. He questioned if there was an obligation then placed on the parent company because
essentially what they had done was to strip assets in the form of cash and other cash equivalents. He also asked
if BNY had the same type of relationship with the Bank of New York. Mr. Ruby responded that BNY Western
Trust's relationship with Bank of New York was very similar. He explained that the up streaming of monies
from PG&E Electric to PG&E Holding Corporation had been the subject of inquiry because the holding
company had made arrangements with several banks to pay their debts and solidify the entity and not subject it
to bankruptcy. He said there had been some excitement that maybe some of the bank facilities were dealing
with our issues but they weren't. Those banks were dealing only with the holding company's issues. He said
there was a great deal of scrutiny being paid to the upstream of monies. It was examined to see if they were
ever made at a time when it would have put PG&E into a bankrupt state or if there had been a flat preference
made 90-days prior to the filing of a bankruptcy. As far as the relationship between BNY and the Bank of New
York,they had not done a lot of work on that issue and he hoped they did not have to. If they had to go through
itilw the discovery stage there would be serious inquiry as to how much communication existed between the two
companies. He believed that somewhere in the Bank of New York somebody knew about those credit watches
and repeated that knowledge to their subs.
Councilwoman Fraverd asked what the likelihood was of the Town seeing any more interest payments. Mr.
Ruby responded he did not expect any other payments. He cautioned that these funds should not be spent,
because that money was subject to recall. He said the practical logistics of retrieving all the interest was
overwhelming because the Town was not the only one who received monies.
Councilwoman Ralphe noted a televised interview of a Merrill Lynch executive. She found it interesting that
when he was asked what it meant when Merrill Lynch issued a "warning" with regard to a stock. He had
responded that it certainly didn't mean, "buy". She felt that it had a parallel implication for the situation that the
Town was currently in with not only Merrill Lynch but also BNY.
Councilman Kavanagh asked if a reorganization was filed and PG&E was ordered to pay a percentage on the
dollar, would that preclude all other litigation or would the Town still be able to separately go after Bank of
New York or Merrill Lynch for the difference. Mr. Rudy said that would not waive the Town's claims against
BNY or Merrill Lynch for the difference.
Vice Mayor Wyman referred to a recent article by an economist in which they discussed the two rating
agencies. He noted that it had been quite explicit that Standard and Poors and Moody's were reluctant to
downgrade client companies with whom they had alternative income opportunities simply because they might
not get those income opportunities. He questioned if at some point even the rating agencies might be culpable
to a larger degree. He noted that these rating agencies did have other businesses besides being a rating agency.
Mr. Ruby said Vice Mayor Wyman was correct that they did have other businesses. He noted that the rating
agencies walked a tense tight rope. In order for them to downgrade they would have to do the kind of work and
analysis necessary that would justify the downgrade. They would not want to be accused of being careless in
their rating analysis process. He stated that the market relied upon that process and upon the analysis being
Town Council Regular and Executive Session 4/19/01
Page 5 of 11
accurate. He said that brought up the issue of if they were quick enough to respond to this issue in light of what
was going on. They had analyzed the situation and had then come to a conclusion and that would be when they
issued the credit watches. He noted that when a company was put on credit watch, things were not going well.
He said his office was currently looking for the statement that when "they are on credit watch a downgrade
always follows". Mr. Ruby did not want to indicate that either of the rating agencies did anything wrong in this
case, but he said there had been lawsuits against the rating agencies based upon the theories as discussed. He
did point out that to his knowledge there had not been any winners.
ITEM#9 CONSIDERATION OF RESOLUTION 2001-19 DECLARING THE COUNCIL'S
POSITION IN STATING POLICY RELATIVE TO THE HYETT PALMA FOUNTAIN HILLS
DOWNTOWN ECONOMIC ENHANCEMENT STRATEGY 2001 REPORT.
Mayor Morgan called on Councilwoman Ralphe. Councilwoman Ralphe stated that as the Council
representative in addition to the Mayor on the new downtown partnership committee she had asked staff to
prepare this Resolution. She said the consultant's report gave the Council an opportunity to establish public
policy that would direct governmental activities in the downtown although not every recommendation may be
implemented as stated in the report. She asked that the Council consider most of the recommendations made
and the overall general broad direction described. Councilwoman Ralphe reviewed the specifics of the
Resolution before the Council. She acknowledged that she and the Mayor had collaborated on this resolution.
Councilwoman Hutcheson MOVED to approve Resolution 2000-19 as presented and Councilman McNeill
SECONDED the motion,which CARRIED unanimously.
ITEM#10 CONSIDERATION OF APPOINTING A CITIZEN'S AD-HOC COMMITTEE TO
REPRESENT THE TOWN AND ITS INTERESTS RELATIVE TO THE PROPOSED FAA FLIGHT
PATH CHANGES AT SKY HARBOR AIRPORT.
Mayor Morgan stated that Councilwoman Hutcheson had been invited to attend a breakfast meeting with several
groups in Scottsdale. Mayor Morgan said she saw no reason for her not to attend and welcomed the fact that
she wanted to attend this meeting. Mayor Morgan suggested the formation of a citizen ad-hoc committee to
work with other neighboring communities on this problem to see if changes could be made to the FAA flight
patterns and to keep the community and Council informed of what was going on. She noted that this committee
would be an "ad-hoc committee", which meant they would be dealing with one issue. When the situation was
resolved,their services would no longer be required.
Councilwoman Hutcheson added that the meeting she attended last Friday included various representatives who
had an interest in this issue. This meeting was called because the FAA had rejected Scottsdale's alternative
flight plan. She noted that the coalition was being formed to further investigate possibilities, to ask more
questions, to obtain better explanations, to plan other alternatives, and to present other positions as it relates to
the northeast valley. She said that the Scottsdale City Council discussed this last week and took action. She
appreciated Mayor Morgan's support in helping Fountain Hills become involved. She stated that the members
of the committee would try to follow this in a short time frame. They expect a response from the FAA within
45-days unless the situation changes. Councilwoman Hutcheson said the committee would keep everyone
informed. She invited any citizens who had comments, concerns, or ideas to contact Town Hall and they would
be forwarded to the committee. She said the committee would look forward to reporting to the Council and the
residents.
Councilwoman Fraverd MOVED to appoint a Citizen's Ad-Hoc Committee as presented and Vice Mayor
Wyman SECONDED the motion.
Councilman McNeill mentioned that the FAA would conduct a public meeting in Fountain Hills on:
Tuesday, April 24, 2001; 6— 8 p.m. at McDowell Mountain School. He stated that this would be the public's
opportunity to hear what the FAA was proposing and voice their opinions. He had hoped that the FAA would
have taken Scottsdale's alternative into account and the proposed departure lanes would be changed so planes
would not fly directly over Fountain Hills in the northbound flights. He noted that the FAA had rejected
Scottsdale's alternative plan. He invited all interested citizens to attend this public meeting.
Town Council Regular and Executive Session 4/19/01
Page 6 of 11
The motion CARRIED unanimously.
Mayor Morgan announced the five-member committee:
Councilwoman Hutcheson to Chair the committee
Councilman McNeill
Robert Sternfels
Rick Melendez
Hank Lickman
Mayor Morgan asked that the committee make a progress report to the Council every other month (every 5th
council meeting), sooner if something of importance transpired.
ITEM#11 CONSIDERATION OF RESOLUTION 2001-17 DECLARING A PUBLIC NEED AND
NECESSITY PURSUANT TO A.R.S. § 12-1111, ET.SEQ. FOR THE ACQUISITION BY GIFT,
PURCHASE OR EMINENT DOMAIN OF CERTAIN REAL PROPERTY LOCATED WITHIN THE
TOWN OF FOUNTAIN HILLS FOR THE PURPOSES OF A PUBLIC ROAD AND PUBLIC ROAD
RIGHT-OF-WAY; AND DECLARING AN EMERGENCY.
Mr. Farrell stated that the attachments to the Resolution were placed before them. He explained that
approximately four acres of private property that staff was asking for Council to consider for the purpose of
acquiring would be the extension of the cul-de-sac street known as Rhoads Court. He said that the street was
perpendicular to Sunridge Drive. He stated that the four acres were needed to provide a second collector access
to a proposed subdivision known as "Eagles Ridge North". He noted that subdivision was presently being
reviewed by staff. He said that the subdivision had been presented once to the Planning and Zoning
Commission but would be presented again for comment and recommendation. Mr. Farrell stated that this
resolution was significantly related to the Town's current eminent domain actions for acquisition, particularly
those acquisitions of Parcel 3 and secondarily Parcels 4, 9, 10, and 11 in the McDowell Mountain Preservation
Commission map,which the Council had adopted for the Town's preserve area.
tliw
i Mr. Farrell pointed out that the two professional appraisers retained (by MCO Properties and the Town) have
disagreed on the amount of severance damages that could be attributed to the balance of the vacant land that
would be known as Eagles Ridge North. He said the significant aspect of their disagreement was the access of a
second collector to the remaining part or the remainder of the Eagles Ridge North subdivision. He pointed out
that MCO, owner of the land, did not own the land that was adjacent to their property. He explained that it was
relatively common for municipalities to assist property owners in acquiring public right-of-way where they do
not own the adjacent land to their property. MCO could go to those property owners and ask for the ability to
purchase their land, but if turned down on that request they could not fulfill the obligation of the Town's code.
He said that public rights-of-way were one of those powers that the State Constitution and the State laws grant
to a city or town under the 5th amendment rights of eminent domain. In order to have public roads, the city or
town had the right to acquire by condemnation.
Mr. Farrell said that the Town had no reason to believe that they would have to condemn these parcels. In fact,
staff had optimistically heard from one or two of the property owners that acquiring the road for a public right-
of-way was possible. However, with the pending eminent domain trials and the significant issue of severance
damages, the eminent domain counsel was recommending (and he concurred) that the Town be able to
demonstrate to the Court and MCO's appraiser that there was an alternative collector road, which would provide
secondary access. He said that the Town's consulting engineer, Susanna Strubel, had analyzed the road design
and feasibility. Mr. Farrell stated that Ms. Strubel concluded that it was possible to construct such a road and
the engineering plans have been drawn. He pointed out that the amount of compensation to be paid was not
known at this time. He reiterated that several property owners indicated a willingness to work with the Town in
allowing the Town to acquire those properties. He noted that the road had been drawn in the least offensive way
possible for that particular subdivision.
Mr. Farrell acknowledged that Director Valder was being deposed next Monday on this very topic and Ms.
Strubel was being deposed a week from Monday. He explained that was why he had asked for the emergency
clause to be included in the resolution so that it could be presented to the courts and discussed in the depositions
Town Council Regular and Executive Session 4/19/01
Page 7 of 11
presently scheduled. He said it was highly probable that if this matter were to be settled outside of eminent
domain, that MCO might ask the Town for alternative routes or they might be pleased with this as a secondary
access. He noted that at this time MCO's preference was unknown but the Town wanted to make it available to
them. Mr. Farrell said that the Town would not act upon the Resolution to purchase or to condemn until such
time as there was total agreement with MCO as to the location and its connectability to their proposed
subdivision. He asked that the Council favorably consider this resolution.
Councilman McNeill MOVED to approve Resolution 2000-17 as presented and Councilwoman Hutcheson
SECONDED the motion.
Mr. Hank Lickman,Vice President of MCO Properties and resident on Sunburst Drive.
He clarified that MCO was a 50/50 joint venture partner with Suncore, the developer of Sunridge Canyon. He
said his statements were more questions than comment. He said that MCO had not, and they regularly receive a
copy of the Council packet material prior to the meetings, to his knowledge seen a map of where this road
would be located.
He said his second question was that on Rhoads Court there were either five or six acre custom lots that were
sold and owned by individual property owners in that cul-de-sac. When they purchased that property they could
see that the road ended and was a cul-de-sac. His question was, since he did not see any of the property owners
present, he wondered if those property owners had been notified if a through road was a possibility and their
cul-de-sac was being eliminated. He stated those familiar with Rhoads Court would note that the lot at the end
had a very expensive home under construction. He was sure it was valued at well over a million dollars and
there was one other home built on one of the other lots. He again asked if those property owners were aware of
that.
Mr. Lickman said that the trail in Rhoads Court as currently laid out traversed a large wash that went right next
to the proposed road. He asked how much of the wash would be needed the construction of the road. He did
not know, since he had not seen a map.
Mr. Lickman stated his biggest concern. He remembered sitting through a Council meeting approximately two
months ago when golf ball netting or fences were talked about. He pointed out that if anyone walked down
Rhoads Court and the trail that went beyond it to the water tank, golf balls would be seen all over that road
because this road was parallel to Sunridge Canyon Golf Course. He remembered the distance being 235 yards
to get to the street from the Fountain Hills Golf Course where a potential fence had been proposed. He
reminded the Council that this Council had turned down this golf ball net/fencing request. It was his opinion
that the Council would have a much more serious golf ball problem here than what was discussed with regard to
the old Fountain Hills Golf Course. He explained that anyone who slices a golf ball would go on that road. He
reiterated that golf balls were not only seen lying on the road but also north of the road. He stated that if a road
were built a very tall fence might have to be constructed to keep golf balls off the road.
His last comment was that he knew where the trail went up to the water tank past Rhoads Court and he thought
the double entrance would serve approximately one-third of Eagles Ridge North because both roads eventually
come together and then go north. He again stated that without seeing the map of the proposed road it was hard
for him to make that decision.
Mr. Lickman encouraged the Council to consider these issues because he felt that the Council might be creating
a larger problem than what it was trying to solve.
The motion CARRIED unanimously.
ITEM#12 CONSIDERATION OF INITIATING AN AMENDMENT TO CHAPTER 5.06 YARD, LOT,
AND AREA REQUIREMENTS, SUBSECTION F. SWIMMING POOLS, OF THE ZONING
Nov ORDINANCE FOR THE TOWN OF FOUNTAIN HILLS,SO THAT A NEW SWIMMING POOL AND A
NEW POOL ENCLOSURE FENCE OR WALL (BUT NOT POOL EQUIPMENT) MAY BE BUILT
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WHILE OBSERVING A STREET SIDE-YARD SETBACK OF BETWEEN TEN FEET (10') AND
cWENTY FEET(20')IF SEVERAL CONDITIONS ARE MET.
actor Valder said that in 1993 when the Town adopted its own zoning regulations one of the changes that the
own made was a change in the street side yard setback in many of the smaller lots in the single-family zoning
districts. The setback had been 10' and the Town modified it to 20" so that the street side yard setback would
be the same width as the front yard setback in those zoning districts. Since that time the Town has rejected
numerous swimming pool and side wall or fence permit applications from property owners who lived on corner
lots because walls, fences, and swimming pools were proposed to be located within the new 20' setback as
opposed to the old 10' setback.
Director Valder reviewed that recently the Town had rejected a similar application. After a couple of
conversations with the property owner and after physically inspecting the site we informed them that there two
ways in which the Town would permit a swimming pool and wall to be constructed within the 20' setback.
They could either get a variance approved or the zoning regulations would need to be amended in order to
permit the wall and the swimming pool to be built within that setback. He stated that staff had prepared a
possible amendment to section 5.06 (f) of the Zoning Code having to do with the swimming pools and their set
backs. He explained that if the Council would like to review this matter further,he would suggest that they send
it back to the Planning and Zoning Commission for a public hearing and their recommendation. He explained
that would result in a revision that would ultimately come back to the Council in a manner that would have the
least effect on the street side yard setbacks throughout the Town and that was what staff recommended.
Director Valder reviewed that he had written this revision in a very limited fashion so that it would assist these
property owners to construct a wall and swimming pool. He pointed out it would not give the property owners
exactly what they wanted as they had wanted to put the wall right on the property line. Director Valder stated
he had told them that the closest that he would get would be the 10' setback that was in effect when their house
was constructed,which was in early 1993. He said it would limit that the walls and swimming pools could only
occur encroaching into that setback at the most 10' so that there would always be a 10' clear area between the
-)perty line and any wall. He noted that this would only be applicable within the R1-10 Zoning District. He
ikooplained that a new wall or fence within that encroachment area would only be approved as a part of a new
swimming pool permit. If a property owner had a swimming pool on site and the fence were at the 20' setback
they could not come in and get a permit to tear down their existing wall at the 20' setback and move it to the 10'
setback. He reiterated that revision would only apply to new swimming pool permits. He noted that the pool
would have to be a part of the plans. The property owner could not come in for a wall without the
corresponding swimming pool application. He pointed out that he was trying to make this very limited to tailor
it to the needs of these particular property owners. Director Valder said that the single-family house must have
been constructed on the property prior to effective date of the zoning changes made in 1993. The house must
have been built to encroach into what was now the 20' setback. If the house were constructed after November
18, 1993, it wouldn't apply. If the house was constructed prior to November 18, 1993, but not constructed
within that 20' setback it wouldn't apply.
Director Valder said he had provided a memo from the Town Engineer Randy Harrel that he received today. He
noted that Mr. Harrel had made several suggestions and he wanted to take into account almost all of his
suggestions. Director Valder said he had conferred with Mr. Harrel prior to the Council Meeting and he noted
he had made other notes. If the Council were to initiate this amendment these additions would appear in the
public notice. Director Valder acknowledged that in addition to his four paragraphs, approval would be needed
from the Town Engineer ensuring that there weren't any street site-line infringements that would interfere with
any public utility or drainage easements. If the Town Engineer felt that there might be a future street, utility or
drainage improvements,the Town Engineer could reject it or require modification that the clear zone next to the
road couldn't be infringed upon. If any of the setback area was in a flood plain, the Town Engineer could also
reject or require modification. He noted that this information had been provided to the Council late but if the
Council were to initiate this amendment tonight he would have language in this document that would give the
Town Engineer the ability to ensure safety requirements.
Lyle noted that the only issue that he could not take care of that was listed on the Town Engineer's memo was the
item of landscape infringement. He said that change had been one of the main reasons that the previous Council
had moved the setback from 10' to 20' (for aesthetic purposes). At that point in time the walls were desired to
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Page 9 of 11
be close to the street and the Town wanted to provide 20' of landscaped area so that it would not appear to be
walled in.
Director Valder said the reasoning behind his paragraph #4 was to provide the Council with some clarification.
He reviewed that the main point in that paragraph was to say that the maximum encroachment allowed would
only be equal to the amount of the house encroachment into that setback.
Councilwoman Hutcheson MOVED to initiate the amendment as presented. The motion died as no one
SECONDED the motion.
ITEM#5 INTRODUCTION OF CONGRESSMAN J. D. HAYWORTH WHO WILL BRIEFLY
ADDRESS ITEMS OF MUNICIPAL INTEREST.
Mayor Morgan welcomed Congressman Hayworth. Congressman Hayworth stated that he stood ready to help
in any way. He said they were very happy to work with the Mayor and members of the Council as issues
emerge where there was some Federal jurisdiction. He was happy to work with Fountain Hills in any way. He
stated he had just stopped by after attending a local Town Hall meeting, which had been well attended.
Mayor Morgan asked if that offer of help extended to the Post Office as well as the FAA. Congressman
Hayworth responded that from time to time they did try to offer help in terms of locations of post offices and the
needs that communities have. He stated that the district director stood ready to help and he was also very happy
to help with reference to that issue.
Councilwoman Ralphe stated that she had been working with staff towards a new transportation service for
seniors namely subsidized taxi service. She asked if the Federal government could possibly assist Fountain
Hills in any way in terms of grants. Congressman Hayworth replied that for the purpose of full disclosure he
pointed out that he served on the "Ways and Means Committee" and it was his friends Ed Pastor and Jim Kolbe
who were the appropriators of funds. He expressed that from time to time they made some suggestions. He felt
those types of projects followed many of the efforts toward public transportation that existed. He stated he
would be happy to join with Fountain Hills to see what might exist in grant or line item form.
Councilman Kavanagh asked for any assistance with the air traffic situation as well as the current post office
issue. He felt that if Congressman Hayworth could solve those two problems, this would be one happy Town.
Congressman Hayworth said they would be happy to work with the Town on these issues. Mayor Morgan
thanked him for stopping by.
ITEM#13 CALL TO THE PUBLIC.
Councilman Kavanagh stated he would like to work with Director Valder on the rewording of his text
amendment previously addressed agenda item#12. He stated that he had felt it was a last minute thing and he
would like to see it presented to the Council.
Mr. Nordin reminded the Council that the only action being requested on this item had been to initiate the
amendment. Councilman Kavanagh responded that he understood that, but the way it had been presented he had
personally felt uncomfortable even giving it an indirect endorsement. He felt the last minute corrections were
really throwing the Council. Director Valder said he would bring it back to the Council at the next meeting.
ITEM#14 ADJOURNMENT.
Vice Mayor Wyman MOVED to adjourn and Councilwoman Ralphe SECONDED the motion, which
CARRIED unanimously. Mayor Morgan adjourned the meeting at 8:00 p.m.
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Page 10 of 11
TOWN OF FOUNTAIN HILLS
By:
Sharon Morgan,Mayor
ATTEST: rAt./14-4-A__ ALAA-A---/
Cassie B. Hansen,
Director of Administration/Town Clerk
11
PREPARED BY: (ti . 11 J tL 4)
Bev Bender,Executive Assistant
CERTIFICATION
I hereby certify that the foregoing minutes are a true and correct copy of the minutes of the Regular and
Executive Meeting held by the Town Council of Fountain Hills on the 19th day of April 2001. I further certify
that the meeting was duly called and that a quorum was present.
DATED this 3rd day of May 2001.
Cassie B. Hansen,
Director of Administration/Town Clerk
L
Saw
Town Council Regular and Executive Session 4/19/01
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