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HomeMy WebLinkAbout2003.1002.TCREM.Minutes TOWN OF FOUNTAIN HILLS MINUTES OF THE REGULAR AND EXECUTIVE SESSION OF THE FOUNTAIN HILLS TOWN COUNCIL flimw OCTOBER 2,2003 Mayor Nichols called the meeting to order at 5:30 p.m. AGENDA ITEM #1 — VOTE TO GO INTO EXECUTIVE SESSION: PURSUANT TO A.R.S. 38- 431.03.A.1., (i) FOR: DISCUSSIONS OR CONSIDERATION OF EMPLOYMENT, ASSIGNMENT, APPOINTMENT, PROMOTION, DEMOTION, DISMISSAL, SALARIES, DISCPLINING OR RESIGNATION OF A PUBLIC OFFICER, APPOINTEE OR EMPLOYEE OF ANY PUBLIC BODY, EXCEPT THAT, WITH THE EXCEPTION OF SALARY DISCUSSIONS, AN OFFICER, APPOINTEE OR EMPLOYEE MAY DEMAND THAT THE DISCUSSION OR CONSIDERATION OCCUR AT A PUBLIC MEETING. THE PUBLIC BODY SHALL PROVIDE THE OFFICER, APPOINTEE OR EMPLOYEE WITH WRITTEN NOTICE OF THE EXECUTIVE SESSION AS IS APPROPRIATE BUT NOT LESS THAN TWENTY-FOUR HOURS FOR THE OFFICER, APPOINTEE OR EMPLOYEE TO DETERMINE WHETHER THE DISCUSSION OR CONSIDERATION SHOULD OCCUR AT A PUBLIC MEETING (SPECIFICALLY, THE APPOINTMENT OF CITIZENS TO THE COMMUNITY CENTER ADVISORY COMMISSION AND THE PLANNING AND ZONING COMMISSION); (ii) A.R.S.38-431.03.A.3 FOR DISCUSSIONS OR CONSULTATION FOR LEGAL ADVICE WITH THE ATTORNEY OR ATTORNEYS OF THE PUBLIC BODY (SPECIFICALLY, THE FINAL PLAT FOR SUMMIT AT CRESTVIEW); AND ARS 38-431.03.A.4, FOR DISCUSSION OR CONSULTATION WITH THE ATTORNEYS OF THE PUBLIC IN ORDER TO CONSIDER ITS POSITION AND INSTRUCT ITS ATTORNEYS REGARDING THE PUBLIC BODY'S POSITION REGARDING CONTRACTS THAT ARE THE SUBJECT OF NEGOTIATIONS, IN PENDING OR CONTEMPLATED LITIGATION OR IN SETTLEMENT DISCUSSIONS CONDUCTED IN ORDER TO AVOID OR RESOLVE LITIGATION (SPECIFICALLY, CLAIM BY THE TAXPAYER FOR REFUND.) Councilwoman Stevens MOVED to convene the Executive Session and Vice Mayor Ralphe SECONDED the motion, which CARRIED UNANIMOUSLY. Mayor Nichols recessed the Executive Session at 5:30 p.m. AGENDA ITEM#2—RETURN TO REGULAR SESSION Mayor Nichols reconvened the Regular Session at 6:30 p.m. Following the invocation by Councilman Melendez, roll call was taken. ROLL CALL — Present for roll call were the following members of the Fountain Hills Town Council: Councilman Archambault, Mayor Nichols, Councilwoman Stevens, Councilman Kavanagh, Councilman Melendez, Councilwoman Nicola, Vice Mayor Ralphe, Town Attorney Andrew McGuire, Town Manager Tim Pickering, and Town Clerk Bev Bender were also present. MAYOR'S REPORT Mayor Nichols stated that this evening he had a Proclamation recognizing the Knights of Columbus, which sponsors events and programs that aid ill, underprivileged and mentally handicapped children in Arizona. He read the Proclamation and said that mental health disorders affected the lives of thousands of Americans and their families. Disabled persons make many fine contributions to all areas of society and their value as productive members of the community should not be underestimated. He noted that funding to help the disabled reach their full potential through education and employment opportunities was severely limited at the state and local levels and therefore the efforts of the Knights of Columbus were critical to assist the children. The Mayor stated that the Tootsie Roll Drive was a three-day project taken on by the Knights of Columbus in an effort to collect contributions to help support state programs for mentally retarded and handicapped children. Mayor Nichols, speaking on behalf of the Town Council, recognized the efforts of the Knights of Columbus in raising funds to support the important mission of providing services and support for mentally handicapped children E:\BBender\Documents\Current Minutes 2003\10-02-03 Regular and Executive Session.doc Page 1 of 36 in Arizona. He said that it was his honor to proclaim October 23, 24 and 25, 2003 as "Knights of Columbus Tootsie Roll Drive Days." Mayor Nichols explained that at this time, the rotation of the position of Vice Mayor would transfer from Vice Mayor Ralphe to Councilman Melendez. Mayor Nichols thanked former Vice Mayor Ralphe for serving in that position for the last six months and noted that the position of Vice Mayor in the Town of Fountain Hills rotated every six months from one Councilperson to the next. Vice Mayor Melendez expressed his personal appreciation to Councilwoman Ralphe for the term that she served as Vice Mayor. He said they worked jointly on a couple of projects, one of which would be discussed this evening. He added that he would also like to thank his wife and best friend who was in the audience this evening for her support and for providing him with the energy to move forward. SCHEDULED PUBLIC APPEARANCE/PRESENTATION Mayor Nichols stated that at this time he would like to ask that Representative Michele Reagan, who represents the Town of Fountain Hills at the State Legislature, come forward and present some comments on what was happening at the State Legislature at this point in time. Representative Reagan addressed the members of the Town Council and the audience and said that the Legislature had a very tough session and, following a month off, the Governor called a Special Session last week, which would start October 20t. She said they had been told that it would be a long Special Session and they did not expect it to end before the end of the year. She noted that the next Regular Session started in January so that created a time crunch. She reported that the three things that the Governor had ordered the Legislature to do during the Special Session were (1) deal with the Department of Corrections; (2) deal with Child Protective Services; and (3) solve a $5.00 minimum"withholding snafu"that went into the budget in the middle of the night,just before the budget was passed. She discussed the Department of Corrections and said that a severe bed shortage existed in Arizona, approximately 4,000 beds short. There were problems with some of the Corrections Officers and the fact that their pay was very low yet they were being asked to work in what they felt are unsafe conditions because of the over crowding. She added that they were"double bunking" inmates and the Correction Officers were no longer safe working in such an environment. She noted that they made less per year than the people screening baggage at Sky Harbor. She said they were looking at whether privatization of prisons would help the financial situation and said that utilizing monitoring and implementing early release programs might also help alleviate some of the problems. She stated they wanted to analyze whether technology could be used instead of incarceration and noted that it cost approximately $19,000 a year to incarcerate an inmate (non violent offenders) and it cost approximately $7,000 a year for a very intensive parole program where they were monitored. Representative Reagan also discussed issues associated with Child Protective Services (CPS) and said everyone was aware of the recent high profile cases,particularly the one where the two little boys were in cages, and said the really sad thing about this was that CPS had visited that home a number of times. She added that the family was enrolled in a program called "Healthy Families." She stated that there were obviously many things that needed to be done to improve CPS and that right now it was housed under the Department of Economic Security (DES). They were considering moving it off on its own so it would have a little bit more oversight. She reported that the Governor had recommended 42 changes that she would like to see made and said that some of them were going to cost money and she anticipated some debate on this,particularly on the issues that were going to impact the budget. She stressed the importance of focusing on the children rather than on the families and said right now they were trying to keep families together and there were certain family environments in which children were clearly not safe. Representative Reagan talked about the $5.00 minimum withholding and said it was a crazy idea that someone threw into the budget literally during the middle of the night. She said they passed the budget because they needed to do so because their fiscal year was getting ready to begin and they were hoping to get this idea taken out of the budget. She explained that it was supposed to be removed in what was called a "trailer bill," which was to follow E:\BBender\Documents\Current Minutes 2003\10-02-03 Regular and Executive Session.doc Page 2 of 36 the budget the following day and remove this item. She said that unfortunately the end was called before the trailer bill passed and so the $5.00 withholding was still in the budget. She stated that anyone wishing additional information on this complex issue should contact her and said it was deemed not to be able to be implemented by the Department of Revenue. She added that they could not implement it and it was silly to make laws that could lir not be implemented and therefore they were going to eliminate it from the new statutes. Representative Reagan also reported that the latest fiscal numbers had come out and they were approximately $100 million over where they were hoping to be as far as revenue coming into the State of Arizona so that was good news. She added that her door was always open and invited the citizens to contact her at any time. Mayor Nichols thanked Representative Reagan for her report. CALL TO THE PUBLIC Mayor Nichols stated that the Council changed the order of the agenda in September so that the Call to the Public would be first so that citizens wishing to speak did not have to remain until the end of the meeting to do so. He asked if there was anyone who wished to speak at this time and said that the time limit was three minutes. He clarified that the items that were discussed under this agenda item should not be ones that are already listed as part of the agenda this evening. He added that citizens who wished to speak on one of the agenda items could submit cards and do so at that time. John Turner, 17135 Calaveras, said that he would like to speak on the issue of the skate park. He stated that he read a quoted intention from the Parks & Recreation Department that they wanted to move the vandalism problem from Golden Eagle Park to Four Peaks Park. He informed the Council that he and the 25 families in the Four Peaks area who he represented find this to be unacceptable. He added that they were opposed to the skate park being built in their neighborhood because of the negative impacts that would occur. He requested clarification on some actions by the Parks & Recreation Department and by the Skate Park Committee and said that it was their understanding that the Skate Park Committee was actively in the process of selecting a building site, contractors, and even suppliers for the proposed Skate Park. He added that they were designing ramps and ultimately would decide if the park would be built in or above the ground. Mr. Turner stated that they had also been informed that they were even deciding on how much the Skate Park would cost and most recently estimated $250,000. He said that all of this was being sanctioned and approved by the Parks & Recreation Department. He asked whether the Town had granted this type of authority to the Skate Park Committee. He said if not, they would be nothing more than a privately funded special interest lobby group and they questioned why the Parks & Recreation Department and Commission was allowing this to continue. He informed the members of the Council that as neighbors in this area, they would like closure to this issue and verification that a new location, one that would not impact their neighborhood or any other neighborhood, had been selected. He stated that if this could not be done,they would at least like to have a timeframe in which the selection could occur. Mayor Nichols thanked Mr. Turner for his comments. Councilwoman Nicola requested that staff review this matter and report back to Council. She also asked that the Council and the Parks & Recreation Commission conduct a joint work-study session to discuss the Skate Park within the next 60 days. Mayor Nichols read the following consent agenda items: AGENDA ITEM #1 — CONSIDERATION OF APPROVING THE MEETING MINUTES OF 9/18/03 AND 9/22/03. AGENDA ITEM #2 — CONSIDERATION OF RESOLUTION 2003-61 CALLING THE MARCH 9, 2004 ELECTION. E:\BBender\Documents\Current Minutes 2003\10-02-03 Regular and Executive Session.doc Page 3 of 36 AGENDA ITEM #3 — CONSIDERATION OF THE SPECIAL EVENT REQUEST SUBMITTED BY THE CHANDLER CHAMBER OF COMMERCE FOR THE STROLL THE GLOW ON THE AVENUE SCHEDULED FOR SATURDAY,DECEMBER 6,2003 FROM 6:00 P.M.TO 8:00 P.M. AGENDA ITEM #4 — CONSIDERATION OF RESOLUTION 2003-56 ABANDONING WHATEVER RIGHT, TITLE OR INTEREST THE TOWN HAS IN CERTAIN PUBLIC UTILITY AND DRAINAGE EASEMENTS LOCATED AT THE NORTHERLY PROPERTY LINES OF LOT 7, BLOCK 1,PLAT 605D (15262 E. MUSTANG) AS RECORDED IN BOOK 164 OF MAPS, PAGE 15, RECORDS OF MARICOPA COUNTY,ARIZONA. EA03-15(TIMOTHY MONNIG). AGENDA ITEM #5 — CONSIDERATION OF RESOLUTION 2003-57 ABANDONING WHATEVER RIGHT, TITLE OR INTEREST THE TOWN HAS IN CERTAIN PUBLIC UTILITY AND DRAINAGE EASEMENTS LOCATED AT THE SOUTHERLY PROPERTY LINES OF LOT 32, BLOCK 1, PLAT 505C (16832 N. STONERIDGE COURT) AS RECORDED IN BOOK 158 OF MAPS,PAGE 42, RECORDS OF MARICOPA COUNTY,ARIZONA. EA03-16(DENNIS & KATHRYN COLLINS). AGENDA ITEM #6 — CONSIDERATION OF RESOLUTION 2003-58, ABANDONING WHATEVER RIGHT, TITLE OR INTEREST THE TOWN HAS IN CERTAIN PUBLIC UTILITY AND DRAINAGE EASEMENTS LOCATED AT THE NORTHEASTERLY PROPERTY LINES OF LOT 26, BLOCK 9, PLAT 111 (16244 E. STANCREST DRIVE) AS RECORDED IN BOOK 150 OF MAPS, PAGE 12, RECORDS OF MARICOPA COUNTY,ARIZONA. EA03-17(RONALD S.TIMMS). AGENDA ITEM #7 — CONSIDERATION OF A REQUEST FOR A SIX MONTH EXTENSION OF THE SPECIAL USE PERMIT TO ALLOW A KENNEL WITH PROPOSED HOURS OF OPERATION OF 5:30 A.M. TO 11:00 P.M. AND MANAGERS' RESIDENCE ON THE SECOND FLOOR LOCATED AT 11669 N.SAGUARO BOULEVARD,AKA PLAT 302,BLOCK 1,LOTS 3 & 4. CASE NUMBER SU2002-09. Councilwoman Nicola MOVED to approve the Consent Agenda as read and Vice Mayor Melendez SECONDED the motion. A roll call vote was taken with the following results: Councilwoman Nicola Aye Mayor Nichols Aye Councilman Kavanagh Aye Councilwoman Stevens Aye Vice Mayor Melendez Aye Councilwoman Ralphe Aye Councilman Archambault Aye The motion CARRIED UNANIMOUSLY(7 to 0). AGENDA ITEM #8 —REPORT AND RECOMMENDATION BY THE STATE LAND AD HOC COMMITTEE WITH POSSIBLE TOWN COUNCIL ACTION AND DIRECTION TO STAFF AFTER CONSIDERING THE COMMITTEE'S RECOMMENDATION. Mayor Nichols stated that this agenda item relates to a report and recommendation from the State Trust Land Ad Hoc Committee. He reminded the public that the Council's procedural rules, which were put into effect this September,called for a staff report on an item, followed by Council questions to the presenter, followed by opening the floor up to public comment with a time limitation of three minutes each speaker, unless the speaker previously obtained permission from the Town Clerk before the meeting to speak for five minutes. He advised those citizens who wished to speak to fill out a speaker card and submit it to the Town Clerk before the presenter had finished his/her presentation. He added that following the public comments, the Council would make a motion and discuss/vote on any motions that were made. Town Manager Tim Pickering advised that Myrna Smith, Chair of the State Trust Land Ad Hoc Committee, was present and would provide an overview of the Committee's recommendations and highlight a power point E:\BBender\Documents\Current Minutes 2003\10-02-03 Regular and Executive Session.doc Page 4 of 36 presentation. He expressed his appreciation to the members of the Committee and staff who worked closely together and expended great effort on this important matter. Ms. Smith thanked the Mayor and Council for allowing her the privilege of serving in this capacity and said that all of the members of the Committee loved Fountain Hills and wanted only the best for the Town. She added that they attempted to make their decisions based on that desire. She expressed appreciation to Town staff who had provided vital assistance and support. Ms. Smith referred to a map of the State Trust Land in question displayed in the Council Chambers and stated that the method they used in reaching their decision was to solicit a wide variety of testimony in order to prepare recommendations for the Council to consider. She stated the opinion that among the most important testimony they received was from Lillian Moodey from the State Land Department. She said that the Committee's report contained all of Ms. Moodey's testimony; however, at this time she would like to point out certain extractions from that document. She stated that (1) the appraisal that the Town received a couple of years ago in the amount of approximately $32 million was only good for six (6) months, all appraisals were only good for six months. She added that whatever happened, the land would have to be re-appraised; (2) land purchased on terms did not quality for matching grant funds; (3) once the withdrawal order expired, all sales were subject to open auction. She said that presently and until the end of this month, unless an extension was granted, the land was under conservation only and although anyone could bid on it, they would also have to purchase it for the purpose of conserving it as open space. She added that after the withdrawal order expired on October 27th or one to three years later, the land would then be open to bid for any use; (4) a request for an extension of an item must be accompanied by a legitimate demonstration of progress toward a purchase. Ms. Smith said that she also wanted to point out since annexation was one of the issues they asked the Committee to examine, the steps that must be taken in order to annex under the State Land Department's rules. She explained that the first step was the development of a conceptual land use plan; the second was developing a General Plan amendment;the third was a pre-annexation and development agreement with the State, including zoning terms; and the fourth was zoning passed by the Town within 30 days of the annexation agreement. She commented on the titte lengthy process this would entail and estimated it would take one and a half to two years to accomplish. She stated that if they wanted to proceed with annexation, it would be important to keep it withdrawn from auction. Ms. Smith reported that additional testimony was received from Ed Fox who was Chairman of the statewide committee to revise the State constitution and said a ballot measure was expected to be placed on the ballot of the November 2004 election. He advised that although he was not in a position at this time to assist them, he possibly could provide some assistance in the future if the Town managed to keep the process going. She added that Gene Baker of the Committee reported on the difference between zoning at the County and Town levels and staff provided excellent information through their annexation threshold analysis, which included a density analysis showing how many homes could be built under current zoning regulations and what the resulting population would be. Ms. Smith noted that the Committee was also asked to examine potential open space and park/trail sites, and said Mark Mayer with the Parks & Recreation Department performed some extensive work and developed an excellent proposal that included a total of 1,280 acres. She referred to a colored rendering of the proposal and explained the details to the Council and audience. She added that Tom Ward also identified 500 acres of washes and other areas that would necessarily remain open space because they could not be built upon. She noted that the annexation analysis also provided them with information from the Fire Department, law enforcement, the School District, the Sanitary District,Public Works,Chaparral Water and an annexation summary of revenues versus expenditures. Ms. Smith referred to a chart depicting one-time revenues and expenditures and noted that Scenario 1 would be 693 units with one-time revenue of approximately $8,863,695 (based on houses that would sell for approximately $355,000). She added that expenditures for park development for a five-acre park would be $500,000 so there would be a one-time surplus of approximately $8,183,695. She said that it would be annualized over ten years. She noted that Scenarios 2 and 3 expanded upon those figures with Scenario 2 reflecting 2,231 units and Scenario 3 having 3,301 units. E:\BBender\Documents\Current Minutes 2003\10-02-03 Regular and Executive Session.doc Page 5 of 36 Ms. Smith also discussed on-going revenues and expenditures and informed the Council that annual revenues included State-shared revenue in the amount of$449,480 based on 693 units. She added that local sales tax was estimated at$54,090 for a total of on going annual revenue of$503,570. She noted that the annual expenditures for parks, based on the smaller neighborhood park, would be $46,425; law enforcement $100,684, and Public Works/Engineering/Streets $200,000 for a total on-going annual expenditure of$347,109, with an on-going annual surplus total of$156,461. She emphasized that revenues were not expected to be received for at least five years after construction. She pointed out that the figures reflected in the analysis should be considered estimates and the actual costs or revenues may ultimately be more or less than what is stated in the report. Ms. Smith reported that the Committee also received additional input in addition to a call to the public following each of their five (5)committee meetings. She noted that they held a public meeting on the evening of September 30th in order to allow additional citizens an opportunity to speak. She added that the meeting was well attended and 12 people spoke, 9 in favor of preservation and 3 against due to the Town's financial condition. Ms. Smith said she would like to preface the Committee's recommendation and stated the opinion that it was appropriate to comment that the land under question was appraised at nearly $32 million more two years ago. She reiterated that appraisals were only good for six months so the land would have to be reappraised no matter what happened. She added that due to the growing scarcity of land in the greater Phoenix area, land values had been skyrocketing. She added that when State land had recently gone to auction the bid prices had been double the appraised value. She said that the Committee was also aware of the Town's financial circumstances and limited bonding capacity. She explained that for those who did not understand why the Committee did not focus more on how the Town could have acquired the land as open space,that was the answer. Ms. Smith stated that following extensive deliberation, the Committee made the following recommendations regarding the 1,278 acres of State Trust Land adjacent to the Town of Fountain Hills: 1. The Committee recommends that the State Land Department be contacted as soon as possible to begin work on a land-use plan that will combine open space preservation, and parks and trails with a good development plan that will be of the utmost benefit to the community. She stressed the importance of planning for development and conservation at the same time. She noted that State Land Commissioner Winkleman has indicated in the press that he favors working with the Town of Fountain Hills on this matter. That the Town Council appoint a five-member committee to work with the State Land Department on a development plan. She added that the committee would work with the Land Department and any developer who purchases the land and report to the Council and the Town on a regular basis. The Committee agrees on the desirability of public parks, trails and open space in the State lands and recommends that the areas defined by Mark Mayer be part of the development plan. She added that if there is development, to have them provided by the developer as an enhancement to the development as well as an asset to the Town. 2. That the Town immediately apply for annexation and stated the opinion that the benefits of annexation appear to outweigh the burdens. She said that annexation will give the Town income from development through building permits and impact fees and will also provide bargaining power for the Town in working with the developer on cooperative planning and eliminating some of the possible negative effects of development. She stated that since the application process under the State Land Department takes time, and there are rumors of developers ready to bid on these lands, the Committee further asks that the Town requests that the land be withheld from auction until the planning process is complete. She added that if it is determined that the application for annexation will not result in the land being withheld from auction during the annexation process, then the Council may wish to request, prior to the expiration of the withdrawal order, an extension of time. She noted that since a demonstration of significant progress is required with a request for an extension of time, she stated that the Council might also wish to consider a small bond measure to purchase approximately 30 acres of land contiguous to the new middle school for a community park as a way of demonstrating significant progress. E:\BBender\Documents\Current Minutes 2003\10-02-03 Regular and Executive Session.doc Page 6 of 36 Ms. Smith emphasized that the Council should take any steps necessary to show significant progress in order to request an extension of time. Mayor Nichols thanked Ms. Smith for her report and said that he appreciated the time that she and her Committee had spent in order to develop their recommendations. Councilwoman Nicola asked Ms. Smith whether any precedent existed for requesting that the State Land Department delay auction of the property until the planning process was complete. Ms. Smith responded that she did not know but the Committee felt that if they didn't proceed in that manner that they were going to lose their opportunity to set their goals before the land goes up for development. Mr. Pickering advised that it was up to the State Land Commissioner whether or not the Town was provided the time for planning. He said that initial indications from discussions with the State indicated that they were willing to work with the Town. He added, however, that they had not specifically talked about annexation but they indicated that they would give the Town and the State time to put together a land use plan. He reiterated that the decision would come from the State Land Commissioner. Councilwoman Nicola said that since the recommendation included partial preservation, a portion to be preserved, was it possible under that aspect to apply for an extension of the preservation status or did the Town need to indicate that they intended to preserve all of the land to apply for this extension. Ms. Smith commented that Ms. Moodey indicated that that there was no limited limit and so partial preservation would be appropriate. Town Attorney Andrew McGuire responded that the second half of that question that had not yet been answered by the State Land Department was preservation or significant progress on purchasing a smaller portion was going to in 460, any way bind a larger piece. He stated the opinion that Ms. Moodey had not given any indication of that buy and added that it would be likely that it would. Mayor Nichols referred to the data and the three different scenarios that were reflected, one for 693 units, another for 2,231 units and a third for 3,301 units. He asked whether the Committee had developed a projection on the number of people and the size of the lots on which they would be building. Ms. Smith responded that staff did come up with those projections. Mr. Pickering stated that the population for scenario number one (693 units) was 1,600 and noted that it would be one home per acre. The population figures for second scenario (2,231 units) was 5,100 and that the density level would be 5.4 units per acre as well as 1.2 units per acre, a mixed zoning. He reported that scenario three (3,301 units) would result in the addition of 7,600 people with a density mix of R1-6, which was a little over 7 units per acre and R-1-18 which was two units per acre. He said that scenario number two was typical for Fountain Hills. Vice Mayor Melendez stated that this was only based on what the Town deemed to be land that could be developed, not the whole piece and Mr. Pickering concurred with that statement. Mr. Pickering added that because of the Town's existing ordinances, if it were under the Town's jurisdiction, the ordinances having to do with washes, cut and fill ratios and things such as that which reduce the amount of acres that could be developed would result in 500 acres automatically becoming open space. Vice Mayor Melendez said that the other scenarios would be higher densities that the Town might allow if they were pursuing annexation and trying to raise the value of the land to entice the State Trust Land Commission to allow the Town to annex it. Mr. Pickering commented that whoever developed the land would also desire that as well. Councilman Kavanagh said that it was his understanding that if the land was not developed according to the Town's plans that the State would nevertheless be required to develop it by the present jurisdiction, which was the E:\BBender\Documents\Current Minutes 2003\10-02-03 Regular and Executive Session.doc Page 7 of 36 County, and which also had a hillside protection ordinance. He added that even in the worst-case scenario certain protections would exist. Mr. Pickering agreed that the County did have hillside protection ordinances in place and although they were not as stringent as the Town's,they were fairly close. Councilwoman Ralphe pointed out that the County did not have a wash preservation ordinance and said that they did not know how the County's rules and regulations would affect the huge washes if the land were developed. Councilwoman Nicola referred to the chart depicting annual expenditures and said it struck her as unusual that the amount for on-going Public Works engineering of streets was the same across the board ($200,000) although with the different scenarios there would be different needs, such as increased traffic and higher densities. Mr. Pickering responded that most of that cost was wash maintenance and no matter how many homes were talked about, $110,000 per year would be wash maintenance. He added that they also assumed that they would have the same number of streets regardless of the number of units allowed per acre. He agreed that there might be a slight upgrade for maintenance because of more cars, but said that they looked at the worst-case scenario in the lower density scenarios just to be on the safe side. Councilwoman Ralphe, speaking to Mr. Pickering, said that many people were aware of the fact that studies had been conducted across the country relative to municipal costs and benefits of developing land. She added that in many cases the studies had shown that if a large piece of property were developed, the cost to the Town, which meant the cost to the people, in terms of needed infrastructure and services,outweighed any of the tax benefits. She noted that citizens paid more for the new development than the Town and the citizens would get back. She said that the Town generated a report that said "we were going to make a lot of money here" and she asked for help in understanding how this would occur. Mr. Pickering responded that Councilwoman Ralphe was absolutely correct and stated that all of the studies that he had conducted in the past typically stated that residential development did not pay for itself. He added, however, that because of the Town's impact fees and development fees, the developments now paid for themselves and that was the whole theory behind development fees. He said that as a result of those fees the existing residents did not have to pay for the new residents and the demands that they were going to put on the Town. In response to a question from Councilman Kavanagh, Mr. Pickering explained that they used for a construction sales tax purposes, a home valued at$350,000 as a typical home on which sales tax would be charged. He clarified that the figure was actually $335,300 and noted that this was the average value of the homes that they were assuming would be built. He noted that this covered only the cost of the building and not the land itself. Councilman Kavanagh commented that the homes in this area, under any of the three scenarios, were going to be above the median price of the existing Fountain Hills homes. Mr. Pickering said that this statement was probably a fair assumption to make especially in view of recent developments such as Fire Rock and Eagle Mountain. He emphasized that they tried to be very conservative. Councilman Kavanagh stated that the point he was trying to make was if these houses followed the trend and they were considerably more expensive, then in addition to these rather sizeable middle scenario ($27 million income) from the development fees and sales tax, that community would suddenly be paying more than its geographical share of taxes. He emphasized that houses that were worth more paid larger property taxes and this would increase the overall property tax of the Town. He added that houses that cost less would probably see some reduction in property taxes and there would be a shift to the more expensive homes. He questioned whether this would result in a slight decrease of the taxes. Mr. Pickering said he did not believe this would happen because of the extremely small amount of the property tax bill that is the Town's portion. Councilman Kavanagh noted he was speaking in terms of school taxes and other such things. He added that the Town tax was very little but the other taxes would probably experience a shift. He stated that there was more savings in just these initial fees and the operating fees,and there was going to be a tax E:\BBender\Documents\Current Minutes 2003\10-02-03 Regular and Executive Session.doc Page 8 of 36 savings for the entire community in other areas. He commented that the School District also pointed out that they project excess capacity that was wasted space and this development would also create a better relationship with the schools, which would also provide better benefit for the dollars. r Councilwoman Nicola noted the on-going revenues/local sales tax under scenario number one and said that low density was $54,000, local sales tax for the middle scenario was $174,000 and scenario three, the high density proposal, projected $257,000. She noted that the figures related only to the sales tax and, in her opinion, represented considerable business for the Town's service industries, small businesses, and food and beverage establishments and was something that the Town's economy might need. Councilman Archambault noted that Ms. Smith was charged with bringing this decision before the Council this evening but questioned whether the Committee looked at the timeframe if the Council did not come to a conclusion tonight. Ms. Smith responded that the purpose of the annexation scenario was to indicate that it would be a one and a half to two-year process to develop those plans. She added that if they needed to request an extension of time, that decision(one to three years)would be made by the State Land Department. Councilman Archambault said if they could not come to a conclusion tonight, what type of time constraints was the Council under. He added that he kept hearing that October 27th was the "drop dead date" and asked if the Committee looked at or discussed with any of the representatives about time constraints. Ms. Smith reported that several members of the Committee, before it was even formed and they had any idea there would be a Committee, her group, the McDowell Park Association was very much involved in wanting to preserve this land. She added that different people had independently called Lillian Moodey and she essentially said, "Show us some money or don't bother me." She stated that she also said that October 27th was too late for her because she needed time to call a public hearing and advertise it. She added that hopefully they would be a little lenient with the Town because they knew now after she attended their meeting that was well attended that the Town was seriously interested in doing whatever it could do. She noted that Ms. Moodey informed her that she had to advertise the public hearing and had to have money in her budget to pay for it but did not state exactly how much time was needed. Vice Mayor Melendez commented that time was not on their side and emphasized the importance of making significant progress. He said that he wrote a letter to the Mayor and Council last week asking that they personally meet, as soon as possible, with the State Land Department, the County Supervisor, and the Maricopa County Treasurer's office. He stated that based on the importance of this issue and the limited timeframe, he did not want to deal through e-mails or letters. He expressed the opinion that the Mayor and Council, as responsible public officials, must prove that the Town meant what it is saying, that there are many interested community members, both pro and con. He added that he had already scheduled a meeting with the Maricopa County Board of Supervisors during the Mayor's absence last week and said that as he wrote in his memo to the Council, anyone who would like to join him and the Mayor at the meeting was welcome to do so. He noted that the Town Attorney had been instructed to post the meeting in the event a quorum was achieved. Vice Mayor Melendez stressed the importance of not wasting any more time and finding out how all of these entities felt and noted that the County Supervisors oversee zoning. He encouraged members of the Council to attend the meeting and asked for their support. Councilwoman Stevens stated that she had not received the memo referred to by the Vice Mayor but agreed that time was not on their side if they were going for an extension. She added that if they were pursuing annexation, quite a bit of time was available. She thanked Ms. Smith and the Committee for their time and effort. She commented on the fact that the direction the Committee was going in was not a preservation direction and asked if the Committee was not really interested in preservation per se, were interested in having the land developed for a number of reasons, or if they didn't want to head in that direction simply because they did not believe that the money existed to pursue that. She said it would have been good to hold a joint meeting so that she could have Leasked each member of the Committee individually that question. She encouraged the members to contact her if they would like to express their personal views on the matter. E:\BBender\Documents\Current Minutes 2003\10-02-03 Regular and Executive Session.doc Page 9 of 36 Ms. Smith expressed the opinion that the direction that was given to the Committee by the Council didn't really state that. She added, however, that she would have very much liked to pursue that but the Committee was aware of the cost of that land and the Town's financial situation. She said that was why they were recommending annexation. She noted that they discussed the fact that purchasing land that may be taken over by developers was a very foolish way to spend the Town's money and therefore the Committee was recommending that if the Town could not be granted some time under the annexation mode, that they ask for an extension, which would mean offering to purchase some of the land. She pointed out that that was the only way they would accept the fact that the Town is serious in their pursuit. She noted that an extension of time only applied to a potential purchase. Councilwoman Ralphe also thanked the Committee for all of their hard work. She indicated that she wanted to pursue the line of discussion started by Councilwoman Stevens and asked why more emphasis was not being placed on buying and preserving the land. She said that she had heard the statement "the Town doesn't have the money for that"and she stated, "says who?" She expressed the opinion that if the people had a dream, they could prioritize and make the dream happen. She added that if the Council wanted to help citizens make this or any other dream possible, they could do it. She emphasized that it was simply a matter of prioritization and commitment. She commented that when she was first elected to the Council she thought of State Trust Land as a preservation issue but said that she now realized that there was going to be development on a significant portion of that land and therefore their job to some extent was going to be wise development. She stressed the fact that the possibility of purchasing and preserving a small portion the land still existed. Councilman Archambault commented on the fact that approximately one year ago, the Council expended extensive effort to find a way to balance the Town's 33% deficit. He said that they met in an unprecedented marathon of meetings to solve the deficit and continued to search for solutions and meet the demanding timeline to solve this problem. He stated that their efforts to calm the community's fears and find a solution greatly impacted the lives of the Council. He noted that last year was comprised of unprecedented challenges anywhere in the State and said he watched as people in the Town attacked one another through language and actions. He added that he and other members of the Council were the object of personal attacks as well. He quoted "it was the best of times, it was the worst of times" and said it was a time of community triumph and community division. He explained that he was making these comments now because citizens often waited until it was too late to demand that their representatives take action. He stated the opinion that immediate action was not the phrase of the day despite what others might say. He noted that Councilman Kavanagh, in an article recently published in The Times, raised some legitimate concerns. He added that his article brought out so clearly not whether or not the Town should purchase this piece and develop that piece although he eloquently pointed this out with several scenarios. He stated that Councilman Kavanagh alluded to the fact that it was what they did not know about the future and what it would bring. He said that the reason they were here tonight was there was fear of the unknown and added that this was the message that they as a Town faced. He said if they learned to face their fears, which he was sure they would do tonight, they then acquired the knowledge to forge their future and convictions of the outcome. He noted that these times required that they kept their heads about them while others were losing theirs. He stated that the sky was not falling. Councilman Archambault said that one example of what he was talking about was a citizen's plea to use the development fees. He added that although some people might think that this was a logical answer,they overlooked the value of taking ownership. He stated that only when each and every one of them had personally vested as the Council has during the past year, would they take ownership. He expressed the opinion that they must make decisions based on lessons learned in the past and added that although he did not oppose a bond issue should the citizens decide that was the direction they would like to go, and it passed, he would oppose spending more than approved even if additional funds were available. He said they must not doubt that a man holding a cat by its tail was soon going to learn a lesson he was not going to learn anywhere else. He added that he trusted this Council would take this lesson from the road thus traveled. He said that the key word to keep in mind when offering suggestions was "ownership" and stressed the importance of forging a path of resolve in which they could all take ownership. He noted that they must consider the melting pot of problems facing the Town, such as what happens to the citizens who were trying to form a Fire District if they moved towards annexation; how do they approach annexation, purchase all or some; would State mandated bonding capacities limit the Town; could they lease the land; could citizens solicit donations as Cave Creek did and apply for matching funds; what affect would the E:\BBender\Documents\Current Minutes 2003\10-02-03 Regular and Executive Session.doc Page 10 of 36 decisions have on the businesses supplying 58% of the funds that operated the Town and could the General Plan be revised and put before the voters on time, since that was a requirement if they pursue annexation. Councilman Archambault stated that the above represented questions that must be answered this evening and asked Niw that they take them into consideration. He also questioned whether the State Land Department would work with the Town and commented on costs associated with obtaining an accurate boundary survey in preparation for annexation should they move in that direction. He added that issues such as amenities that were demanded by the citizens of the Town would challenge everyone present to try to design a resolution in which they could all take ownership. He said he could only assure them that as the Council they had the calm conviction to forge the Town's future to its outcome. He encouraged everyone present to keep their minds open and their tempers calm. Mayor Nichols asked if there were any requests to speak on this item and Town Clerk Bev Bender said that Edwin Kehe has requested five minutes. Edwin Kehe, 16620 N. Agate Knoll Place, said that he would like to provide some information contained in various documents that might help the Council in their decision-making process. He referred to a copy of the statutes governing the Arizona Preserve Initiative (API) and defined conservation as the protection of the natural assets of Trust Lands for the long term benefit of the land; the Trust beneficiaries, lessees, the public and unique resources that each area contained such as open space, scenic beauty, protected plants, wildlife, archeology, and multiple use values. Mr. Kehe turned to another section, which referred to the Covenant and read that the terms of the sale (meaning sale under the API) might include the condition that the conveyance of title was subject to a covenant that ran with the land and that the land should be used only for purposes that were consistent with the conservation of specifically named resources or public values. He noted that that was sometimes called a patent restriction and an example of that was as follows: Upon buyers material failure to abide by these conditions (conservation and covenants), the Department may enter upon the property and terminate the buyers' title in the property. He added that the conditions and covenants there upon cease and title shall revert to the Department in the same trust from which it was conveyed. Mr. Kehe said that regarding the extension request, the document stated that the Commissioner should prescribe a termination date of at least three but not more than five years after which a lease or sale might proceed. He added that within one year before the expiration of the withdrawal period,the Commissioner,after a public hearing,might extend the withdrawal period for not more than one additional three-year period if significant progress was evident in the effort toward acquiring the land. He explained that this meant lease or sale. Mr. Kehe also referred to a manual on Growing Smarter: State Trust Land Acquisition Program and noted that this was again involved with the API. He read from a section on Grants and said that grant recipients shall convey a conservation easement to State Parks in exchange for Growing Smarter grant monies and no more than 10% of the acquired land up to the limit of 20 acres total may be eligible for alteration or development. He added that all such proposed work must clearly be explained in the application and no changes may be made to a parcel that would seriously or negatively affect its conservation and open space values. Mr. Kehe also read from the section pertaining to Successors and stated that the covenants, terms, conditions and restrictions of this easement shall be binding upon and inure to the benefit of the parties hereto and their respective personal representatives, heirs, successors and shall continue as a servitude running in perpetuity. He referred to a section on Reversion to the State and noted that these contexts shall accompany the title to the land granting such access and providing for reversion to this State of any interest in the property acquired with funds granted under this program if the grant recipient or subsequent owners fail to comply with the terms of the easement. Mr. Kehe stated that a request to delay a parcel's re-entry into the commercial market based upon a petitioner's attempt to annex is not likely to succeed. He expressed the opinion that the parallel was a snowball in Haiti. He added that the purpose of the API was to conserve trust land without harming the mission of the trust. He said there had been some suggestions made that a developer could buy this under the API and then get the designation changed at some time. He emphasized that this could not happen and questioned why a developer would want to E:\BBender\Documents\Current Minutes 2003\10-02-03 Regular and Executive Session.doc Page 11 of 36 buy the land under conditions where he could not profit. He said that it was said earlier that studies had consistently shown that residential development costs the public more money than it paid in taxes and charges. He suggested that lack of information, misunderstanding, and misinformation were not a good basis for making a decision and asked the Council to pause and give consideration to some of the facts that he had brought forward. He thanked the Council for the opportunity to present his remarks. Michael Maggio, 16213 N. Boulder Drive, stated that he was speaking on the side of preservation. He pointed out that this issue was different than most of the issues that the Council faced and said that they had the opportunity at this time to make history, not just let it go by or just be a part of it as it goes by, but to actually make history. He noted that a few years back the Town had another Council that made history and added that a few members might remember the meeting they had in the school about the Mountain Preservation and said it was a lot different than this meeting. He advised that the meeting was packed with people and police protection was needed. He added that the meeting was "charged" and everyone knew there was something different about it. He stated that that Council was willing to jump into the turmoil and the uncertain waters of private property rights and litigation and risked legal threats and the uncertain outcome and their chances for re-election to make history. He referred to the mountains and noted that Scottsdale saved those on the west and Fountain Hills did the best it could and saved and tailored the development of them on the east. He stated the opinion that this represented unique history and added that he was proud of the Town and proud to tell that story to people. He advised that right now the State Land Department could only hold up Phoenix as an example of a governmental entity that has successfully used the API and successfully obtained Growing Smarter funds. Mr. Maggio commented that Fountain Hills should also have that distinction and reiterated that the Council had an opportunity to make history. Lowell Janson, 17324 E. Zaharias Drive, said he owns both residential and commercial property and was a local businessman. He thanked all of the members of the Ad Hoc Committee and staff for their efforts on this project. He strongly urged the Council and the Town to approach the State Land issue with a pro, restrained preservation attitude. He explained that by restrained preservation he meant a balanced and viable mix of open space, trails, parks and a moderate amount of controlled residential development. He added that he concurred with most of the recommendations and conclusions at which the Ad Hoc Committee arrived. He also stated that he was totally convinced that the restrained preservation as defined above was the Town's final and best hope for obtaining a Noir viable,vibrant and self-contained Town that would continue to be a great place to live and operate a business with a quality of life that everyone would continue to enjoy. He added that if development was not a part of the human equation,this discussion would be rendered moot and they, as a Town would not exist. Nancy Land, 15833 E. Bursage Drive, asked Ms. Smith if she stated that the Town could not annex and also apply for an extension at the same time. Ms. Smith stated the opinion that they could do so. Ms. Land asked Town Manager Tim Pickering why they did not see revenues for five years if they allowed development to occur. Town Attorney Andrew McGuire responded that he believed the significant lag was in the population projections and the Town's share of State Shared Revenues. He explained that the Town would not "catch up" until the next Census and they occurred every five years. He added that the period might be shorter than that but five years was a conservative estimate of how long it might take to catch up. Mr. Pickering pointed out that it would be at least five years before the first house was ever built. He explained that annexation and planning was going to require at least 1.5 to 2 years, an open bid would have to take place and that was a nine-month process and then by the time the developer planned it and brought it forward and it went through the review/approval process, it would take at least five years and maybe more or a little bit less but five years was a good estimate. He pointed out that the only expense the Town would be responsible for during that time would be costs associated with annexation, the planning portion of it, and said they would probably have to hire a consultant to go through the process, but as far as infrastructure, the Town would not have to expend any monies during that time period. Ms. Land stated that it would be good for the Town to know how much money would be expended during this period while they were pursing their goal. E:\BBender\Documents\Current Minutes 2003\10-02-03 Regular and Executive Session.doc Page 12 of 36 Bob Deppe, 16247 N. Boulder Drive, Chairman of the Fountain Hills Citizens for Preservation, said that over the last month his group had spoken with hundreds of people and except for one or two they were all for preservation of one kind or another. He noted that his group made a presentation at the last Council meeting that made sense and was economically feasible and added that all they asked was that the Council give the citizens a chance to make a decision in a rational, sensible manner. He emphasized that they needed a three-year extension on the land preservation to protect them from developers who could easily out-bid Fountain Hills on any land purchase if the preservation was allowed to expire. He added the opinion that during the three-year period they might be able to take advantage of pending legislation that would designate a significant portion of the land as permanent preservation and would cost the Town nothing. He added that during this period, the Town could also poll the citizens in an effort to obtain an accurate reading of what they really wanted and how much they were willing to pay for it. Mr. Deppe stated that if during the three-year period it was determined that preservation was not the answer, they could safely annex the land without developer interference and work with the State Land Department on open space issues. He expressed the opinion that these issues should have been addressed over the last five years but for one reason or another they had not been. He added that they had the opportunity to rectify their mistakes and in doing so, the Town Council could feel confident that their decisions reflected the will of the people. He stated that this is a "win-win" situation for both sides. He also reminded the Council that based on earlier comments, Cave Creek just purchased land under preservation status ($31.8 thousand per acre) and noted that if the Town purchased land under preservation status it still went to auction and the Town could be outbid. He added, however, that whoever won the bid must preserve the land, so let them win it and the Town would not have to spend any money. He stated that as of tomorrow, the Town had 16 working days to submit a proposal to the State Land Commission to preserve the land and if they waited until the next Council meeting to decide, there would only be six days. He pointed out that the last time the Town did this, they put together a 40-page proposal and emphasized that it took time to put such a document together and urged the Council to take action this evening. Councilman Kavanagh asked Ms. Smith to confirm that if land was under preservation status, it could still go on the market. Ms. Smith responded that the land could go on the market but if it was under preservation status, it could only be sold for conservation. She explained that no one bids against them because why bid against someone else who wants to conserve the land. She explained that was why it was protected currently because it had been withdrawn for preservation status now and no one had been able to bid on it during this period of time. Councilman Kavanagh said that this appeared to be in conflict with the State Constitution mandate that the State Trust Land Department get the best deal, within reason, for education. Ms. Smith responded that that was because of the Arizona Preserve Initiative (API) that specifically wanted to help preserve land as open space and this was why they had this possibility. She added that unfortunately a number of organizations wanted to preserve the land but they had been unable to come up with the money. John McNeill, 14508 N. Creosote, said he would like to urge the Council, if they did nothing else, to file for the extension before the October 27th deadline. He noted that the Ad Hoc Committee had stated that the purchase of the 30-acre park parcel should be pursued and said he believed the Town had the ability to do that without the necessity of a bond issue. He stated the opinion that the park was not a lot of acreage and did not cost a lot of money and added that money had been dedicated for preservation and was available. He noted that discussion had - occurred relative to the fact that the property was the subject of an appraisal of over $30 million and said that was true. He added that the Town itself had an appraisal not long before the State appraisal that came in substantially lower, less than $22 million. He commented that all the appraisals are "stale" now and another appraisal would need to take place. Mr. McNeill stated that at the Committee meeting the other night, Committeemember Thompson suggested putting up for a vote a bond issue of $20 million to purchase the entire parcel. He said that he would like to ask the Council to consider making that amount $10 million and try to purchase the western half. He added that it was his understanding that the Town would have over $800,000 in open space impact fees by the end of this Fiscal Year and would have collected over $1.3 million in surplus conservation sales tax. He reported that today's municipal bond rates were 3.32% for ten-year bonds and 4.30% for twenty-year bonds. He added that if the Town took $1 million of its over $2 million in impact fees and excess sales tax for preservation and made a 10% down payment E:\BBender\Documents\Current Minutes 2003\10-02-03 Regular and Executive Session.doc Page 13 of 36 on the western half, the Town would only have to issue bonds for $9 million. He noted that at today's rate a 10- year issue would cost a little over a million a year and a twenty year issue would cost $671,000 a year or not much more than the current $500,000 a year surplus the Town was realizing from the Preservation Sales Tax that was supposed to be dedicated for that purpose. He reported that a ten-year issue would equal a cost of about 5% of the Town's annual budget and a twenty-year bond would be 3% unless the Town's revenues and budget grew. He added that he hoped the Council did the right thing and preserved at least a substantial portion of the Trust Land, preferably the entire tract. He stated the opinion that Fountain Hills could do it. Robert Thompson, 16126 E. Glenview Drive,thanked the Council for allowing him to serve as a member of the Ad Hoc Committee and for their attendance at the Committee's meetings. He emphasized that time was of the essence and agreed that the Council should immediately apply for an extension. He added that on the other hand in order to obtain the extension the Town must show substantial progress. He said that he was not at all sure that the Town would be fortunate enough to obtain an extension in excess of one year and said that the Town should pursue all of the other avenues contained in the Committee's report. He added that the figures presented by Mr. Pickering relative to the cost of a 20-year bond issue for $20 million were very interesting and noted that on a $300,000 typical Fountain Hills home it was not the $600 to $800 a year that they had been hearing about, but rather plus or minus$250 per year per home. Mr. Thompson explained that the idea behind the $20 million figure previously referred to by Mr. McNeill and which he advocated was he had no hope that with $20 million of Town money and $20 million from matching funds from the State that the Town would be able to acquire the entire parcel. He said he suspected that the value of the property was substantially in excess of the $31 million because one of the other things they learned at the Committee meetings was that this land was not particularly unique in the sense of un-developable, it was virtually identical to most of the rest of Fountain Hills. He stated the opinion that this probably meant that they were not looking at the development personally he had hoped for, a couple of more Fire Rocks, but probably the typical density that existed in the rest of Fountain Hills. He encouraged the members of the Council to immediately pursue a small ($2.5 million) bond issue to acquire the 30 acres for the community park adjacent to the middle school. He added that although they did not necessarily have to move forward with it, it would demonstrate substantial compliance that must be shown in order to progress and hopefully obtain the land at a later date from a developer, which he felt would occur. He also urged the Council, in spite of the comments that had been made this evening and continued to be made, not to use existing dedicated funds but give the people the opportunity to vote on whatever was necessary to achieve preservation of some of the parcel. Mayor Nichols thanked all of the speakers for their comments. Vice Mayor Melendez referred to a statement made by Mr. Thompson relative to moving forward with a $2.5 million bond issue and requested that Mr. Pickering explain the process the Town would follow in order to proceed in this manner as well as the time it would take. Mr. Pickering responded that the first thing that would have to happen within the next 16 days was the Town would apply for the extension because if the extension was not granted, when the land went up for sale it would go to the open market and the cost would be much higher and the land would not be preserved. He added that the next step would be to go for a vote of the people on the bond issue. Mr. McGuire reported that the earliest date a bond issue could be placed on a ballot would be at the March or May 2004 elections. Mr. Pickering said that assuming the extension was granted and the bond issue passed, the Town would have to contact the State and purchase the land. He added that in between that time they would have to have an appraisal of the land done so that they have an idea of the amount of money the State would accept for the land. He noted that the State would not accept less than the appraised value of the land. Councilman Kavanagh MOVED that staff be directed to take all necessary actions to annex the State Trust Land and offer to assist the State in the creation of a development plan which takes into account the recommendations of the Town's Ad Hoc Committee that the plan contain open space, park and trail elements in an effort to arrive at a final plan which was also consistent with the Arizona Constitution's mandate that the State Land Trust Department E:\BBender\Documents\Current Minutes 2003\10-02-03 Regular and Executive Session.doc Page 14 of 36 sufficiently develop the land to benefit Arizona schools and further, that the State be asked not to place the land out to bid until this process was concluded. 460 Councilwoman Stevens SECONDED the motion for discussion purposes. Councilwoman Ralphe commented that they were not at a crossroad this evening as far as the State Trust Land, but rather on a narrow road and there was only one way to go. She added that there might be other directions they could take as time went by but right here and right now, they were facing an October 27th deadline and it had only to do with preservation options and nothing to do with annexation. She suggested that they put aside for another meeting discussion of annexation and development issues. She said she concurred with Councilman Kavanagh's comment that the issues of annexation and development were vital to the future of the Town but they had time on their hands to look at those complex issues at a future meeting. She added that their mandate this evening was anything that was tied to the October 27th deadline and that basically would be an application for an extension of the conservation status. Councilman Kavanagh stated that the motion did not preclude requesting an extension of preservation status. He noted that they could request annexation and an extension of preservation status. He added the opinion that this made sense because whether you want to develop it or preserve it, it had to be annexed to the Town. He said that annexation was perhaps the only issue that everybody would agree on and time was very critical. He emphasized that this in no way would stop a second motion after the Council dealt with the first issue that would relate to extending the preservation status. He added the opinion that it was best to handle each issue separately. Mayor Nichols concurred with Councilman Kavanagh's comment that there would most likely be two or three motions made regarding this issue and handling them separately made the most sense. Councilman Archambault said he wondered what kind of a message were they going to send to the State Land Trust Department and asked Ms. Smith whether they were telling the Town that they could do both. Ms. Smith responded that she believed the Town could do both and stated the opinion that it was important to pursue both so that they would have something in the end rather than allowing the land to be put up for auction. She pointed out that the Stand Land Commissioner had stated publicly that he wanted to help Fountain Hills work on a plan to both preserve open space and to have it developed. She added that this did not preclude at the same time asking for an extension of time so that the Town could pursue another avenue. She noted that Ed Fox recommended that path to her after the meeting and said that would be the best way to proceed. She commented that she had no guarantees as to what their response was going to be, but she and the members of the Committee believed it was worth pursuing both. Councilwoman Stevens stated that she was probably not going to support any motions tonight other than one for a continuance, which she would make later on in the meeting. She expressed the opinion that time was not that critical that she should make a decision this evening on a proposal that she had just received. She added that she has not read the minutes of the last two meetings and there was a lot of information in them and she needed time to review them and analyze this complex issue. She asked if they decided to approve it,did they do so through a bond issue or through Town money and did they annex or not annex. She noted the complexity of these issues and the necessity of more time. She added that she appreciated the fact that the Conunittee worked their way quickly to a recommendation for the Council because she believed that this was a good time for discussing all of those options. She stated that she was not necessarily convinced that annexation was the best way to proceed; she had not had the time to thoroughly review this. Councilwoman Stevens said that right now she would like to discuss October 27th and money and noted that as far as a bond issue, the Town had already tried that for a different issue and the citizens told them no. She stated the opinion that people were not necessarily interested in proceeding in this manner but she would consider that option as well, particularly for a smaller amount. She asked what funds might be available from any other open space monies if they decided not to proceed with a bond issue and when would the money be needed. E:\BBender\Documents\Current Minutes 2003\10-02-03 Regular and Executive Session.doc Page 15 of 36 Mr. Pickering responded that at the end of this Fiscal Year, staff was projecting that the Town would have approximately $800,000 in open space development fees and approximately $1.2 million in sales tax that was for open space. He confirmed that using those funds would completely "tap them out." Councilwoman Stevens asked about Parks monies from their development fees and Mr. Pickering reported that at the end of the Fiscal Year there would only be a half million dollars available. He said he believed the money would be needed at the time the Town applies. Councilwoman Stevens asked if they could use the monies that were in those accounts and Mr. Pickering advised that no monies had been budgeted to spend on that so they would have to cut from other areas of the budget. Councilwoman Stevens said she thought that the application fee was a very small amount of money and that at the time of auction they had to bring forth the funds. Ms. Smith commented that you had to demonstrate that the Town had the funds. Councilwoman Stevens asked if the Council budgeted to spend this money, when would it be available. Mr. Pickering stated that the funds would be available with the passage of a new budget. Councilman Archambault asked the Council to remind themselves that they were working on a five-year plan and if one was already in place, they wouldn't be here today. He asked Mr. Pickering to confirm that previous discussions took place earmarking the impact fees for items like trailhead improvements. Mr. Pickering responded that he was correct. Councilman Archambault said that they had to figure out what amenities they wanted to do without for this immediate problem. He added that they had ideas about uses for the money that they had. He commented on the 3/10ths of a cent sales tax that was dedicated to the bond issue that they used to finish up the purchase of the mountains and asked Mr. McGuire if they had the authority to take any excess funds from that and move them towards the purchase of a piece of land in the McDowell Mountain Preserve. He added that he believed this was a legal issue because when they passed that tax there was a mandate that went with it listing the different things the money could be used for. Mr. Pickering advised that the ordinance that was adopted by the Council was very open and did not stipulate that, it simply stated that they were increasing their sales tax. He added that the only point made in there was from discussion among the Council at the point that a motion was made to put three cents towards the mountains and one cent towards the downtown. He expressed the opinion that in order to undo that would require a Council motion. He said that the other part of the question was whether or not there were excess funds and reported that there was approximately$200,000 a year in excess funds. Councilman Archambault commented that although they were not legally prohibited from moving any of that money, they did promise that the money was going to go towards paying off the bond issue and so he would be against proceeding in that manner. He cautioned against using any of the reserves because it did not take ownership of anything. Vice Mayor Melendez noted that there was a motion on the floor and he would like clarification of that motion. He said that the motion was made on annexation and then further along said that the extension time could be included. He added that he then heard the Mayor say that they should separate those issues. Councilman Kavanagh responded that there were two ways to extend the time, one was to tell the State that because the Town was pursuing annexation they requested that the State not voluntarily put this piece out to bid until the annexation process was complete. He added that the second way was to request a continuation of the preservation status. He stated that they could do both. Ms. Smith noted that with the preservation status the Town would have to demonstrate that it was able to pay and bring money to the table. Councilwoman Nicola asked Ms. Smith if the Town would have to deposit funds or could they simply show that money has been budgeted in their on-going budget under the sales tax. Ms. Smith responded that you had to E:\BBender\Documents\Current Minutes 2003\10-02-03 Regular and Executive Session.doc Page 16 of 36 demonstrate that the money would be there at the time and it had to be pretty secure at this point because of their history with the Town. Councilwoman Nicola also commented on the fact that the term "substantial progress" had been used and was lbw being carried forward here and stated that that was not what the law says, it said "significant progress." She added that there was a huge difference between the meaning of those two words and said that significant is a judgment call. Councilman Kavanagh asked Mr. McGuire whether the funds could be used in July and could they truly state that this was money the Council could commit when a new Council majority might exist then and not support this action. Mr. McGuire said that Councilman Kavanagh brought up a very important point and noted that the Council could not incur a debt beyond its budget life and so June 30th of this year was as far as the Council could commit money that they had not already budgeted. He pointed out that nothing had been budgeted for this source and that was the reason why bonds were used most often by a current Council because then the money was committed in the current budget cycle in order to move forward. Councilwoman Ralphe suggested that they commit "X" number of dollars for a partial purchase along with an extension and asked Mr. Pickering if they could use reserve funds that he had so skillfully helped them build up. She emphasized that the intent would not be to deplete them but to use them on a temporary basis until they were able to access legally the $800,000 worth of impact fees and the $1.3 million in preservation sales tax monies that were anticipated to be in place at the end of the year. She asked whether reserve funds were in place for just such a situation. Mr. Pickering responded that the answer to the first question was generally no, the reserves were there because that was what they were, money in the bank, it was not for budgeted expenditures. He explained that if they wanted to do that, they would have to cut the budget somewhere else because the Town was mandated to remain within the budget. He added that the Town couldn't just dip into the reserves because they had not budgeted for that and had said that the money would not be spent this year. He said that the second point, which he believed to be important, was that the sales tax amount was specifically earmarked for the mountains; it was not for open space or preservation. He stated that they would have to change the language that it was originally adopted under and added that this could be done. Mr. McGuire pointed out that bonds had been committed to a portion of that so the change could only affect the surplus,it could never affect the full amount. Councilwoman Ralphe said that she was a member of the Council when they passed the .3% for preservation and it was her recollection that it was specifically for mountain preservation bonding at that time. She added that it was her understanding that preservation was preservation and that they could use some monies left over every single year and they did not need to pay off those bonds. She said she was not suggesting that they cut it so close that they did not have a little cushion to fall back on during a poor sales tax year, but added that she believed they could spend it for other preservation issues. She also suggested that Town staff provide the Council with two or three different scenarios as to just how this could be accomplished financially, whether borrowing from other departments or a small down payment to the State and a commitment to pay the rest later. She asked that they brainstorm and come up with some ideas for the Council to consider. Mr. Pickering responded that if this were the desire of a majority of the Council, staff would be happy to proceed as suggested. Mayor Nichols declared a ten-minute recess at 8:30 p.m. and the meeting reconvened at 8:40 p.m. Mayor Nichols stated that at this point in time there was a motion on the floor, which dealt with annexation that had been seconded and said he would like to move that along. He asked whether anyone had any questions regarding that issue. E:\BBender\Documents\Current Minutes 2003\10-02-03 Regular and Executive Session.doc Page 17 of 36 Councilman Kavanagh said that he would briefly like to explain his reasons for now supporting annexation. He stated that he originally had serious doubts about annexation and feared that the additional population would result in the creation of a new school, which would be financially devastating, feared that the Sanitary District's capacity would be over-burdened and they would have to build new capital including a new treatment plant or an expansion of the current one, was concerned that a new fire station and crew might be needed, and was concerned about the water supply. He said that for those reasons he wrote an article a while ago in which he said he was not sure if annexation was the right way to go and the Council had to look into it, which was one reason why he was happy they had the Committee. He added that he was sure that they could not buy the land and remained sure of that. Councilman Kavanagh explained that the reason he changed his mind about annexation was all of these fears had been allayed. He said that the School District had advised that they had excess capacity; the Sanitary District said "no problem"and if they did have to build a larger treatment plant every dime gets passed on to the new developer; no new fire department was needed; the water supply appeared to be fine and all of his fears went away. He added that approximately $27 million good reasons to develop this land responsibly came into play. He said that he never envisioned receiving $27 million in impact fees and even if that figure was overestimated and the Town only received $20 million, he could live with that figure as well. He commented on all of the things that the Town had been struggling to get and all the things that they thought they lost, all the people they could take care of like the seniors, new parks, a better Boys & Girls Club and said that this could all be well used money. He added that the Town's tax base would increase as a result of very expensive homes and the school tax would also decrease. He pointed out that this issue had drawn the attention of many and he was now convinced that the State wanted to develop this valuable land quickly. He said that the Town must get the annexation paperwork in quickly because the only thing worse than having it developed was to have it developed with no say in it so the density levels were higher than they would be with the Town's intervention and the Town would not receive a dime for it. He stated that for those reasons he believed annexation was reasonable whether you wanted to preserve it or develop it. Councilman Archambault said that he heard several concerns expressed this evening that he believed were legitimate, namely did we have the funds available and what type of funds were they; the importance of additional time; preservation or conservation and the concern that had not been mentioned because the State Land Trust Department was not here, namely that they look for the money. He pointed out that the motion before the Council Ntoir tended to address all four of those concerns. He added that maybe it did not preserve all of the land but it certainly gave the Town control over as much preservation as they thought they could apply to this land and still preserve the funds that the State Trust Land Department might be looking for. He noted that it would take a minimal amount of funds from the Town, although they were going to expend some funds with lawyers and staff time. Mr. Pickering estimated that less than$100,000 would have to be spent. Councilman Archambault stated that he believed he was going to support the motion but what he would like to see was that they move forward with some of the other things. He added that they should cautiously approach this annexation and revise the Town's General Plan, which was a lengthy process. He said that they should move forward in a thoughtful manner, keeping in mind conservation and preservation and preserve and protect the value and integrity of as much of the land as possible so that the State Department would work with the Town. He added that he couldn't believe that they would not grant the Town the time it needed and honor the request to hold this land from auction until they had a chance to get the General Plan amendment into place. Councilwoman Ralphe stated the opinion that the motion had a fatal flaw and said if they asked the State Land Department to begin the annexation process with the Town and then later at this meeting or another meeting real soon, before October 27th, they also asked for an extension of the preservation status, with the small amount of money that the Town had in hand, she believed the State would think that the Town of Fountain Hills wanted to annex the land and develop it. She added that at the same time the Town wanted preservation status with the entire parcel of land extended for three years. She stated the opinion that they would determine that this did not make sense. She said that to vote to annex first might negatively impact their other possibilities; however, if they voted first for the extension and put the money up front, that gave the Town a little money for sure, a little land for sure, an opportunity, especially if new State laws were passed next year to get more land in some sort of creative way and gave them time to plan for annexation of part of the land if that was what they wanted to do. E:\BBender\Documents\Current Minutes 2003\10-02-03 Regular and Executive Session.doc Page 18 of 36 Councilwoman Ralphe summarized by stating that if they went first for the extension and the small amount of money to warrant it, everything else became possible, including annexation. She added that if they went first for annexation,they would probably "blow"everything else. Councilwoman Stevens said she believed she read the timeline for annexation and asked for a clarification. Mr. Pickering explained that the annexation timeline was probably a 1.5 to 2 year process. He noted that they would first have to obtain agreement from the State that they wanted to plan the area with Fountain Hills. He added that the State could do a conceptual plan on their own but the Town would have to get a buy-in from them that they wanted to begin to plan the area with the Town. He said that once they had the conceptual plan and it was mutually agreed upon as being a reasonable land use plan,then the Town would have to put it before the public for a vote on the General Plan amendment, which would take some time. He noted if it passed, the State and the Town would enter into a Development Annexation Agreement (pre-development agreement) and at that time they had to determine what the zoning would be. He added that following that, the issue would come before the Council for adoption of the Development Annexation Agreement (pre-development agreement) and 30 days after that the zoning must be passed or else the entire agreement would be null and void. He explained that the State required this because simply annexing it into Fountain Hills did not add value, but planning and knowing what the zoning would be would add value. In response to a question from Councilwoman Stevens, Mr. Pickering stated that the 60-day timeframe (December and June) that she was thinking of was for the State's selection committee to meet regarding the matching grants. He explained that they only met twice a year and the Committee consisted of the Attorney General, the Governor and the State Commissioner. Councilman Archambault asked Mr. McGuire whether annexation would have any effect on Committee to Save Our Community (CSOC), which is circulating petitions to form a fire district. Mr. McGuire responded that he did not know that it would affect the area as it was described in the petition that the County Board of Supervisors approved last spring. He added that the only real issue that he could think of was the eventuality that the Town's borders and the fire district's borders would not be contiguous. He said he did not believe it would stall, impede or delay their efforts. Councilman Archambault asked Mr.Pickering whether in moving forward with the annexation they could take it so far as to actually have final plats and Mr. Pickering responded no they could not. He further asked whether they could take it so far as to have parcels with zoning on those parcels. Mr. McGuire stated that this would all depend upon what level the State wanted to continue in its ownership. He added that if the State wanted to be the applicant behind the application for zoning a subdivision or anything else, all of that could happen. He explained that they could run an entire zoning case from a pre-annexation development agreement through final plat or preliminary plat and all of those processes ran concurrently so that in one single night they could pass them one right after another and the annexation became final just before the zoning and the remaining dates also fell in place. He reiterated that if the State wanted to be involved, they could take it all the way down to the plat level but he did not know that they would. Councilman Archambault asked whether the Town could take it to the point where they developed it to a preliminary plat and then let them sell it to the developer. He stated the opinion that this would address a lot of citizens' concerns because we could tell them"here's a piece, it's approved for 54 lots and that's all they are going to get." Mr. Pickering expressed the opinion that the State might be hesitant to go that far with it and added that they had told staff that the zoning should be put in place 30 days after the annexation agreement. He added that if they went too far with that, it might hurt the value of the land a little bit too much because the developer might say "there are 54 lots there and I need 56." (4180 Councilman Archambault asked whether they could develop their own special zoning if they had approval from the Land Department for that particular piece. Mr. McGuire responded that it would be what they currently had in their zoning ordinance called a Planned Unit Development (PUD) and added that it was very likely that that zoning E:\BBender\Documents\Current Minutes 2003\10-02-03 Regular and Executive Session.doc Page 19 of 36 category would be utilized on this parcel in any event because it allowed for flexibility over a broad range of zoning categories. Mayor Nichols commented that the Ad Hoc Committee had spent a lot of time researching this issue over the last six to eight weeks and stated the opinion that they had come up with some good recommendations. He added that they had recommended annexation as a key item to be pursued and said that he would support this recommendation. He pointed out that they were dealing with a lot of "what ifs" and said that as a Council they needed to pursue every avenue open to them, whether it was annexation or extension. He said they had to give staff direction to be able to move in the next 16 days in order to ensure that they were doing everything they could to protect either the preservation or the zoning. He added that if the land was going to be purchased by a developer, the Town wanted to make sure that it had some control over it. He stated that he supported the motion. Councilman Kavanagh said he believed it was important to understand what was happening in this State politically and how it affected this situation. He noted that education was under-funded in this State and it was becoming a real problem. He stated that the Governor campaigned on improving education and due to a lack of State funds; she wanted to get more money through the State Trust Lands. He added that the new Director was her appointee and he thought it was fair to say that he was directed to "get some money and get it fast." He commented that he believed they were going to be looking for signs of movement on the Town's part and if they vote against the annexation tonight that would be a sign of stagnation not movement on their part. He added that if they went to them and said we might have a bond issue but the election won't take place until March so we can't commit to anything until then, that too was a sign of stagnation. He stated the opinion that the land was going to be sold by March if they did not start moving now and show some good faith. He added that he believed the best start was to approve the motion and the best signal that they could show was a unanimous vote to bring this land into the fold of Fountain Hills. Councilman Kavanagh said that they should tell the State that the Town wanted the land, wanted it to be nice, wanted to provide services to the people, wanted to add value so it was not a County island and understood their mandate and was willing to be flexible and do it the way that they wanted it to be done. He stated the opinion that some of the preservationists seemed to be adopting a policy that annexation would negatively impact their drive for a bond issue. He added that if they put all of their eggs in one basket, they were going to wind up with nothing in the end. He said the Town would have no control because it did not annex the property and there would be more development than ever and the Town would wind up with nothing. He expressed the opinion that this represented the first positive step the Town could take and he believed everyone should unanimously say to the State "we want to move, we don't want to dawdle,because we know you've got to move." Councilwoman Ralphe stated that she did not favor a bond issue. She added the opinion that what would be accomplished if the motion was passed, was that they could "kiss goodbye" their dream of a park adjacent to the school and a trail alignment leading up into the County park and from there into the Town's mountain preserve. She said it was not that it still was not possible; it was that those dreams under annexation would be at the whim of a whole group of people, including State officials and the developer who eventually bid successfully for that property. She added that if she was a developer, she knew she would be going for a "bottom line" of the most dollars and that bottom line just did not fit with the citizens' goals of a park and a trail. Mayor Nichols asked if he could call the question at this point in time so that the Council could move on to other items and the recommendation. Vice Mayor Melendez asked Mr. Pickering if the Council approved this motion, how soon could this action be brought to the State in order to obtain their reaction as to how to proceed. Mr. Pickering said that tomorrow staff would write a letter or contact the State and advise them of the Town's interest and the Council's decision. He added that they would ask them if they were willing to work with the Town of Fountain Hills as a team to plan the area properly. He said that he did not know how quickly the State would respond but Staff would immediately move on this. Councilwoman Stevens stated that she understood that everyone thought annexation equaled control and perhaps it does, but said she was not sure that that was an area that they really want to control. She commented that she was E:\BBender\Documents\Current Minutes 2003\10-02-03 Regular and Executive Session.doc Page 20 of 36 struggling with this and was not going to support the motion because quite frankly she was not ready to. She said that she kept a file on everything she did as a Councilmember and she went back to her State Land file from two or three years ago and pulled out the old appraisal. She added that she wondered if anyone read that and said probably no one but pointed out that the recommendation from the appraiser was that this area, the two parcels, be developed as one unit per five acres. She asked what the Town is proposing for development and said it would be much more dense than that and she wondered why. She emphasized that she supported low density in that area since they could not afford to preserve it and had concerns that by rushing into the annexation they would get a medium density and that was not her preference at this time. Vice Mayor Melendez stated that people had asked the Council why they had not done anything since five years ago when they asked for an extension. He explained that they had had four Mayors, four Town Managers, this Council had to deal with a huge deficit and with law enforcement and fire services. He said that somewhere along the line this huge issue regarding State land wasn't addressed, for whatever reasons, and he was not blaming anyone, it just happened. He added that he felt that his back was against the wall and like Councilwoman Stevens, he did not feel that he had enough information, i.e. they had not talked to the County regarding zoning priorities and they had not talked to the State Treasurer. He advised that he talked to the State Treasurer Doug Todd on Tuesday and he informed him that they were conducting a study on this State Land proposal and what was going to occur and he said he told him that they would very much like to review their analysis. He added that there were some things that were still missing as far as he was concerned; however, he felt that if they did not do anything tonight, they were going to show the State that they could not make up their minds and move forward, whether it was an extension or annexation. He said he wished they had more time than tonight to vote on this and ultimately his preference would be to put this to the vote of the people, but they did not have the time to do so. He expressed the opinion that low high quality density would be the best thing for them and he believed it was going to happen. Councilwoman Nicola reminded everyone that the motion was a vote to begin the annexation process and the decision to annex was up to the voters, not the Council. She said that she would support the motion and one reason was she thought that the land that the middle school was on should be in the Town. She added that they were often criticized for not doing more about the traffic and road situation there and they could not because it was not part of the Town,it was in the County. She stated that she would vote in support of annexation. Mr. McGuire clarified that the annexation approval would be granted by the State Selection Committee and the step necessary for the Town to get there was approval of a General Plan amendment, which must be voted on by the citizens. Mayor Nichols called the question. A roll call vote was taken with the following results: Councilman Archambault Aye Vice Mayor Melendez Aye Councilwoman Stevens Nay Councilman Kavanagh Aye Councilwoman Ralphe Nay Councilwoman Nicola Aye Mayor Nichols Aye The motion CARRIED BY MAJORITY VOTE (5 to 2) with Councilwoman Stevens and Councilwoman Ralphe voting Nay. Mayor Nichols asked if the Council had any other motions they would like to bring forward regarding the recommendations that came from the Ad Hoc Committee. Councilman Kavanagh said he didn't have a motion but he would like to express an opinion. He stated that one of the other suggestions they made was to have a five-member committee assist in this process. He added that he did lbw not include that in the motion because he didn't want to micro-manage the Town Manager's efforts in this area,but E:\BBender\Documents\Current Minutes 2003\10-02-03 Regular and Executive Session.doc Page 21 of 36 he would personally encourage the Town Manager if not a five-member committee, to look at bringing in some of the representatives that the Ad Hoc Committee recommended to assist in that process. Councilman Archambault MOVED that a five member committee be formed as recommended by the Ad Hoc Committee to work with the State Land Department and the Town on a development plan and with any developer *1411. who might purchase the land and report to the Council on a regular basis with the addition that the Committee, if they had the availability, work with the State Land Department to identify as much park and trailhead systems that interconnect with the system in place, keeping in mind that the lowest density possible was desired while maintaining the value of the land. Councilman Kavanagh questioned whether the Committee would be assisted and appointed by the Town Manager. Councilwoman Nicola SECONDED the motion. Councilman Kavanagh said that if the Committee was given the power to deal with the State, they would then have a Committee that theoretically would be split talking to the State,the Town Manager talking to the State and major problems would result. He added that he did not believe that there was any way that they could get five people with the same mind appointed by the Council. He stated the opinion that it would result in controversy, division, uncertainty and doom to the plan. He said that one person had to be the "dealer" and he believed the intent of the Committee's recommendation was to have five people helping Mr. Pickering, but that he was the leader. He added that he would like the Town Manager to appoint them because you had to have people under you who were working with you. Councilwoman Ralphe moved to AMEND the motion that two out of the five Committee members be chosen from among the Ad Hoc Committee members for the sake of continuity and that the other three be generally acknowledged preservation voices in the community. She explained that already when they go to the State Land Department there were going to be State officials helping them but also getting into their business and plenty of staff members would be there to represent them on the various aspects. She stated the opinion that they were going to have developers on hand as well so the only interest that was not represented was a preservation interest that would help the Town get the park land and the trail. Councilwoman Stevens SECONDED the motion. Councilman Kavanagh said he thought they needed to realize where they were and added that this was not MCO coming before the Council with plats or the Council having all types of regulations or loopholes that they could use to negotiate,bargain or twist and turn like they had been doing. He pointed out that this land was located outside of the Town that they did not own it and they had zero control over it. He said they must rely on the generosity of strangers and if they started bringing in a mixed committee that resulted in bickering and arguing in front of the State, his motion to annex was totally worthless because the State would not want to get involved with the Town. He added that this would be a bad way to proceed. Vice Mayor Melendez said that he felt they gave direction and took a vote and in his opinion he agreed with Councilman Kavanagh that having five people represent them was not a good management procedure. He questioned the point of entry for developers and said wasn't it Mr. Pickering and ultimately he was going to have to be the person who would deal with the developers whenever they came and if they came. He expressed the opinion that a single "point person" who had listened to all of the residents and debates that had taken place would be the best representative and would provide the State with a focal point for questions and answers with the assistance of legal counsel. Mr. McGuire asked if there was any indication in the motion regarding how this committee would work with Planning and Zoning. He added that what they were talking about was a committee that was going to be doing land use planning with the State, which was really what Planning and Zoning was charged with doing. He asked how they would interact and said from a staff perspective they need to know what the intent was and where to fit them in. E:\BBender\Documents\Current Minutes 2003\10-02-03 Regular and Executive Session.doc Page 22 of 36 Mayor Nichols said that at this point they were discussing the amendment and that was what they should be addressing at this time. Councilwoman Nicola commented that while she supported the idea of a committee to assist staff with this. she would not support a pre-defined committee identifying preservationists. She added that they had a room full of preservations and she would venture to guess that they did not all have the same opinions. She stated that she also did not support the Ad Hoc Committee because they did know if the members of that Committee were willing to take on this very arduous and long-term task. She said she did support the members being appointed by Council based on backgrounds and planning but not necessarily development and working with the Town Manager and the Planning staff. She added that she believed the Planning and Zoning Commission could play a role in this process. Mayor Nichols called the question. A roll call vote was taken with the following results: Councilwoman Ralphe Aye Mayor Nichols Nay Councilwoman Stevens Aye Councilman Kavanagh Nay Vice Mayor Melendez Nay Councilman Archambault Nay Councilwoman Nicola Nay The motion FAILED by majority vote. (2 to 5). The Mayor said that they would now vote on the original motion. Councilman Archambault indicated his intention to AMEND the original motion. Councilman Archambault MOVED that the Council appoint a five-member committee to work with the State Land Department in coordination with the Town Manager and the Planning and Zoning Commission (He clarified that what he wanted the committee to do is to work with and through the Town Manager at his direction and to work toward this annexation so if that meant they needed to work with Planning and Zoning, then they could do so. He said they were to help the Town Manager to get to this point.) He added that the rest of his motion was as follows: and that they try to maintain a park and trail system that would tie in with the existing system and to work on low density. Councilwoman Nicola agreed to SECOND the amended motion. A roll call vote was taken with the following results: Councilwoman Ralphe Nay Mayor Nichols Aye Vice Mayor Melendez Nay Councilwoman Nicola Aye Councilwoman Stevens Nay Councilman Archambault Aye Councilman Kavanagh Nay The motion FAILED by majority vote(3 to 4). Councilman Kavanagh reiterated his request to the Town Manager that he solicit advice and assistance from outside individuals,from preservationists,and the building community as recommended by the Committee. Mr. Pickering noted that they were almost required to do so from the Planning Commission. He added that that was their role, to plan the land use for the Town and Planning staff would certainly be working with the Planning Commission on this very important role. Mayor Nichols stated that the recommendation talked about trying to pursue an extension of time and said that this had not yet been discussed. He read that the last paragraph stated that"if it is determined that the application for E:\BBender\Documents\Current Minutes 2003\10-02-03 Regular and Executive Session.doc Page 23 of 36 annexation would not result in the land being withheld from auction during the annexation process, then the Council may wish to request prior to the expiration of the withdrawal, which was prior to October 27th, that they obtain an extension of time." Councilwoman Nicola MOVED that the Town does apply for an extension and Vice Mayor Melendez SECONDED the motion for purposes of discussion. Councilwoman Nicola stated that the Middle School was developed and was part of the Fountain Hills Unified School District and represented about 3% of the total parcel. She added that they already had in place policies in the Town's zoning ordinance that provided for careful development and preservation of open space. She noted that the voters had approved past purchases of open space and the Council, as the governing body, had a portion of the sales tax and impact fees dedicated to open space. She stated that there were monies budgeted for the purchase of open space and stated the opinion that any request should contain specific timelines that included the annexation of the property and also possibly included going to the voters for a portion to be dedicated as park lands to complete the trail system. Vice Mayor Melendez asked Mr. Pickering if the Council voted to request an extension, the Town had to show that it had the necessary funds and asked if that timeframe was one month. Mr. Pickering responded that that was what the State would require. The Vice Mayor asked where the money was going to come from and Mr. Pickering said that none of the money had been budgeted at this time. He reiterated that they did have open space development fees but none were budgeted, as well as excess mountain sales tax funds that could, as a result of Council action, be directed towards this purchase. Mr. McGuire pointed out that the one thing that they did not know was how much they were talking about and said if the requirement from the State Land Department was one or two million dollars or even $100,000, whatever amount it was that was the figure that would have to be shuffled into the budget in order to be put down as the "show us the money"portion. He emphasized that they had no idea how much it would be at this time. Councilwoman Nicola explained that she was not suggesting that they send a check along with their request for an j extension and said they could tell them that monies had been budgeted and send them a budget and show a strong history of caring for the land. She added that she was not suggesting that they were going to preserve a significant portion of it but she believed that the extension would buy them enough time to see what they could do about preserving a portion of it. Councilwoman Ralphe agreed that it was imperative that the Town apply for an extension but added that her agreement stopped there. She said if they tried to prove their worthiness for an extension by using the Town's past preservation efforts, it would be kind of like telling the IRS that we'll pay our taxes this year sometime, you know we've always paid them in the past. She stated that it just doesn't fit the "show me the money" requirement. She added the opinion that the same was true of the bonding and the State could say that we may or may not get the money by bonding. Councilwoman Ralphe moved to AMEND the original motion to provide for (1) submitting an application for a three-year extension of the State withdrawal order (an extension of three years of the land's conservation status); _ (2) submit, because the Town had to "show them the money," an application to purchase right now 100 acres that would be suitable for park land and also the trail alignment, further providing for detailed maps of just what the Town wanted to purchase to come later; (3)paying$500,000 down from whatever way they had to shuffle things to do so; (4) talking to the State about how the Town could pay the rest. She commented on the fact that if the Town submitted an application to purchase well in advance of October 27th, the only people who were going to want to bid on that land would be entities that wanted to buy and preserve the land. She noted that developers would not be bidding up the price. She added that the last part of her motion (5) was that the Town apply for matching State grants so that the cost of the 100 acres was borne half by local citizens and half Statewide. The amendment FAILED for lack of a second. The Mayor said they were now back to the original motion made by Councilwoman Nicola. E:\BBender\Documents\Current Minutes 2003\10-02-03 Regular and Executive Session.doc Page 24 of 36 Councilwoman Nicola stated that the motion was to apply for an extension and would add to that that additional time be allowed to develop a plan to purchase part of it. She added that she couldn't support Town dollars going towards that at this point in time. She clarified that her comments were not a change or an amendment, but was coo simply discussion. Councilman Kavanagh reiterated that the State wanted cash and significant progress shown. Mayor Nichols expressed his support of exercising both options since the State Land people had suggested to Chair Myrna Smith that the Town do so. Ms. Smith clarified that the original intention of adding that paragraph. If it were determined that the application for annexation would not result in the land being withheld from auction during the annexation process then the Council might want to consider the request for an extension of time prior to the expiration of withdrawal. She reiterated that the extension of time would have to be accompanied by funds. Councilman Kavanagh asked Ms. Smith if a motion without money attached accomplished what the Committed wanted. Ms. Smith agreed it would not. She stated that the Town could request that the land be withdrawn from auction without showing cash. Councilman Kavanagh acknowledged that the Council had already done this in a previous motion. Ms. Smith agreed the Council had already taken care of that. Councilman Kavanagh questioned if this motion was consistent with the recommendations of the Committee. Ms. Smith responded that it was not but that that did not preclude the Council from doing so anyway. Mayor Nichols called the question. A roll call vote was taken with the following results: Councilwoman Stevens Nay Councilwoman Nicola Aye Councilwoman Ralphe Nay Vice Mayor Melendez Aye Mayor Nichols Nay Councilman Kavanagh Nay Councilman Archambault Aye The motion FAILED by majority vote(3 to 4). Councilwoman Stevens said that part of Councilman Kavanagh's motion was to ask the State not to place the land out to bid until the process concluded. She asked whether they were going to take any kind of a stance if they decided not to approve this request and put it out to bid. She also asked whether the Town would still try to annex the land. Councilman Kavanagh stated that the motion said to annex and they were simply asking them to take it out of the bidding process but if they did put it out to bid, it was still in the Town's best interest to annex it so they got the$27 million and could have some type of control over development and provide input. Councilman Archambault asked Mr. McGuire if he could provide the Council with some type of an idea that if they didn't want to hold the land from going to auction, what kind of a time frame were they looking at between the State Trust Land Department figuring out what piece they wanted to auction off(the whole thing or in sections)and it occurring. Mr. McGuire responded that he couldn't even hazard a guess at how long the Department might take to get to that level. He added that it probably would have a lot to do with whether they were considering the annexation request from the Town, knowing that the annexation requires a General Plan amendment and a vote, which would affect the time frame quite a bit. He said that they might have a developer who knew exactly what they wanted to do. Councilman Archambault asked Ms. Smith when the Ad Hoc Committee was meeting whether they discussed with the Department if they went out to bid how much time would elapse from the time they decided to do that to the time the land would actually be purchased. Ms. Smith responded that the time for bid, if the Town was asking for an extension and for a grant, would delay the date of the auction to December of 2005. She added, however, that the idea of asking them to hold off on the auction until the Town had a chance to zone was a new concept and she was not sure what the answer to that would be. E:\BBender\Documents\Current Minutes 2003\10-02-03 Regular and Executive Session.doc Page 25 of 36 Mr. Pickering pointed out that the State did not have a master land use plan and so they had to go through the planning process before they put it up for auction. He stated that it would not be an immediate process. Councilwoman Stevens asked if the developer who bought the parcel at auction had to adhere to their plan. Mr. Pickering stated that the only thing the developer would have to adhere to the zoning that was in place if it were not taken in by another jurisdiction, like the Town. He noted that the land was currently zoned one home per acre in the County. Councilwoman Stevens said that the Town was going to ask the Land Department to hold off auctioning the land and questioned whether they intended to wait for their answer before they began planning or would they proceed with the planning in the hope that the request to hold off would be granted. She added that if six months down the road they advised the Town that they were going to put the land out for auction, would the Town have already started development of a plan or would they wait until they received an answer. She questioned whether they could ask them to provide the Town with an answer within 60 days so they knew whether to work on the plan or not. Mr. Pickering stated the opinion that it would be a good idea to ask for a response with a certain time frame and said he believed the Town would want to know that answer before they started to plan, spend tax dollars or utilize staff time. He stated that if they came back and said "you can help us plan but we're not holding the land off for auctioning" then the Council would have to make a decision at that time as to whether they wanted to commit dollars and staff to that process knowing that it might be sold from underneath them. Councilwoman Stevens asked Mr. Pickering if he needed Council direction relative to a time frame. Mr. Pickering stated that he would not extend it out to six months, it would be a much quicker process that that. He added that he would talk to the staff of the State Land Department and see what a reasonable amount of time was. He said that if they told him they would not make that decision for 90 days he would go along with that but if they said that it was two years off he would not think that this was reasonable. He noted that they could say that they'll have a decision in two weeks,they did not know and that was why he believed it important to talk to them. Councilwoman Stevens requested that Mr. Pickering report back to the Council on the results of those discussions and he indicated he would do so. Mayor Nichols commented on the importance of this issue to the residents and the Town and expressed the opinion that Mr. Pickering would be in constant contact with them as to what was going on and he looked forward to the updates. AGENDA ITEM #9 — CONSIDERATION OF APPOINTING A CITIZEN TO FILL THE VACANCY ON THE COMMUNITY CENTER ADVISORY COMMISSION. Mayor Nichols MOVED that Robert Yordy be appointed to the Community Center Advisory Commission. Councilman Kavanagh SECONDED the motion. The motion CARRIED UNANIMOUSLY(7 to 0). AGENDA ITEM #10 — CONSIDERATION OF APPOINTING CITIZENS TO FILL THE THREE VACANCIES ON THE PLANNING AND ZONING COMMISSION. Mayor Nichols MOVED that Mike Downes, William O'Brien and Wayne Tall be appointed to the Planning and Zoning Commission. Councilwoman Nicola SECONDED the motion. The motion CARRIED UNANIMOUSLY(7 to 0). AGENDA ITEM #11 — RECONSIDERATION OF THE FINAL PLAT FOR "THE SUMMIT AT CRESTVIEW," A 68-UNIT MULTI-FAMILY CONDOMINIUM SUBDIVISION OF 56.65 ACRES OF LAND LOCATED AT THE NORTHWEST CORNER OF SHEA AND PALISADES BOULEVARDS, CASE#52001-08. E:\BBender\Documents\Current Minutes 2003\10-02-03 Regular and Executive Session.doc Page 26 of 36 Mr. Pickering noted that this item was discussed at the last Council meeting and said that it came about because of a stipulation that they had for$60,000 to pay for the charge of Shea Boulevard improvements by this developer. He noted that staff requested that this item be placed on the agenda for a vote of the Council to reconsider this issue. thlw Mayor Nichols asked if there was a motion to accept this item. Councilman Kavanagh MOVED and Councilman Archambault SECONDED a motion to accept the item. Mr. McGuire noted that the motion had to be made by someone who voted in favor of the final plat last time, any of the four votes in favor. Councilwoman Stevens MOVED and Councilman Archambault SECONDED a motion to reconsider this item. Councilwoman Stevens explained that she asked that this item be placed on the agenda for reconsideration because after obtaining some additional facts she had reconsidered her last vote. There being no one present wishing to speak on this item,the Mayor called for the vote. A roll call vote was taken with the following results: Vice Mayor Melendez Aye Councilwoman Ralphe Aye Councilman Archambault Aye Councilwoman Stevens Aye Councilman Kavanagh Aye Mayor Nichols Aye Councilwoman Nicola Nay The motion CARRIED BY MAJORITY VOTE(6 to 1). (kiu, Mayor Nichols stated that he needed a motion to approve the final plat. Councilman Archambault MOVED that they accept the final plat and eliminate Stipulation #9. Councilwoman Stevens SECONDED the motion. A roll call vote was taken with the following results: Councilwoman Ralphe Nay Mayor Nichols Aye Councilwoman Stevens Aye Councilman Kavanagh Aye Vice Mayor Melendez Aye Councilman Archambault Aye Councilwoman Nicola Aye The motion CARRIED BY MAJORITY VOTE(6 to 1). Councilwoman Stevens stated that she had a potential conflict of interest on agenda items#12 and#13 and for that reason she would abstain from discussion and/or voting on these two items. Councilwoman Stevens left the dais during the discussion of these issues. AGENDA ITEM #12 - CONSIDERATION OF RESOLUTION 2003-54 ABANDONING WHATEVER RIGHT, TITLE OR INTEREST THE TOWN HAS IN CERTAIN PUBLIC UTILITY AND DRAINAGE EASEMENTS LOCATED AT THE WESTERLY PROPERTY LINES OF LOT 31,BLOCK 4,PLAT 605A (15727 E. MUSTANG DRIVE) AS RECORDED IN BOOK 155 OF MAPS, PAGE 21, RECORDS OF MARICOPA COUNTY,ARIZONA. EA03-13(DEERFIELD HOMES,LTD.). Vice Mayor Archambault MOVED and Councilwoman Ralphe SECONDED a motion to adopt Resolution 2003- 54. E:\BBender\Documents\Current Minutes 2003\10-02-03 Regular and Executive Session.doc Page 27 of 36 The motion passed UNANIMOUSLY BY THOSE VOTING with Councilwoman Stevens absent for the vote due to a declared conflict of interest(6 to 0). AGENDA ITEM #13 — CONSIDERATION OF RESOLUTION 2003-55 ABANDONING WHATEVER ,400) RIGHT, TITLE OR INTEREST THE TOWN HAS IN CERTAIN PUBLIC UTILITY AND DRAINAGE EASEMENTS LOCATED AT THE SOUTHERLY PROPERTY LINES OF LOT 19, BLOCK 1, PLAT 602A (15603 E. PALISADES BLVD.) AS RECORDED IN BOOK 161 OF MAPS,PAGE 42, RECORDS OF MARICOPA COUNTY,ARIZONA. EA03-14(SINIKKA JAMIESON). Councilman Kavanagh MOVED and Councilman Archambault SECONDED a motion to adopt Resolution No. 2003-55. The motion passed UNANIMOUSLY BY THOSE VOTING with Councilwoman Stevens absent for the vote due to a declared conflict of interest(6 to 0). Councilwoman Stevens returned to the dias. AGENDA ITEM #14 — PUBLIC HEARING TO RECEIVE COMMENTS ON ORDINANCE 03-19 AMENDING CHAPTER 5 OF THE ZONING ORDINANCE FOR THE TOWN OF FOUNTAIN HILLS RELATING TO THE REQUIREMENTS FOR ACCESSORY BUILDINGS AND SOLAR UNITS. CASE NUMBER Z2003-09. Mayor Nichols declared the public hearing open at 9:55 p.m. Planner Denise Ruhling stated that this item was a text amendment to amend the setback requirements for accessory buildings and solar units. She noted that in May of 2002 an ordinance came before the Council discussing various issues related to accessory buildings and solar units. She added that one of the things that happened during that time was that they inserted a Special Use Permit process to get a waiver of the setback requirements. She said that after discussions with the Town Attorney and Planning staff, it was their belief that due to the fact that a variance was typically the process that was gone through for height setbacks, those types of requirements on a building or a home, that they would like to continue with that same process. She requested that they eliminate the Special Use Permit process and remain in conformance with the rest of the ordinance by allowing a variance for setback requirements instead of a Special Use Permit. Councilman Archambault pointed out that earlier this year they reviewed a case involving a garage and an accessory building in the rear. He said that the applicant was seeking access and asked how this change would affect that. Ms. Ruhling pointed out that the request was denied and basically for the reasons that would be looked at if the applicant went through a variance process, namely, can this garage or accessory building be put on this lot without giving special consideration or was it a case where special consideration should be given, i.e. a topography that would make it too steep to put it in that area or rock outcropping that they would like to preserve, something that was not brought forth by the applicant's own design or own will that was out of their control. She added that by eliminating the process they would eliminate that confusion because a Special Use Permit was basically for a use, a dog kennel, hours of operation and something that was a type of a use, not actually the land development itself. There being no citizens present wishing to speak on this item, the Mayor declared the public hearing closed at 9:57 p.m. AGENDA ITEM #15 — CONSIDERATION OF ORDINANCE 03-19 AMENDING CHAPTER 5 OF THE ZONING ORDINANCE FOR THE TOWN OF FOUNTAIN HILLS, RELATING TO THE REQUIREMENTS FOR ACCESSORY BUILDINGS AND SOLAR UNITS. CASE NUMBER Z2003-09. Councilwoman Nicola MOVED and Councilwoman Ralphe SECONDED a motion to adopt Ordinance 03-19. The motion CARRIED UNANIMOUSLY(7 to 0). E:\BBender\Documents\Current Minutes 2003\10-02-03 Regular and Executive Session.doc Page 28 of 36 AGENDA ITEM#16—CONSIDERATION OF THE FINAL PLAT FOR PARCEL 8 AT EAGLES NEST,A 19-LOT SINGLE-FAMILY SUBDIVISION OF 53.34 ACRES OF LAND LOCATED IN THE NORTHEAST CORNER OF THE EAGLES NEST FINAL PLAT, CASE#52002-34. Mr. Pickering noted that they had been through this process a few times and now they were going to review Parcel riv #8. Senior Planner Dana Burkhardt stated that he would like to skip the presentation this evening, which was a standard final plat approval that did not involve anything different or significant. He noted that staff was recommending approval with stipulations. He stated that the applicant was in agreement with all of the proposed stipulations. Councilman Archambault said that next to lots 1, 2 and 3 there was a piece that said "not a part" and asked what it was. Mr. Burkhardt responded that it was a water tank storage site, which had been excluded from the plat at the request of the developer and the water improvements for that site would be included with this plat as it was stipulated. There were no citizens wishing to speak on this item. Councilwoman Stevens MOVED and Councilman Archambault SECONDED a motion to approve the final plat with stipulations as recommended by staff. Councilwoman Ralphe said she was thinking about the other parcels in Eagles Nest that the Council had approved and Parcel 6 where the Town gave MCO an extra high lot which they were going to be able to sell for a half a million or a million dollars. She said that they did not receive anything of value in return for the citizens. She also commented on Parcel 10 and noted that they gave away disturbance, another giveaway to the agreement. She questioned whether the Town was giving away anything this evening in connection with this parcel or remaining even, at least in this instance with the settlement agreement. Mr. Burkhardt responded that this case did not involve any controversy or anything out of the ordinary from the approved preliminary plat or final parcel plat. He added that they did not anticipate any major deviations such as the ones seen in the past. He noted that any controversial items that arose would be brought to the attention of the Council. The motion CARRIED UNANIMOUSLY(7 to 0). AGENDA ITEM #17 - COUNCIL ASSESSMENT AND REVIEW OF THE MEETING TO IDENTIFY PROCEDURAL STRENGTHS AND WEAKNESSES AND DISCUSS POSSIBLE IMPROVEMENTS FOR FUTURE MEETINGS. Councilman Archambault said that they listened to discussion from the public and asked whether this would be the time to talk about that and get some input from the Town Manager as to what he was going to do. He was advised that this would occur later on in the meeting. Councilwoman Stevens said she was a little concerned about their directions to staff and said they had someone who asked them to do something and then a Councilperson just told staff to do it. She stated that she did not know - whether staff was planning on doing it but it seemed to her that the Call to the Public was the public's opportunity to voice their opinion and/or make a recommendation but when it came to placing something on the agenda and giving direction to staff, that needed to come from a majority of the Council. She said she couldn't recall exactly what the issue was. Mayor Nichols asked her to look at the instructions on the Call to the Public, the second page, and noted that they were very clear. He pointed out that they stated "at the conclusion of the Call to the Public individual Councilmembers may respond to criticism, ask staff to review a matter, or ask that the matter be placed on a future Council agenda." Councilwoman Stevens stated that she did not support that and the Mayor responded that this would have to be pursued at a later time. E:\BBender\Documents\Current Minutes 2003\10-02-03 Regular and Executive Session.doc Page 29 of 36 Councilwoman Stevens asked whether this was part of the new policies and procedures or whether it had always been there. Mr. McGuire stated that it had always been in effect and he has always recommended to the members of the Council that they did not say anything other than "thank you very much for your time" and not respond to criticism or anything else. He added that then if later on during a Council discussion item the next week they wanted to put it on an agenda to follow up on, they could. He said he understood her quandary and it was good example of why he did not recommend that the Council respond to the Call to the Public. Councilwoman Nicola stated that she thought that under the Open Meeting Laws, there was a State statutes provision pertaining to this. Mr. McGuire confirmed that it was State law and it was the permissive language of the Call to the Public Open Meeting Law issue and stated the opinion that this was an area where when they decided to be permissive,they opened up"Pandora's Box." He added that it was an area that he hoped they could close up. Councilwoman Nicola said that she believed the statute and the procedure were quite clear and the Council's procedure for having other items placed on the agenda were things that they came up with. She pointed out that the Council worked for the citizens and said when they were identifying a problem or asking for a solution, she thought it was incumbent upon them to act at the time that they asked for that if they thought it was appropriate to respond. She added that this was what she did and the request was one that she had been receiving e-mails on and was concerned with herself so she did ask staff to review the concerns, report back to the Council, and to schedule a joint work study session, which did not allow public comment, between the Parks & Recreation Commission and the Town Council for the purpose of discussing the much discussed skate park within the next 60 days. She said under Agenda Item#19, she would ask the Town Manager what he was going to do about that. Councilwoman Stevens clarified that she was not opposed to them doing that on the skate park issue,it was the idea that someone spoke under the Call to the Public and one Councilmember had something placed on the agenda without going through Agenda Item#18, which was what that was for. She added that her problem was that one Councilperson made that decision and gave staff direction; it was not this particular issue. She said that she agreed with her about the skate park but it was just the process that she was not happy with. Councilman Kavanagh said his understanding would be that a Councilperson could ask to have something placed 4411) on an agenda but it did not go on an agenda unless it went through the procedures. Mr. McGuire stated the opinion that that was working through the process that was in place, asking that it be placed on the agenda, and maybe it should be put under the Council Direction and Discussion item so that the entire Council could decide whether or not they wanted to discuss the issue or hold a meeting. Councilwoman Nicola stated that when they adopted the rules of procedure, they were governed by State law first, the Town Code, including the Council Rules second, Parliamentary procedure third and Robert's Rules of Order fourth. She reiterated that she felt strongly that the State statute was there for a reason and she added that this was the first time she had responded and she though that it was right to do so when deemed appropriate. Mr. McGuire commented that they had to keep in mind that the Council's Rules stated that it was the Presiding Officer who could do any of these things and that was to permit a Councilmember to respond to criticism or to ask that staff do something because of what was said during the Call to the Public. Mr. McGuire looked at the language that was contained in the instructions that the public read and said it appeared that they might not have revised that language to reflect this since the new rules and procedures were put into place. Mr. McGuire was asked to look into this further and get back to them at a later time and to provide a copy of the State statute as well. Councilwoman Ralphe said that she was just getting used to the new rules and procedures but already had a concern regarding one of them and said that if any other members shared her concern,perhaps they could ask staff where to go from here. She stated that her concern related to public input regarding an item that was on the agenda and said that it was now set up so that the public comment came before any citizen had heard any motions. She stated the opinion that this put the citizens at a disadvantage in knowing just what they wanted to say. She added that although she should have realized that this was what they were doing, she did not and this was something she would like to go back over and reconsider. E:\BBender\Documents\Current Minutes 2003\10-02-03 Regular and Executive Session.doc Page 30 of 36 Mayor Nichols stated that this was an issue that could be placed on the agenda of a future meeting under Item#18 and said that tomorrow she could request that Mr. Pickering place this on a future agenda under that section. AGENDA ITEM#18—COUNCIL DISCUSSION/DIRECTION TO THE TOWN MANAGER. Niro In response to a request from the Mayor to further clarify the purpose of this item, Mr. McGuire stated that this section was intended to allow one Councilmember to request from the remainder of the Council that an item be placed on a future agenda. He added that it was a way to ensure that one Councilmember could not be shut out if he or she did not have the concurrence of at least two other members or the Mayor to put something on the agenda. He likened it to a motion to continue and said they could consider whether the issue(s) should be placed on a future Council agenda. He noted that it was not specifically spelled out on the agenda to allow the public to know what they were talking about to have a long discussion on the merits. He added that Councilmembers were allowed to present an idea, ask if that is something that the rest of the Councilmembers would like to talk about at a future meeting. He noted that the Councilmembers could ask questions about the issue(s)but it was not a time for debate. Mayor Nichols clarified that they would not discuss the merits of the issue(s) but rather the reasons why the Councilperson(s) wanted to place it on a future agenda and to find out if the other members of the Council wanted this to happen. A. Requested by Councilwoman Nicola: Placing the item of discussion of establishing a sub-committee made up of the members of the Town Council and the Planning and Zoning Commission and Fountain Hills' business owners/residents to identify solutions to ongoing signage concerns on a future agenda for action. Councilwoman Nicola thanked all of the current and past staff members who worked so diligently on the Sign Ordinance amendments over the last two years. She said that she brought this forward because they were looking at it for the second time in a relatively short period of time. She stated that she read the P&Z minutes and they were wondering why they were looking at it again and it was because it didn't pass the first time it came before the Council. She added that along the way some real estate issues also surfaced. She said that she, along with some other Councilmember, met with a representation of the business community, one dozen people, who asked that they be allowed to participate in the conversation at this point, before it went to Planning and Zoning for discussion and possible approval of staffs recommendations. She stated that she was asking for the policy makers to have a public hearing and listen to the concerns of the citizens and the business community at a time that is convenient. She noted that they originally held some open public hearings on the sign issue but said they were held in the afternoon during business hours and a number of complaints were received about that. She clarified that she was not asking that they start the whole process all over again and said she provided everyone today with a copy of a good working document that had been reviewed by the Town Manager and Town Attorney. She added that she had also provided the Council a four page document put together by the Committee she met with and reiterated that several of those people were present this evening but left because they knew they were not allowed to speak. She noted that the document contained their suggestions for amendments,not hers. Councilwoman Nicola requested that they stop the circular motion and consider a few things. She said they had the opportunity to give justifications for their positions to the members who had concerns with certain parts of the ordinance. She noted that there were some changes to the real estate signs and stated that no discussions took place with the real estate community. She emphasized the importance of this matter and said that real estate companies from all over the Valley brought signs into the Town and she was not suggesting that they come to the table, but it was an educational process when you changed something that was so significant. She requested that a public hearing be held and attended by no less than three Councilmembers and no less than three Planning & Zoning Commissioners. She said that she had discussed this with only two P&Z Commissioners and they both agreed that it was a good idea to allow one more opportunity to have this conversation. She noted that there was a big difference in listening to their input before the Council and before Planning&Zoning was set to approve or not. She stated the opinion that that was late in the game and she was trying to stop the circular motions. Councilman Kavanagh commented that this issue had been "talked to death" and had been before P&Z twice, before the Council once at a Work Study Session and once at a meeting. He added that theoretically this should be "put to bed" except he had second thoughts on one of the small items and said he was willing to reconsider E:\BBender\Documents\Current Minutes 2003\10-02-03 Regular and Executive Session.doc Page 31 of 36 that small item. He said that then, somehow, the entire ordinance was up for reconsideration, not what was passed, but staff's original idea was resurrected again after the Council already rejected it and proposed something different. He expressed the opinion that everyone was familiar with the issues and the best place to address them was in an open public meeting with everybody. He suggested that if anyone wanted to make changes that they place the issue on the agenda and discuss them at an open public meeting. He said he was `r hesitant to have the workshop sessions because so much of the ordinance got crafted there, out of the full public view, but he agreed to them because they saved time. He emphasized that if they were considering making changes to the ordinance, he did not want to do it with a small group of one part of the community or another or a small group of P&Z people. He said they should set aside an hour or two at a public meeting where they had an action item and take each problem and discuss and vote on them there. Councilman Archambault said he too met with these people and he knew where Councilwoman Nicola was coming from and agreed with what she wanted to do. He stated that he met with the business owners and made, in his opinion, great strides in a meeting of the minds. He noted that one of the things that he did come away with was what their real concerns were which didn't appear to have been addressed during all of the meetings. He added that primarily what he got from that (although it was not verbally communicated to him) was that they were never able to attend the meetings because of the timing. He said they even conveyed to him the respect they have for Denise and the work that she was doing. He advised that all they wanted to do was have a little bit of dialogue to understand where they were coming from. He stated that he told them that the Town's main issue was liability and they accepted that fact and said maybe a solution could be found. Vice Mayor Melendez said that he also would support a public meeting. Councilwoman Ralphe noted that she would not support this and said it was pure and simple that public discussion was most appropriate at public meetings and public hearings and a good system was in place to do that. She added that although the term might be a little drastic,this was sort of an invitation to"mob rule." Councilwoman Stevens said that she would not be supporting it and said that public hearings were held both at Planning and Zoning and at evening Council meetings and the discussion should occur during those times. Councilman Kavanagh stated that to reiterate his position, he wanted to hear what the people wanted to say and he wanted them to be able to suggest amendments but he wanted to do it when it counted, when the Council could act upon it. He added that he did not want to put the citizens through another series of meetings where nothing definitive came out and then they went to the Regular meeting and everybody said the exact same things they said at the first meeting. He pointed out that they knew the issues and the Council knew the issues and if they wanted to address them, they should do it where we could vote on them and get it over with. The Mayor noted that they were supposed to be talking about whether to have this discussion item placed on another agenda rather than having a discussion about it at this time. Mr. Pickering advised that this item could be placed on the agenda of the Planning Commission for October 23rd and on the Council agenda for the first meeting in November, November 6th if they proceeded through the standard steps, which he believed was a pertinent discussion of whether to schedule that meeting or not. Mayor Nichols, addressing Mr. McGuire, said that they were not talking about whether they wanted to hold this meeting but whether they wanted to put this on an agenda to discuss when they wanted to have it. Mr. McGuire concurred with the Mayor's comments. Mayor Nichols added that right now there were several people who wanted to place it on an agenda and several who did not so he asked all those in favor of putting the item on an agenda to say aye and those opposed to say nay. A roll call vote was taken with the following results: Councilwoman Stevens Nay Councilwoman Nicola Aye Vice Mayor Melendez Aye Councilman Ralphe Nay E:\BBender\Documents\Current Minutes 2003\10-02-03 Regular and Executive Session.doc Page 32 of 36 Mayor Nichols Nay Councilman Kavanagh Nay Councilman Archambault Aye The request to move forward on this item FAILED (3 to 4). Councilwoman Nicola clarified that she was asking for a special meeting, not to place it on an agenda to talk about a special meeting. She stated the opinion that they needed to clarify their rules of procedure because they did have one in place for calling a special meeting. Councilman Kavanagh said he was voting on putting it on an agenda because he wanted to hear what the people had to say but a process was already in place for that. Councilwoman Nicola asked if there could be a motion to reconsider and asked for one. There being no response, the Mayor moved onto the next item. B. Requested by Councilman Archambault: Placing the item of discussion with possible direction to staff to research the Town's authority and options relative to refuse service within the Town of Fountain Hills on a future agenda for action. Councilman Archambault stated that he believed the Council was aware of the fact that he had been doing some research relative to a comment he made back in November about the Town controlling its own refuse service. He said that he had part of that research with him and said what this amounted to was to look at an additional revenue source for the Town that could be a considerable amount of money. Vice Mayor Melendez said that Councilman Archambault brought this issue back last November and he believed it was a big project for staff but that they should look at this from many standpoints. He added that he would support this request. Councilwoman Stevens commented that she would rather look at this as part of the Town's revenue discussion at a Regular meeting on that agenda item. Councilwoman Nicola stated that she supported getting the information that staff and Councilman Archambault has compiled,placing this on a future agenda and talking about the issue as a policy rather than a revenue enhancement. Mr. McGuire said that as soon as they hear that three members of the Council were in support of the request, they did not need to go any further since that number was sufficient to place the item on an agenda by itself. Mayor Nichols pointed out that there were three votes on the first item, yet it failed. Mr. McGuire said that was his point,there were three votes and so Councilwoman Nicola's recommendation that the issue be another line item on a future agenda should be approved. He further clarified that the reason for this agenda item was for a person who felt that he or she did not have two other votes, it was not a method to avoid having to go talk with the other six members and say "do two of you agree with me so they can put it on a regular agenda?" He added that this was where the confusion came in. Councilman Kavanagh asked if this was to avoid Open Meeting Law violations and Mr. McGuire responded exactly. He added that he would prefer that if you know you have two members who agree with you, tell Mr. Pickering and put it on the Regular agenda. He emphasized that this was meant for someone who had gone to the other six members and no one else wanted to place it on an agenda so this allowed that one person to plead his or her case. Councilwoman Nicola referred to Section 3.3 in the Procedures Manual, Special Meetings, and read that the Mayor and Town Clerk, upon the written request of three Councilmembers may convene a Special Meeting. She said that 460, was what she was asking for and said this was not a work study session or a special council meeting, she was just asking for a time, even the day before Planning & Zoning votes to discuss, that citizens and business people have the opportunity to have an open meeting in front of all of them so they all have a clear understanding of the issue. E:\BBender\Documents\Current Minutes 2003\10-02-03 Regular and Executive Session.doc Page 33 of 36 Mayor Nichols responded that what he was hearing from the Council was that this was not the appropriate place to have this item discussed and asked for input from Mr. McGuire who responded that that would be the intent. Mayor Nichols stated that they would then move on to the next item. Mr. Pickering asked that the Council respect the fact that he needed time to look at how long it would take staff to get that item ready for an agenda. Mayor Nichols responded that Mr. Pickering would be provided sufficient time to bring forward accurate and pertinent information. C. Requested by Councilwoman Stevens: (i) Placing the item of disposition of the Development Advisory Committee on a future agenda for action; and (ii) Placing the item of consideration of establishing a policy for application and disbursement of Proposition 202 funding on a future agenda. Councilwoman Stevens discussed the first item and noted that the Committee has been in a hiatus status for a year and a half and she said she spoke with the Committee relative to placing the item on an agenda to decide whether it went forward or went away. Vice Mayor Melendez and Councilwoman Nicola stated that they supported placing the item on a future agenda. She also discussed the second request and explained that she was not quite sure what they were doing with that and she believed it was something that they needed to discuss. She added that people were asking the Council to move forward on that and she believed a policy should be developed. Councilman Kavanagh and Vice Mayor Melendez stated that they would support placing this on the agenda of a future meeting as well. Mr. McGuire stated that prior to placing that on an agenda, staff would develop some questions that they needed answers to from the Council so they could develop a draft policy. D. Requested by Vice Mayor Melendez: (i) Placing the item of establishing the Channel 11 Commission, their role and responsibilities on a future agenda for action; and (ii) Placing the item for discussion of "non-licensed"businesses operating in Fountain Hills on a future agenda for action. Vice Mayor Melendez said that he would like to talk about Channel 11 and stated that for some time now, the members of this Council and the citizens have been working on developing a new format for Channel 11. He noted that much of the groundwork has been done in working with the Fountain Hills High School and he thanked School officials for their coordination efforts and support. He recommended that they place the establishment of a Channel 11 Programming Commission on the next agenda so that the Council can appoint this Commission. He pointed out that there had been numerous talented technicians and Broadway producers who were very interested and he said he did not want to see that interest level off. The Vice Mayor said that there were video taped programs aired throughout the day on Channel 11 and stated that there were numerous instances where citizens could contribute to this and they could make it a better viewing program for the audience. The Vice Mayor stated that his last request deals with placing the item for discussion of non-licensed businesses operating in Fountain Hills on a future agenda for action. He said that perhaps he did not want to have this on a full staff agenda but if he could have an opportunity to talk about the issue he would appreciate it. He noted that Fountain Hills' Code, under Section 8, Business Licenses, stated "it is unlawful for any person, whether as a principle or agent, either for himself or another person or for any corporation or as a member of any firm or partnership to commence, practice, transact or carry on any trade, profession, occupation or business within the Town limits without first having procured a license from the Town to do so and without complying with all of the regulations of such trade." He went on to read "no license shall be issued without proof by the applicant of such compliance and verification by the Clerk that no violation of the Town's zoning regulations would occur by the issuance." E:\BBender\Documents\Current Minutes 2003\10-02-03 Regular and Executive Session.doc Page 34 of 36 Vice Mayor Melendez stated that his point was from the number of complaints he had received from residents and business owners, he believed they had and still have a problem regarding this issue. He said that businesses that were complying with the law were clearly at a disadvantage and added that most of the un-licensed businesses with their pickup trucks and so forth come from Glendale and Mesa and often underbid the local businesses. He stated that he did not mind fair competition, however, he believed they should have a license to operate in the Town. He added that now that the new Code Enforcement Department was in place this should be a simple matter of enforcing the law. He said that instead of placing this issue on an agenda, he would like to give direction to the Town Manager and others involved to enforce the law and make these people apply and pay for the licenses. Mayor Nichols thanked the Vice Mayor for his input. In response to a question from the Mayor,Mr. McGuire stated that if the desire of the Council was to give direction to staff and have discussion on the merits of it, either the Mayor or any three Councilmembers could place it on an agenda. Councilmember Kavanagh informed the Town Manager that during the last ten minutes he had spoken with Vice Mayor Melendez and Councilwoman Ralphe and the three of them directed him to place on the next agenda as an action item a change in the policy to return to the old policy that one Councilmember could contact him and place an item on the agenda. He added that they changed it because that was supposed to be awkward but stated the opinion that this was the most awkward policy he had ever seen. Mayor Nichols noted that it was not on the agenda to do that but it could be done tomorrow. Councilman Kavanagh indicated his intention to so instruct Mr. Pickering following the meeting. Discussion ensued relative to the importance of providing Mr. Pickering sufficient time in which to prepare for these items. AGENDA ITEM#19—SUMMARY OF COUNCIL REQUESTS BY TOWN MANAGER (111.0 Mr. Pickering stated that when residents brought forward concerns, he always made note of them and tried to get back to them and said they would certainly get back to Mr. Turner. He added that he would be contacting the State and indicating the Town's desire to begin the annexation and planning process and report back to the Council when they could expect a response, if they were willing to do that. He said that they would begin researching the refuse issue more thoroughly to place that on an agenda, put the Development Authority on an agenda, the Policy for Proposition 202 on an agenda, and place the Channel 11 issue on the agenda. He stated that the enforcement of laws were well noted and they would work on that. He said the last issue was changing the Rules of Procedure. He asked whether a majority of the Council wanted to schedule a joint session with the Parks Commission relative to the skate park. Councilwoman Nicola said that she thought she made it clear, and Mr. McGuire concurred, that there was a State statute and it was in the Council's Procedures,the first paragraph of the third paragraph that was referred to on page 10: "all citizens and interested parties will be limited to a maximum of three minutes to address the Council on a non-agenda item." She added "in order to comply with State law, the Council may not discuss any issue raised during Call to the Public and not listed on the agenda except to thank the speaker or direct the Town Manager to follow up on the matter and/or schedule it for a future public hearing." She stated the opinion that the State law was pretty clear that it only takes one person. She added that she was not satisfied with the statement that staff would get back to Mr. Turner, there was a bigger group of citizens out there. She asked that Mr. Pickering look into the concerns on where the Committee was at and that they set a joint public meeting within 60 days. Mayor Nichols commented that he thought Councilwoman Nicola's concern was with what was listed on the Call to the Public where anybody can make a recommendation. He added that this had to be looked at. Mr. McGuire stated he would review the agenda language to ensure that it was consistent with State Statute. E:\BBender\Documents\Current Minutes 2003\10-02-03 Regular and Executive Session.doc Page 35 of 36 In response to a question from Councilwoman Nicola, Mr. Pickering was directed to place this item on a future agenda as well. AGENDA ITEM#20—ADJOURNMENT Councilwoman Stevens MOVED that the Council adjourn and Vice Mayor Melendez SECONDED the motion, which CARRIED UNANIMOUSLY. The meeting adjourned at 10:40 p.m. TOWN OF FOUNTAI ILLS By Wally Nicho ayor ATTEST AND PEPARED BY: /6 Bevelyn J. B'nd ,Town Clerk CERTIFICATION I hereby certify that the foregoing minutes are a true and correct copy of the minutes of the Regular Session held by the Town Council of Fountain Hills on the 2nd day of October 2003. I further certify that the meeting was duly called and that a quorum was present. DATED this 16th day of October 2003. )6 Bevelyn J. Be er, own Clerk E:\BBender\Documents\Current Minutes 2003\10-02-03 Regular and Executive Session.doc Page 36 of 36