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HomeMy WebLinkAbout2001.0614.TCSEM.Minutes TOWN OF FOUNTAIN HILLS MINUTES OF THE SPECIAL AND EXECUTIVE SESSION OF THE FOUNTAIN HILLS TOWN COUNCIL June 14,2001 Mayor Morgan called the special session of the Town Council to order at 6:00 p.m. AGENDA 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 Hutcheson MOVED that the Council convene the executive session and Councilwoman Ralphe SECONDED the motion, which carried unanimously. Mayor Morgan recessed the executive session of the Town Council at 6:19 p.m. and reconvened the regular session of the Town Council at 7:00 p.m. 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, Director Hansen,Director Jeff Valder,and Town Attorney Bill Farrell Following the pledge to the,flag and the invocation by Vice Mayor John Wyman, the roll call was taken. 441111, AGENDA ITEM#1. CONSIDERATION WITH POSSIBLE ACTION TO APPROVE OR DISAPPROVE A SETTLEMENT AGREEMENT TO RESOLVE ALL PENDING LAWSUITS WITH MCO PROPERTIES CONCERNING THE FOUNTAIN HILLS MCDOWELL MOUNTAIN PRESERVE, THE PROPOSED EAGLE RIDGE NORTH AND EAGLE'S NEST SUBDIVISIONS, AND ALL ISSUES RELATING TO THE VALIDITY AND CONTENT OF THE TOWN'S SUBDIVISION ORDINANCE. Mayor Morgan briefed the public and the Council as to the order of the meeting. Town Attorney William E. Farrell gave an overview of events that led to the writing of this agreement. Mr. Farrell pointed out that Mr. Allen Cruikshank (Fountain Hills Times) performed a great public service by printing the entire agreement along with a colored map in the May 30th, 2001, edition of the newspaper. Mr. Farrell stated the current version included changes pursuant to instructions that he had received from the Council as to the Town's position. A copy of this document was distributed to the attending public. He apologized to the public, as they did not have the opportunity to see this version prior to the Council meeting. He acknowledged that was a valid criticism of this process. He pointed out that the Council had not received this document until 6 p.m. this evening so there hadn't been any opportunity to have this document made available to the public for review prior to this evening's meeting. Mr. Farrell expressed that no one had wanted to conceal anything from the public. It had not been humanly possible to have this agreement available for public review until now. He noted that public participation was the one key that made this settlement agreement so much different than the other settlement agreements that had been entered into during this process. The one instruction that he had received from this Council that had been the guiding principle during these negotiations was that the settlement had to have a public process component. He explained that this Council did not want to abdicate their responsibilities or that the L.,, previous Councils hadn't provided for a public component. It was a case that this Council desired that this would be literally the end to this issue. Mr. Farrell stated it was his opinion that the Town's subdivision ordinance could be shelved after these two subdivisions were approved, as this would be the last major property that would be subdivided in Fountain Hills. He stated that this subdivision was important because it would establish the view corridor and visual aspect of Fountain Hills as well as the active recreation component of mountain preservation. He pointed out that this would also present MCO with the opportunity to provide the community with 415 homes. With that in mind, and with the desire that both parties understand what they were giving up by stepping away from the lawsuit, there was some difficulty in arriving at some language that could be agreed upon. Mr. Farrell referred to the settlement agreement and acknowledged that the first two paragraphs had not appeared in the May 30th Times publication. He read both paragraphs aloud. Mr.Farrell said in his opinion these were the only significant changes made to the May 30th agreement other than small tweaks. Both parties were bound to attempt in good faith to seek plat approval of 415 units and the transfer of 354 acres for a sum of$13,5000.00. He stated that in theory there were two places where the Council could say no without obligation, the preliminary and final plat. He clarified that the Council could not really vote no at the final plat if the Council had approved the preliminary plat and the applicant brought back a final plat that conformed to the preliminary plat. The Council would be obligated,under the law,to approve the final plat. If MCO did not like what the Planning and Zoning Commission and the Council were willing to approve, MCO could quit and the parties could go back to court. He confirmed that the plats that would come before the Council would require their approval of modifications and waivers from the existing subdivision ordinance. Mr. Farrell acknowledged that historically this had been done through development agreements and/or Council action on most major subdivisions now in existence. MCO understands that the Planning and Zoning Commission may recommend other stipulations and conditions upon approval of the plat and that the Council might uphold or revise those stipulations at the time of the pubic vote on the preliminary plat. He pointed out that in the past when development agreements were reached the Council would inform the Planning and Zoning Commission that the Council had reached ari agreement asking that the Commission review the plat. This would be a reversal in the roles. This time the Planning and Zoning Commission had been asked by the Council to look with favor on 415 lots and provide a list of stipulations and conditions that they felt were necessary to get to the 415 number. Mr. Farrell stated that was part of the public participation process that was different than in the past and met the desires of the majority of this Council. The parties agreed that if the preliminary and final plat were not approved and/or MCO chose not to go forward as provided in the agreement, then the sole remedy for either side would be the resumption of all litigation placed on hold as a result of this current agreement and a requirement of a referendum election no later than May 2002. He repeated that the penalty if this agreement failed as being that the parties would go back to court. He said there would be many other documents that would come before the Council. Mr. Farrell stated that it was his recommendation and opinion that this should satisfy those concerns that he heard expressed by the Council. Mr. Farrell displayed a map on the overhead on which he indicated the areas that would be acquired under this agreement. He then discussed the current agreement paragraph by paragraph, identifying changes made that were different from the version previously published in the Times. Councilman McNeill provided a rendition of the proposed trailhead for the public to view and Mr. Farrell gave a brief overview. Mr. Farrell noted that MCO had indicated a desire for corporate reasons to conclude all transactions during the month of December. He confirmed that his response had been that the Council was willing to do everything they could to bring this to conclusion in December of this calendar year. Mr. Farrell stated that paragraph 15 was a moral and ethical dilemma for the Town Attorney and the Town Manager. His motivation was that he wanted to see this issue settled but he pointed out that the council could debate whether or not they wanted this paragraph in or not. With regard to paragraph#17,Mr. Farrell Town Council Minutes Special and Executive Session 6/14/01 Page 2 of 10 had indicated to MCO that he would pass along his recommendation to the Council that they make their decision on the agreement tonight. He emphasized Paragraph#19 was the result of approaching a problem in a unique way that resulted in a mutually cooperative effort to ensure that the residents did not lose access to the park and MCO still had the ability to maintain a gated community. Mr. Farrell noted that both parties had agreed to try mediation one more time if there were any problems before going back to court. Mayor Morgan asked if the Council had questions for Mr. Farrell. Councilman McNeill asked if the new language in Paragraph #2 overrode the limited language found in Paragraph #5 on the second page. Mr. Farrell responded that this agreement was different in that the normal conditions of breach and damage were absent from the agreement. He clarified that the old language resulted from an ingrained land developer's belief, fortified by the Town that they had to meet code before they could apply. Language had been included that stated that the Town understood that subdivision plans would be brought in that exceeded what the Town's code called for. He acknowledged that the paragraphs were inconsistent but he did not have any fears that the Council or the Planning and Zoning Commission would be limited in their actions. Councilman Kavanagh questioned the legality of two inconsistent sections of a contract that dealt with the same area stating a judge would normally look to the more specific and say that overrode the more general. Mr. Farrell agreed that would be the case if the agreement were found to be in conflict in litigation over the meaning of these two paragraphs. He explained that since there couldn't be a cause of action for breach as there wasn't any way that anyone would litigate this particular agreement. If the agreement were to fail,the other lawsuit would resume. He confirmed that he was comfortable, even though there was the appearance of inconsistency that there wasn't going to be a cause of action. Councilman Kavanagh questioned allowing language that really doesn't represent what they want because the other party could not do anything about it. Mr. Farrell replied regarding paragraph #5 of the agreement that if four or more of the Council felt that his explanation still made them uncomfortable, the Council could, by motion, remove the words"in paragraphs 5iii,9iii and 9iv and replace with the stricken word"herein". Councilwoman Hutcheson asked if it was Mr. Farrell's opinion that the inconsistency posed no adverse effect or harm. Mr.Farrell confirmed that was correct. Mayor Morgan MOVED to approve the settlement agreement as presented and Councilwoman Hutcheson SECONDED the motion. Mayor Morgan called on McDowell Mountain Preservation Commission (MMPC) Chairman Roy Kinsey. Chairman Kinsey thanked the Council publicly for the diligence and perseverance that they had gone through in following MMPC's recommendations. He stated that the public's concern at this time was directed now at the potential Planning and Zoning issues rather than preservation. Chairman Kinsey stated that the MMPC would be glad if the Council could achieve what was written in the agreement. He stated that if the 200 acres that reside in Fountain Hills, which belonged to Scottsdale's McDowell Sonoran Preserve, were to be added to the total land preserved in this agreement, the total would make up 90% of what had been sought for the preserve boundary. He reminded everyone that planning and zoning issues could only be resolved after the preliminary plat had been submitted. He requested that the Council vote positively on this agreement to keep the process moving forward. Chairman Kinsey felt that the real issue and opportunity for this Council was to apply whatever concerns they had to the review of the preliminary plat. Mayor Morgan called on Planning and Zoning Chairman Bob Howes. Chairman Howes acknowledged that the crafting of this document had been a difficult task. He stated that now that this progress had been made, it needed to be moved to the public forum to step#2, which was the preliminary plat approval process with Town Council Minutes Special and Executive Session 6/14/01 Page 3 of 10 the Planning and Zoning Commission. He said that if the agreement were to be approved tonight and faltered at either of the next two steps, the only thing lost would be time. He felt that everyone should be bolstered in the fact that the MMPC recommended the acceptance of this agreement and had the blessing of the trusted Town Attorney William Farrell. He said that the CPE and the Save the Mountains groups had concerns as well as others in the community but he felt those concerns could be negotiated and mediated at the preliminary plat stage. He stated that the Planning and Zoning Commissioners were prepared, with the help of town staff, to work with the citizens and MCO. Chairman Howes appealed to the Council to consider approving the agreement so that it could move forward to the next level. Mayor Morgan called on Parks and Recreation Commissioner Michael Fleck. Commissioner Fleck stated that he was representing the commission and Chairman Tim Brown in his absence. He said it was fair to say there was a majority consensus of the Parks and Recreation Commissioners and that was reflected in a number of statements of those who could not be here who had provided statements of support. Commissioner Fleck read a statement from the following commissioners: Commissioner Dick Schmidt's statement supported the compromise agreement and hoped it would move ahead and complete the process. The residents would enjoy the beauty of the mountains and would appreciate the trails that would be made available to them. Commissioner Carol Ayres statement urged the Town Council to vote to pay for preservation of the mountains. If the Town were to go to court or linger, it might cost the taxpayers more money. She pointed out that the MMPC was in favor of it and that they had spent a significant amount of time studying this proposal. Commissioner Al Lorenz thanked everyone involved who helped resolve the preservation and development of the McDowell Mountain in Fountain Hills. He believed that committed people had worked in good faith to fairly resolve differences on this topic. Although this wasn't a perfect agreement, it did meet the goals of preservation above 2400' and access to the mountains. He did not feel qualified to comment if the cost of$13,500 million was a good price for MCO but the alternative of going to court would only cost everyone more money and cause conflict and negative attitudes in town. He asked that the Council move forward with this fair and negotiated settlement. Commissioner Fleck than gave his own thank you to everyone involved. He knew this had been a difficult issue. He urged the Council to vote favorably. Mayor Morgan called for the general public's comments reminding them of their time limit for individuals and for those representing a group. Those who spoke in support of the settlement agreement were: Bob Sternfels. Mr. Sternfels also read a letter of support for Mike Petrone, 14805 Cerro Alto Dr_ Fred Pulve, 16915 Jacklin Dan Foster, 16529 Nicholas Dr. Bill Hodges, 13831 Sunset John O'Flynn, 16580 Sullivan President Al Donaldson, speaking for the Licensed Contractors Association Marsh Shiners, 16406 E. Heather Joanne Meehan, 16506 Trevino MMPC Vice Chair Peg Tibbetts, 15633 E. Sunflower Jerry Sheridan, 14965 E. Aspen. He asked that the Council not forget the equestrians in their trailhead plan. Don Swan, 14510 Golden Eagle — He asked that guard gate be moved further west to allow for visitor parking so the public wouldn't park in front of the houses on Golden Eagle. Planning and Zoning Commissioner Judy Dragiewicz, 10820 N. Middlecoff Phil Gazeano, 14946 E. Sierra Madre Travis Tonsay, 16707 E. Emerald Edwin Keye, Agate Knoll Arvid Dennis, 16644 Last Trail Town Council Minutes Special and Executive Session 6/14/01 Page 4 of 10 Those who spoke that did not support the settlement agreement were: Lori Noss, 14603 N. Fairlyn. She asked for additional time to examine the document and that the Council vote on the agreement at the next Council meeting. Dale Noss, 14603 N. Fairlyn Jack Hostack, 15841 Jericho Bob Barbanica, 16263 E. Hyde Park He expressed concern with regard to the upper trail entrance going through a gated community. He felt that potentially there might be a problem with the future homeowners association in the area with the public passing through their gated community everyday. Mayor Morgan called for a break at 8:35 p.m. Mayor Morgan reconvened the meeting at 8:45 p.m. Mayor Morgan acknowledged that this agreement was not perfect for either side, as both parties had to give. She pointed out.that these debates and discussions have been going on for 3+ years and the time has come to put aside personal feelings and agendas. This was the chance to show that this was "our town". There was now a chance to make Fountain Hills "our town" by working together. She stated that she supported this settlement and would vote accordingly. She asked to move to the next step, the preliminary plats. Councilman Kavanagh stated he would be voting against this deal. He said the main reason was that the Town could not afford it. At $13.5 million dollars for 350 acres had the Town paying about $38,000+ for each acre of preserve land. That figure was twice as much as the Town would have paid had the Town accepted the $6 million dollar deal back in July 1991. The difference between the first deal and this one was that the Town had only gained about 35 more acres. He was willing to concede that these 35 acres were nicer than the other ones, but 35 additional acres for$7.5 million dollars comes to $214,000 per acre tokiw and no land was that nice. Councilman Kavanagh stated that Director Valder had conservatively estimated that the lot, development, and environmental.concessions that the Town was making to MCO would • increase the value to them somewhere in the area of $35 — 50 million dollars. If the Town was giving concessions worth that much, or even half that much, then why was the Town paying $13.5 million dollars which was straining the Town budget and would delay other necessary projects. He wanted to see some of the windfall profits that MCO was getting come back to the Town especially to Parks and Recreation. He opposed this because he did not believe there was a public mandate to spend $13.5 million dollars on preservation. He believed the public mandate was for$6 million dollars as that was what the people voted for. Councilman Kavanagh pointed out that some felt that the mandate to go beyond the $6 million dollars occurred at the election when all three preservation candidates won. Had all three preservation candidates said to the people that we hope the land will cost $6 million but it might cost $12 — 15 million, then he would agree that the public mandate had come at that point. He pointed out that at the candidate debate when he raised the point that this could cost as much as $12 million or more, all three of those candidates backed away quickly and replied that was speculation and that it probably won't cost more than the original $6 million. Councilman Kavanagh stated he did not see the mandate coming from that action. He did not feel that$13.5 million dollars could be spent when the mandate was for$6 million dollars. Councilman Kavanagh said that the third reason the mandate was lacking was the ASU poll. He said it was a scientific poll and used a professional sampling techniques. The results were that 69% of the people polled wanted to spend nothing or no more than the $6 million dollars. He noted that also spoke against the mandate. Town Council Minutes Special and Executive Session 6/14/01 Page 5 of 10 Councilman Kavanagh said that at this time it was not fiscally sound to spend $13.5 million dollars. He noted that there was the issue of the PG&E$2 million dollars still in jeopardy,the over all economy seemed to be going into a slump, and the property taxes would have to be increased. He was concerned that the Town's other wants and needs would be jeopardized and there would be difficulty in funding them. He stated that Fountain Hills was a big town with a lot of diverse people. If one group took too big a slice of the pie, there wouldn't be enough left for the rest. Councilman Kavanagh stated that twice he voted to continue the endeavor to get this preservation through the lawsuits. He had twice voted with the "preservationists" because the legal advice given was that Fountain Hills had a strong case and the MCO case was weak. That was why he had voted to continue the legal journey. He was of the opinion that there was still a strong case and if it went to court the Town could get this land close to the appraised value. Then the Town would be in the position to bargain the $35 — 50 million dollars in developmental concession that would be given to MCO and get some of that back. He stated the Town could get more for less. Vice Mayor Wyman pointed out that it was never thought that $6 million would buy the land in the mountains. He explained the original deal as being $6 million plus concessions from the people in the northwest agreeing with the master developer to permit zoning changes. Those zoning changes would have changed R1-43 to R1-10 or R1-18 thereby increasing the density at the lower levels so that the Town could get all of the land down to the 2100' level. That was the deal. Vice Mayor Wyman stated that deal was gone. He acknowledged that the July 1999 plan, which was voted down, permitted a number of home sites above the 2400' level. That first agreement compromised the building ordinances, did not allow for a trailhead,allowed Box Canyon gating,gutted the saguaro forest and lacked any regional park access. Vice Mayor Wyman pointed out that the new proposal provided for a vehicle accessible trailhead, kept all but three sites in Eagles nest below 2400', bridged sensitive washes, protected the saguaro forest, provided regional park access,and limited disturbance envelopes to specific sites. He stated that at$13.5 million this deal was affordable. He noted that this Council had behaved in a responsible way by implementing taxes and development fees that were strictly limited to preservation. He acknowledged that those fees could not be used for anything other than preservation. It was his judgment in the years ahead the Town would take in as much as $840,000 in sales taxes that could only be used for preservation by law. The cost of the$7.5 million dollars needed, borrowed through a municipal property corporation, would require, according the Town Manager, $725,000. Vice Mayor Wyman stated that the Mr. Nordin was notoriously conservative and Vice Mayor Wyman estimated that figure would be closer to $675.000. In other words, the Town Manager had a pad built in his figure. Vice Mayor Wyman pointed out that he had not yet added into this the development fees that would be collected at the fee of$1200 per home. Vice Mayor Wyman reiterated that this agreement was affordable. Vice Mayor Wyman stated that an important aspect of the agreement was that it provided for the dismissal of all lawsuits between the parties. He said the attorneys had warned the Council that the most likely price that would be set by an ill-informed jury attempting to work with a very complicated subject would be $45,000. Vice Mayor Wyman confirmed that the Town's own appraiser had increased his price to$32,000 from $30,000 on his appraisal. He felt that somewhere in the middle at about $45,000, because Fountain Hills was unfortunately perceived as an affluent community, that the same jury would find it necessary to come up with severance damages to award to the developer. That figure could be somewhere on the order of$10 million dollars. He stated that was the same money that he had hoped to buy land with rather than pay it out to the developer as a consequence of severance damages. With the additional risk of incurring continued litigation costs estimated to be somewhere in the area of half a million dollars, the advantages associated with settlement had become even more attractive. Vice Mayor Wyman responded to the concern that the McDowell land purchase diverted attention from other important issues such as Parks and Recreation, Senior Center, Boys and Girls Club, Community Town Council Minutes Special and Executive Session 6/14/01 Page 6 of 10 Theater, and downtown development. He felt that in the absence of an agreement, those issues would continue to suffer funding shortfalls in the face of ongoing litigation costs and court directed severance judgments. He felt that settling this with funds that could only be used for that purpose alone actually takes the heat off the other fronts. He said if the Town had a problem right now, it was because of the $2.1 million problem with PG&E. It wasn't that the Town didn't have the reserves, but because the Town was under state spending restrictions as mandated by law. Vice Mayor Wyman pointed to the fact that the Town Manager was trying to negotiate a release of some of those funds now. He found it reassuring that the MMPC, who had spent 6 years studying this matter in detail, had unanimously supported this particular agreement. He stated that town staff and the Planning and Zoning Commission would competently address the platting situation as the process proceeded. He reiterated that along that plat approval process the Council had sufficient leverage to assure an acceptable result. Vice Mayor Wyman asked that the Council vote with him in supporting this agreement. Councilwoman Ralphe agreed there was reason to celebrate and weep. She said it was regrettable that mountain preservation talks went on largely behind closed doors during council executive session. She apologized to the public for agreeing to be part of that backroom decision-making. Councilwoman Ralphe stated that the good news of the agreement was the preserve complete with access roads and trails. She felt that the Town gave up too much to get it. She stated that the agreement would defile twice as many pristine mountainous acres via lax town ordinances as the preserve would protect. She pointed out that under this agreement that MCO would have the last say on plat approval after the council had given their approval of plats submitted. Councilwoman Ralphe expressed concern that MCO would be able to unravel decisions made along the public process. Another problem was that the agreement would provide that the Town would pay interest to MCO on the preserve price long before the deed ever passes to the Town. Last week she had made an attempt to keep sewer and water lines substantially out of mountain washes via the public process of Planning and Zoning. She had also suggested that bridges and other wash crossings should be decided according to that same public process. She noted that ideas even that basic had been rejected. Councilwoman Ralphe felt that this Council had failed to negotiate from a position of strength and to get for the citizens all that they could have and should have. She expressed that this agreement paid too much considered what the Town would have to give away. She reiterated her apology to the people. Councilwoman Ralphe envisioned successful negotiations as a scale with both sides at equal height. She stated that the Town's victories from this agreement however, would be light in comparison to MCO's. Councilwoman Ralphe said she would vote no as this was not the Council's best effort. She said in discussions with the Town Attorney, Mr. Farrell had indicated that he had a doable "Plan B"to achieve the mountain goals if this agreement were to be turned down. Councilwoman Ralphe stated that by voting no she hoped that the knowledge of what this Council would likely do to the rest of the mountains would not weigh too heavily on her. Councilwoman Fraverd said that her decision was based on what she had heard this evening during the public process. She was surprised at the comments made. She said that this was a great deal but disappointed that the Town had to spend so much money, give so many incentives and not get the full preserve. She had hoped that the Council could have done better than that. She acknowledged that the Town was going to get the preserve and trail, but the Town was giving up every penny set aside for this land and the subdivision ordinance in order to obtain that. She felt that was a hefty sum to pay. Councilwoman Fraverd reiterated that the town was not getting an equal deal here and if the public still supported the agreement then she would listen to the citizens as long as the public understood that. She said that she would reluctantly support this agreement. She pointed out that the Town was deviating from the subdivision ordinance and in an effort of good faith she made the following statement. Councilwoman Fraverd said that she expected the future development to be aesthetically pleasing and environmentally Town Council Minutes Special and Executive Session 6/14/01 Page 7 of 10 sensitive. She pointed out that regardless of the language in this agreement the Council still had some discretion. She acknowledged that the agreement allowed for cuts and fills, but she expected those cuts to be covered up and restored visually. Councilwoman Fraverd noted that the agreement also allowed for over height walls and she expected those to be almost, if not totally, invisible to the Town through the use of natural material. She said she would have faith in MCO's people to figure out what this council was looking for so this process can continue in a timely and pleasant manner. Councilwoman Fraverd expressed her displeasure about the timeframe on this. She had been pressed from both sides to make a decision tonight. She would have preferred to continue this issue, as she did not like to feel rushed. She stated that she expected to see that both the Planning and Zoning Commission and the Council have two weeks to look at the preliminary plat because there was still a"no vote"available. Councilman McNeill said this had been a difficult decision for him. He acknowledged that when he ran for office he had been one who had wanted to preserve the mountains and fully apply the Town's subdivision ordinances. He stated that this proposed agreement would preserve a substantial parts of land wanted but would relax the Town's ordinances to a degree he would not have imagined a year ago. He stated that the settlement, in his mind, was not a great deal for the Town. This settlement gave MCO concessions in terms of lot count, waivers, and gates that were worth tens of millions of dollars, but gave the Town the land bargained for at an affordable price. However, none of that counted in the condemnation case that the Town was about to get into to. In that context, he felt that the Town was getting a reasonable price and probably a better price than what the jury would have arrived at. Councilman McNeill said that in addition to a preserve the Town was getting an end to the litigation and acknowledged that this agreement was a compromise. He pointed out that the binding nature of the additional language in the beginning two paragraphs had helped him accept this agreement. With this additional language the Town had the prospect of a real public process going forward in front of the Planning and Zoning Commission. He felt it was now appropriate to move this issue forward to the Planning and Zoning process. Councilman McNeill confirmed that this agreement relaxed the Town's rules. He asked that MCO.step up to the statements they had made along time ago about being able to construct a more environmental sensitive development if the Town relaxed their rules. He hoped and expected that as the Planning and Zoning Commission looked at the preliminary plat they keep MCO's past promises in mind. He expected that there would be a full and complete review process of the preliminary plats. Councilman McNeill noted he would be looking for those items as recommended by the MMPC, the invisibility of those proposed cut and fill waivers, unobtrusive retaining walls, as well as reasonable and safe roads. He said the public access to the County Park and the Dixie Mine area was very important to him. Councilman McNeill reiterated a comment made by a citizen who lived at the end of Golden Eagle that he did not want to see a permanent parking lot in front of his house. To make that work there needed to be as many parking spaces as possible outside the gated area and not impact the existing home owners. Councilwoman Hutcheson said she had been at this for a long time as well as with preservation issues in this Town. She conceded that compromise did not come easily to her. She had voted no on the last proposal and she had mixed emotions as negotiations had gone forward. She felt that her job on the Council was to focus on what was best for the Town. When talking about this agreement she had taken into account the MMPC's recommendation. She heard that this agreement would reach 85 — 90% of MMPC's goals and objectives that they wished to achieve. She and the Parks and Recreation Commission were pleased that there would be an open road to a central trailhead that would provide access to all. There was the bonus pedestrian and bike access through a gated area and that was a benefit too. In looking at the land acquired, she said that when the public was looking at mountains not only would the public be looking at the land that the Town owns, but the land that will be undisturbed forever. Councilwoman Hutcheson confirmed that that the Town had the money and this was a reasonable amount to pay. She felt the Town would still be able to fund other priorities. Town Council Minutes Special and Executive Session 6/14/01 Page 8 of 10 Councilwoman Hutcheson stated that one of her main concerns had been sensible development of the remainder of the property. She was aware of what the subdivision ordinance had been crafted to do but she also had confidence in the Planning and Zoning Commission's ability to look at the plats and go through the public process coming to some reasonable conclusions. She remembered that when the subdivision ordinance had been crafted, the point had been discussed with the MMPC that if and when it had gotten to the preliminary plat stage in the mountain land, that the Planning and Zoning Commission would be willing to relax some of the Town's ordinances in order acquire mountain land. She felt that this was a good example of what was being done. Councilwoman Hutcheson expressed that with the other developments that MCO was selling an amenity. She pointed out that when it comes to the mountain land that the amenity that MCO would be selling was the very one that the Town wants and that was the beauty of the preserve and the natural area. She stated that it would be in MCO's best interests to maximize that beauty in the area. Councilwoman Hutcheson agreed that this was a compromise and she would like to see more land but in the end the benefits that the Town was gaining far outweighed the risk of anything further that the Council could do at this time. She pointed out that when looking back, the legacy left would be the mountains. In five to twenty years no one will ever say you spent too much money or saved too much land because in the end the Council will be judged not by what was created but by what they did not destroy. She stated she would be supporting the settlement agreement. Councilman Kavanagh AMENDED the motion to delete the words "The Town Attorney and Town Manager,as well as"from paragraph#15 and Councilwoman Ralphe SECONDED the amendment. Councilman Kavanagh said this section mandates that the Town Attorney and Manager as well as two MCO representatives had to publicly announce their support for and endorsement of the settlement and actively seek the Town Council's approval required by this agreement and the settlement agreement. He did not think the Council should be selling the Town's staff. By mandating that Town staff support not only this settlement agreement but also everything required to make it happen such as plat approvals'puts staff in a position of conflict of interest. He did not think this wording was necessary as there was adequate support on the Council for the agreement. The Council did not need to force staff to say things and he wanted to see staff kept to a neutral position. Councilwoman Ralphe seconded this because she envisioned a councilmember coming to staff asking what the pros and cons of(whatever the concern was) and not being quite sure that an unbiased discussion could be possible. Staff might feel pressured to speak to one side more than the other. She also understood that clauses like this were quite unusual. Councilman McNeill noted that he had always objected to this provision. He did not see the necessity for it. After the discussion just held, he felt there was a majority of Council in favor of this settlement agreement. He said the Town Attorney and Town Manager always act as a majority of Council. He also felt this language could create a conflict of interest for staff. Mayor Morgan called for a vote on the amendment. The amendment CARRIED on a vote of 5—2. Mayor Morgan and Councilwoman Fraverd cast the nay votes. Mayor Morgan called for roll call vote on the motion with the amendment with the following results: Councilman Kavanagh- nay Vice Mayor Wyman - aye Councilwoman Ralphe— nay Councilwoman Fraverd - aye Councilman McNeill - aye Town Council Minutes Special and Executive Session 6/14/01 Page 9 of 10 Councilwoman Hutcheson - aye Mayor Morgan- aye The motion CARRIED on a roll call vote of 5—2. AGENDA ITEM#2. CALL TO THE PUBLIC. No one came forward. AGENDA ITEM#3. ADJOURNMENT. Councilwoman Hutcheson MOVED to adjourn and Councilwoman Fraverd SECONDED the motion, which CARRIED unanimously. Mayor Morgan adjourned the meeting at 9:30 p.m. TOWN OF FOUNTAIN ILLS B G� Sharon Morgan, ayor ATTEST: (A4-4 L4-tom) ) c ,t_' Cassie B. Hansen, Director of Administration/Town Clerk ' 4 JJ���� PREPARED BY: 61)-X_ i" y_.tY ) . Bev Bender,Executive Assistant CERTIFICATION I hereby certify that the foregoing minutes are a true and correct copy of the minutes of the Special and Executive Meeting held by the Town Council of Fountain Hills on the 14th day of June 2001. I further certify that the meeting was duly called and that a quorum was present. DATED this 5S1 day of July 2001. Kij Cassie B. Hansen, Director of Administration/Town Clerk Town Council Minutes Special and Executive Session 6/14/01 Page 10 of 10