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HomeMy WebLinkAbout2005.0303.TCRM.Minutes TOWN OF FOUNTAIN HILLS MINUTES OF THE REGULAR SESSION OF THE FOUNTAIN HILLS TOWN COUNCIL MARCH 3,2005 Mayor Nichols called the meeting to order at 6:30 p.m. INVOCATION—The invocation was led by Pastor Jim Fitz,Fountain Hills Community Church. (At this time, Mayor Nichols asked everyone in the audience to join him in singing "Happy Birthday" to Councilman Schlum.) ROLL CALL — Present for roll call were the following members of the Fountain Hills Town Council: Councilman Archambault,Mayor Nichols, Councilman Kehe Councilman Kavanagh, Councilman Schlum, Vice Mayor Nicola, Councilman McMahan. Town Attorney Andrew McGuire, Acting Town Manager Mark Mayer, Planner Kate Zanon, Senior Planner Dana Burkhardt, and Town Clerk Bev Bender were also present. SCHEDULED PUBLIC APPEARANCES/PRESENTATIONS: (1) Recognition of Loving Family Dental and Majestic Coatings for their contributions to the Town of Fountain Hills' "St. Patrick's Day Celebration"on Thursday, March 17, 2005 AND (2) Recognition of the Goyena Team — MCO Realty, Inc., for their contributions to the Town of Fountain Hills' "Eggstravaganza" on Saturday,March 19, 2005. Mayor Nichols, speaking on behalf of himself, the Town Council, staff, and residents of Fountain Hills, recognized the contributions of the sponsors of the 2005 St. Patrick's Day Celebration at Fountain Park on March 17th and of the "Eggstravaganza" on March 19th at Golden Eagle Park. The Mayor noted that since 2003, Loving Family Dental and Majestic Coatings have stepped forward to sponsor the dyeing of the Fountain green on St. Patrick's Day, a tradition since the early 1980's. He stated that thanks to Tim and Linda Loving and Mike and Carol Martinez's generosity, this signature event would once again provide enjoyment for the many residents and visitors at the park on St. Patrick's Day. Mayor Nichols further stated that sponsorship by the Goyenas and MCO Realty has allowed the "Eggstravaganza", another wonderful tradition in Fountain Hills, to continue. He stated that many years ago volunteers distributed thousands of hard-boiled eggs at Fountain Park. He added that for the past ten years, the event has been held at Golden Eagle Park and more than 12,000 plastic eggs stuffed with candy and toys are collected by the children, an exciting event for everyone. He reiterated his appreciation to Loving Family Dental, Majestic Coatings, the Goyenas, and MCO Realty for their willingness to once again serve the community through the sponsorship of these unique Town events. Tina, the Office Manager for Loving Family Dental, accepted a plaque on behalf of Tim and Linda Loving commemorating their contributions to the community. The Mayor also presented her with a symbol of the Town for the Lovings, a pen containing the Town Seal. Mayor Nichols also presented the Goyena family with a plaque and pen and said that on behalf of the Council and residents of the Town he would like to thank them for their contributions to Fountain Hills in sponsoring the "Eggstravaganza"event. Mr. Joseph Goyena stated that the Town of Fountain Hills has done a lot for them and this is their way of saying "thank you". (3) Proclamation recognizing the Fountain Hills' High School Boys Basketball Team's participation in the State 3A Championship Finals. E:\BBender\Documents\Current Minutes 2005\03-03-05 Regular Session.doc Page 1 of 14 Mayor Nichols requested that members of the Fountain Hills' High School Boys Basketball Team join him at the podium along with Coach Cain Jagodzinski, Assistant Coach Bruce Keating, and School Superintendent Dr. Marian Hermie. Team members Martin Ort, Dan Thomas, Brian Lorenz, Alex Bundt, Pat Keating, and Owen Santos joined the Mayor at the podium. The Mayor also requested that the members of the Council step down from the dais and stand behind the team members. Mayor Nichols advised that the members of the team put forth a mighty effort to win the 3A Championship Finals and said just as they worked as a team, the members of the Council were striving to do the same and thanked everyone for their hard work, dedication and teamwork. Mayor Nichols read a proclamation honoring the members of the Falcons and commending them on their accomplishment. He stated that they were the very first boy's basketball team in the school's history to win a state title and commended Coach Jagodzinski on his efforts to bring about the victory. The Mayor announced that it was the desire of the Town of Fountain Hills to celebrate this accomplishment and asked the citizens of the Town to celebrate with them as well. Mayor Nichols presented each member with a token gift and commended them on their outstanding efforts. Coach Jagodzinski commented on their hard work and excellent attitudes and noted that they had won 27 straight games. CALL TO THE PUBLIC Jack Bercel Mr. Bercel, representing Bercel Builders, the owner of a business located on the corner of the Alley and Laser Drive in the industrial park(16626), said that the road at this location was turning into rubble and the Town had closed it off just past where SRP is located. He stated that he has an entrance off Laser Drive and an emergency entrance off the alley. He said that he knew that in time the road would be taken care of, but added that he had concerns regarding the fact that the gate at Saguaro Boulevard and Technology Drive was now open to allow access for emergency services in the industrial park. He commented that as a property owner and taxpayer in Fountain Hills, under normal circumstances he was not allowed to use Technology south because of the gate and the truck road ends at the gate. He added that it had always been his belief that Saguaro Boulevard and the streets within the industrial park had always been a part of the industrial park and therefore, as a property owner within the park, he would like whoever was responsible to look into the legality of closing a public right-of-way. He requested that someone look into this matter and determine what could be done to rectify the situation. Mayor Nichols requested that Town Attorney Andrew McGuire look into this situation and report to the Council. Mr. McGuire acknowledged the request and said he would follow up on this matter. Frank Ferrara Mr. Ferrara stated that he wished to publicly thank the Mayor, the Vice Mayor, and Council for their vision and foresight regarding the project known now as Avenue of the Fountains. He said that it was going to be a tremendous asset to the Town and thanks to the leadership of the Council, the Town Manager, and staff; this vision will become a reality. Mayor Nichols thanked the speakers for their comments. CONSENT AGENDA Mayor Nichols read the following consent agenda items: AGENDA ITEM #1 — CONSIDERATION OF APPROVING THE MEETING MINUTES OF 2/08/05 and 2/17/05. AGENDA ITEM #2 — CONSIDERATION OF RESOLUTION 2005-16, ABANDONING WHATEVER *1111) RIGHT,TITLE OR INTEREST THE TOWN HAS IN CERTAIN PUBLIC UTILITY AND DRAINAGE EASEMENTS, LOCATED AT THE NORTHERLY PROPERTY LINES OF PLAT 602D, BLOCK 2, E:\BBender\Documents\Current Minutes 2005\03-03-05 Regular Session.doc Page 2 of 14 LOT 57 (15318 THISTLE DRIVE) AS RECORDED IN BOOK 166 OF MAPS,PAGE 34,RECORDS OF MARICOPA COUNTY,ARIZONA. EA05-02 (JACKSON). AGENDA ITEM #3 - CONSIDERATION OF RESOLUTION 2005-17, ABANDONING WHATEVER RIGHT,TITLE OR INTEREST THE TOWN HAS IN CERTAIN PUBLIC UTILITY AND DRAINAGE EASEMENTS LOCATED AT THE SOUTHERLY AND WESTERLY PROPERTY LINES OF PLAT 505B, BLOCK 1, LOT 4, (15715 E. CERVANTES COURT)_AS RECORDED IN BOOK 158 OF MAPS, PAGE 43,RECORDS OF MARICOPA COUNTY,ARIZONA. EA05-03 (HARGETT). AGENDA ITEM #4 — CONSIDERATION OF THE EXTENSION OF PREMISE APPLICATION SUBMITTED BY ANNE ORT FOR GOLF INTERNATIONAL,LOCATED AT 10440 INDIAN WELLS DRIVE. GOLF INTERNATIONAL IS REQUESTING AN 18' X 36' PATIO WITH A 3' FENCE AROUND IT—MAXIMUM CHANGE IN SEATING CAPACITY TO 24. AGENDA ITEM#5 — CONSIDERATION OF APPROVING THE LIQUOR LICENSE APPLICATION SUBMITTED BY LAUREN KAY MERRETT FOR MIKE'S AT THE FOUNTAIN, LOCATED AT 16872 E. AVENUE OF THE FOUNTAINS. THE APPLICATION IS FOR A NEW CLASS 12 (RESTAURANT) LICENSE. AGENDA ITEM #6 — CONSIDERATION OF RESOLUTION 2005-21, APPROVING INTERGOVERNMENTAL AGREEMENT #124-31-2005 BETWEEN THE TOWN OF FOUNTAIN HILLS AND THE REGIONAL PUBLIC TRANSPORTATION AUTHORITY, FOR THE TRANSIT SERVICE AGREEMENT FOR FY 2004-05; AND RATIFYING THE TRANSIT SERVICE AGREEMENT#12-31-2003 FOR THE PROVISION OF PUBLIC TRANSPORTATION SERVICES. AGENDA ITEM #7 — CONSIDERATION OF RESOLUTION 2005-13, APPROVING AN INTERGOVERNMENTAL AGREEMENT WITH MARICOPA COUNTY IN THE AMOUNT OF $69,595.28,TO PROVIDE SPECIAL TRANSPORTATION SERVICES FOR FY 2004-05. Councilman Archambault MOVED to approve the Consent Agenda as read and Councilman McMahan SECONDED the motion. A roll call vote was taken with the following results: Councilman Kehe Aye Councilman Schlum Aye Councilman Kavanagh Aye Vice Mayor Nicola Aye Mayor Nichols Aye Councilman McMahan Aye Councilman Archambault Aye The motion CARRIED UNANIMOUSLY(7 to 0). ACTION AGENDA AGENDA ITEM #8 — CONSIDERATION OF A SPECIAL USE PERMIT FOR AN OUTDOOR EXERCISE AND PLAY AREA FOR "ZUSIA'S DOGGIE DAYCARE AND SALONSPA," LOCATED AT 16650 PALISADES BOULEVARD, SUITE #110, AKA THE CROSSINGS AT FOUNTAIN HILLS, LOT 1,BLOCK 3,PLAT 102. CASE#SU2005-01. Planner Kate Zanon addressed the Council regarding this agenda item and noted that the application is for a Use Permit for an outdoor exercise area for a dog daycare and salon spa. She noted that the applicant was requesting IlAw partial use of an existing outdoor play area for the dogs. She noted that the facility would include two indoor playrooms where the dogs would spend the majority of the day and added that use of the outdoor area would be for exercising the dogs in three supervised group rotations, twice a day. She added that the yard would only be E:\BBender\Documents\Current Minutes 2005\03-03-05 Regular Session.doc Page 3 of 14 used between 9:00 a.m. and 5:00 p.m. for approximately six hours in that time frame(three hours in the morning and three in the afternoon): Ms. Zanon stated that there would be no over night boarding at the facility and the yard would not be used for kenneling. She pointed out that supervisors would be with the dogs at all times to control noise, for safety, and to prevent the dogs from using the play area as a potty yard. She added that strong measures would be taken to avoid accidents and, should an accident occur, it would be removed and the area cleaned and sanitized. Ms. Zanon informed the Council that at the present time the 8,046 square-foot outdoor play area in the Crossings at Fountain Hills was not in use. She explained that the area was intended as an outdoor activity area for a Montessori school and the size of the proposed dog outdoor area is 2,275 square feet, which was less than one-third of the existing play yard. She reported that the existing condition of the area in question included some grassed areas, a gravel path, and some desert landscaping. She said that no new structures were proposed for the site and improvements would include the construction of a fence to separate the dog portion of the play yard from the remaining play yard and additional screening along the east side of the outdoor area. Ms. Zanon advised that staff recommended approval of the Special Use Permit with two stipulations: 1. The applicant will provide screening on the east side of the outdoor play yard to shield the use from the abutting multi-family residential complex. The applicant could add landscaping along the wrought iron fencing, such as a vine type plant or hedge and/or build a solid wall offset from the existing wall in accordance with Zoning Ordinance regulations. The applicant will submit a plan to the Town for approval including any necessary grading and drainage changes prior to issuing the permit. 2. Use of the play yard will be limited to the applicant's proposed hours of 9 a.m. to 5:00 p.m. Ms. Zanon stated that staff had not received any written restrictions to the request for a Special Use Permit but some concerns were voiced at the February 10th Planning & Zoning Commission meeting and the Commission recommended denial of the Special Use Permit. She said the Planning and Zoning Commission believed that the proximity of the proposed facility to the adjacent area was too close. In response to a question from the Mayor, Town Clerk Bev Bender advised that 11 citizens had filled out requests to speak. Mayor Nichols requested that Ms. Bender call the names of the speakers so that they might present their remarks. Suzanne Patterson, 16650 E. Palisades Ms. Patterson, the owner of Zusia's Doggie Daycare and Salonspa, which would be opening this Monday, said that as a resident and business owner of the Town she could assure the Council that no one was more concerned about keeping this facility a pleasant environment than her. She stated that she understood the concerns expressed by the residents and indicated her intention to present solutions to mitigate and in some cases abate the issues. Ms. Patterson referred to slides depicting the facility and noted that the facility would be open Mondays through Fridays from 7:00 a.m. to 6:00 p.m. and would not operate on weekends. She noted that dogs coming into the facility would be divided into three groups depending on their size and temperaments and would rotate using the south side yard. She emphasized that special needs dogs would only be allowed out into the yard on a "one at a time"basis and therefore only one dog would be in the yard for two of the six requested hours. She pointed out that during hot and rainy weather, the dogs would remain inside. She estimated that the facility would have a maximum of 12 large dogs, 15 to 16 small dogs, and 5 to 8 special needs dogs. Ms. Patterson informed the Council that dogs would not enter the play yard until 9:00 a.m. and that would begin with the special needs dogs, one at a time, with multiple dog play beginning at 10 a.m. She said there would be a two-hour break beginning at noon for naptime and mid-day walks/snack time allowing quiet time over lunch as well. She added that the afternoon rotation would begin at 2:00 p.m. and end at 5:00 p.m. and noted that there would not be any dogs in the yard after 5:00 p.m. She commented that issues raised at the Planning & Zoning meeting included odor, noise, and drainage issues. She stated that the drainage issue was not connected E:\BBender\Documents\Current Minutes 2005\03-03-05 Regular Session.doc Page 4 of 14 to her business and the landlord and the Town were rectifying the problem. She added that as far as odor abatement, the yard would not be used as a "potty area," it would be used for exercise only and she said dog owners would sign an agreement that stated every effort would be made to empty out their dogs before coming to the facility. She said that the mid-day walk would also accomplish that. She explained that they planned to use a contact chemical that modifies the molecules and eliminates it. She stated that as far as noise, she was willing to be restricted to the number of hours proposed as well as a maximum number of dogs in the area (possibly six at a time). Pat Malicky, 13644 N. Saguaro Ms. Malicky stated that she was a resident of Fountain Hills and lived a couple of blocks away from the facility. She said that she had met with Ms. Patterson a couple of times because she was relatively new to the area and would like to have a place such as this for her dogs' use. She spoke in support of approving the request and said it would provide a needed amenity for the residents as well as their pets. She pointed out that currently there were animals that were left out all night long and their barking disturbed the neighbors. She said that noise would not be a factor at this facility and added that the two to one staff to animal ratio would perform an excellent job. Frank Ferrara Mr. Ferrara, President and Chief Executive Officer of the Fountain Hills Chamber of Commerce, also spoke in support of the request. He expressed the opinion that the proposal had been very well thought out and covered all of the issues that had been raised. He said he believed the facility would be a tremendous asset to the Town and added that the space needed to be occupied and the applicant would abide by the stipulations. He added that from May to October,because of the heat, animals would not be outside very often. Sandra Renberg, 15710 E. Thistle Ms. Renberg, a new resident in Town, said that prior to deciding to make Fountain Hills her family's home,they researched services that they believed were necessary, one of which was a doggie daycare facility. She said that she has a special needs dog who cannot be left alone or he barks so this type of service was very important to her. She stated that this facility played a major role in their move to the Town and added that she had met with Ms. Patterson and had found her to be a professional who was very responsible when it comes to animals and was also very concerned about her neighbors and would not allow her operation to diminish their quality of life. Bob Hahn, 1239 E. Redrock Drive Mr. Hahn advised that he has lived in Fountain Hills since 1999 and is a senior counselor for SCORE (Service Core of Retired Executives), an organization that counsels small businesses and was affiliated with the Small Business Association. He noted that a small business was defined as one with less than 100 employees and reported that over 40% of the workforce in the United States was employed by small businesses. He added that the small businesses account for 45% of the country's gross domestic products and generated over 85% of the new jobs that were created. He provided additional statistics relative to the importance, success, and positive impacts of small businesses. He discussed the hours he spent working and guiding Ms. Patterson in her business venture and requested that the Council approve the applicant's request for a Special Use Permit. Jean Hughes, 17335 E. Fontana Way Ms. Hughes, a ten-year resident of the Town and new owner of a puppy, said she was a nurse, worked long hours, and cared about people's health as well as her dog's health. She said Ms. Patterson's business would allow her to go to work and feel comfortable that her dog would be well taken care of and have the opportunity to go out during the day for exercise and play. She stated that she hoped the Council listens to all of the positive 4400 things that were being said this evening about the facility and would approve the Special Use Permit. Karen Downs, 16734 La Montana E:\BBender\Documents\Current Minutes 2005\03-03-05 Regular Session.doc Page 5 of 14 Ms. Downs advised that she lives next to the facility in question and said that she too was a recent resident who moved to the Town in May. She stated that she did not believe that anyone who lived in her complex did not believe that small businesses were good for Fountain Hills. She likened the facility to a town dump and said they all knew they needed one, but no one wanted one next to their house. She agreed that a need exists for a business of this type but requested that it not be located next to her complex. She said she has a dog and worries that if her dog hears other dogs barking, he will bark as well and so will other neighborhood dogs. She expressed concerns regarding noise and decreased property values and asked whether any member of the Council would want to live next to the proposed facility. Diane Olson, 16734 E. La Montana Ms. Olson, who also lives in the same complex as Ms. Downs, spoke in opposition to the request and noted that the play area would be located within 30 feet of her patio and her home. She expressed concerns regarding barking (the result of dogs just being together), dog fights, odors, declining property values, and effects on the quality of life. She noted that complaints regarding noise would have to be reported to the police and stated the opinion that the police had better things to do than address situation such as this. She requested that the Council protect her property values and quality of life and vote to deny the request. Nancy Souter, 16734 E. La Montana Ms. Souter, also an owner of a condominium adjacent to the facility, advised that she would never have bought her unit had a doggie daycare been in place at the time of her purchase. She said that barking would constitute an extreme annoyance and expressed concerns regarding declining property values, noise, and odors. She asked the Council not to approve the Special Use Permit. Arlon Sieve, 16734 E. La Montana Mr. Sieve, President of the La Montana Crossings Homeowners' Association, a 15-unit condominium complex, referred to slides showing the close proximity of the facility to the complex. He said that there were four units that would be drastically impacted by the facility and the owners would not be able to open their windows or enjoy their patios. He referred to a section of the Town's Zoning Ordinance and said that veterinary clinics and hospitals for animals were not allowed under the current zoning ordinance and went on to say that"animals shall not be boarded or lodged except for short periods of observation incidental to treatment; animals shall be kept within a completely closed building, which shall be constructed and maintained to prevent objectionable noise and odor outside the walls of the building. No kennels or exercise runs shall be permitted. All refuse shall be stored within the enclosed building within containers." He said that obviously that was why a Special Permit was being requested and added that if the zoning regulations said that it was not acceptable to have an exercise run in a C-2 property,to say nothing about next to a residential property, he asked how it could be appropriate to issue a permit. Mr. Sieve advised that their concerns were addressed to the Planning & Zoning Commission, namely noise, odor, aesthetics, and impact on property values. He urged the Council to deny the request. Nathan Navarro, 13606 N. Cambria Court Mr. Navarro stated that he was the Director of the Cambria Court Homeowners' Association and noted that their complex was approximately 30 feet away from the facility under discussion. He said that he concurred with the comments of the previous speakers in opposition to the issuance of the Special Use Permit and requested that the Council not approve the request. Steve Smith, 16734 La Montana Mr. Smith spoke in strong opposition to the issuance of a Special Use Permit and expressed the opinion that the proposed use was not acceptable due to the fact that it would be located next to a residential property. He said he believed it would be irresponsible on the part of the Council to allow this project to go forward. E:\BBender\Documents\Current Minutes 2005\03-03-05 Regular Session.doc Page 6 of 14 Mayor Nichols thanked all of the speakers for their comments. Councilman Kavanagh clarified that the issue under discussion was limited to the outdoor play area and said that they were not voting on the business itself, just the outdoor play area. Town Attorney Andrew McGuire concurred with Councilman Kavanagh's statement and stressed that the business was allowed by right but the outdoor use was entitled by Special Use Permit only. Councilman Kehe requested that Mr. McGuire discuss Special Use Permits, violations, and courses of action to address violations. Mr. McGuire responded that Special Use Permits cover uses that might not be allowed by right but under special conditions might be okay in certain zoning categories. He added that the Council had the opportunity to evaluate each request on a case-by-case basis. He noted that the Council also had the right to "condition the use" upon certain time limitation and standards of performance. He said if the uses were in violation of those standards, the case would be brought back before the Council for revocation or, if it was time limited,the Council might choose not to renew the Special Use Permit. In response to a question from Councilman Archambault, Ms. Zanon clarified that the C-2 zoning was under a PUD, which addressed some specific uses not wanted at that location, mostly dealing with automobile work. She noted that it did not address anything to do with veterinary clinics or anything to do with dogs (in the PUD). She added that more specifically C-2 zoning addresses what was allowed without having a Special Use Permit and farther along in that section it stated that kennels, either indoor or outdoor, were subject to a Special Use Permit. She concurred that they were not talking about kennels or veterinary clinics at this time and added that the Zoning Ordinance did not directly identify a dog daycare use. She added that it also did not address an outdoor play area but noted that a kennel was a much more intense use than a play area and therefore staff believed that a play area could fall under a Special Use Permit. Councilman Archambault MOVED to approve the Special Use Permit subject to staff's stipulations as previously stated. Councilman McMahan SECONDED the motion. Councilman Kavanagh commented that the Town has had six or seven controversial issues facing it during the eleven years he has been a resident, including a dog park that no one wanted near them. He expressed the opinion that they were talking about a mini-dog park in this area and said he could understand why the people in the area were upset. He stated that he visited the site at the invitation of the applicant and was shown the interior, which appeared to be an excellent facility that he would utilize for his dog but added that as far as the play area, he believed it was located too close to the residential developments and would negatively impact their quality of life. He stated that the facility was excellent and would serve the people but based on the significant public disapproval and the fact that the business could still function without this addition, he would vote to deny the request. Vice Mayor Nicola advised that she too was invited to tour the facility, both inside and out, and said it was a nice, well thought out business. She stated that despite the hard work that had gone into this proposal, based upon everything she had heard this evening from the neighbors, she could not support the issuance of a Special Use Permit Councilman McMahan spoke in support of the Special Use Permit and said he believed that the applicant was working to address the concerns of the residents. He stated that the too visited the facility and believed the yard could be screened with shrubbery and foliage and the applicant should do that. He added that he believed the noise and odors would also be controlled. He noted that Ms. Patterson was a very conscientious person who would be happy to work to meet and address the concerns of her neighbors. Councilman Schlum also spoke in support of the request and agrees that the applicant would work hard to address the concerns of the residents and mitigate impacts on their quality of life. He expressed the opinion that the business was a benefit to the Town and provided a much-needed amenity. He noted that the Special Use Permit provided the Council the ability to monitor the impacts and make changes in the future if warranted. E:\BBender\Documents\Current Minutes 2005\03-03-05 Regular Session.doc Page 7 of 14 Councilman Kehe stated that he was impressed with the applicant and believed she would work hard to address residents' concerns. He discussed the mitigation efforts agreed to by the applicant and said for this reason he would support the request for a Special Use Permit. Councilman Archambault concurred with the previous Councilmember's comments and agreed that if the terms associated with the Special Use Permit were violated, the permit could be pulled. He expressed the opinion that this was the type of business that the Town strived to attract and said it would be an asset. Mr. McGuire clarified that although Special Use Permits could be time limited,this particular one did not have a time limitation on it. Mayor Nichols commented that the Special Use Permit could be pulled at any time by vote of the Council and Mr.McGuire responded that if the stipulations were not complied with, the Council could revoke the permit. Mayor Nichols discussed the fact that at this year's retreat, the Council discussed the importance of supporting existing and new businesses in Town. He said he viewed this as a business that was trying hard to accommodate the residents and meet their concerns. He pointed out that the other half of the building was being used as a Church at this point in time for their daycare center. He stated that he contacted the Church to find out how they felt about having the dogs out in the other portion of the playground. He said that there were going to be more kids out there than dogs and the kids could often make more noise than the dogs. He reported that the Church had no problem with the dogs being located next to it. He stated that he would support the motion to approve the Special Use Permit and staff would monitor the business to ensure that they lived up to their commitments and if they do not, the permit would be revoked. Councilman Kavanagh commented that odor was not the problem; the problem was noise. He added that he supported businesses but not at the expense of residents and their comfort. He expressed the opinion that efforts to eliminate the noise would not be successful and the fact that children would be located next to the dogs would only negative impact the noise level even more. He noted that there appeared to be four votes in support of the Special Use Permit so with that in mind he would like to amend the Special Use Permit and place some protections in it that had been discussed but were currently not included. Councilman Kavanagh MOVED that the motion be amended to add a stipulation that the number of dogs be limited to six at one time; to require a staff person to be present outside whenever dogs were in the play area; that any dog that barked be immediately removed from the facility; that any dog that had a history of barking would be so branded a persistent barker and would never be allowed in the outside play yard, and that a six- month time limitation be placed on the Special Use Permit so that the Council could review after that time whether the operation was working out. Councilman Schlum SECONDED the motion for discussion purposes. He said he would like to hear from the applicant as to whether she was amenable to the additional stipulations. Ms. Patterson responded that her only comment on the barking stipulation was that she agreed that problem barkers would be controlled and placed inside if they became a problem. She said she did agree to the added stipulations. Councilman Kavanagh said he was going to include the block wall fence but stated that it would not accomplish anything. Councilman Archambault expressed the opinion that the barking issue was open to interpretation. Councilman Schlum asked whether Code Enforcement officers' enforcement of existing nuisance laws would to some extent address the issue at hand. Mr. McGuire expressed the opinion that if the goal was to have a control mechanism for the barking that they not refer the issue to Code Enforcement because according to code that was a criminal sanction in most cases. He added that if the goal was to control the barking, he believed the stipulations outlined by Councilman E:\BBender\Documents\Current Minutes 2005\03-03-05 Regular Session.doc Page 8 of 14 Kavanagh would suffice. He stated that if there were citizen complaints, they would be taken into consideration when the Special Use Permit came up for review. Councilman Kehe said that if Councilman Kavanagh would withdraw his motion he would support an agreed upon time limit on the Special Use Permit. He stated the opinion that six months was too short a period of time and said he would prefer one year. Councilman Kavanagh said he would support the one-year time stipulation. Councilman Kehe clarified that he was asking Councilman Kavanagh to withdraw his amendment and said he would propose a new amendment calling for a one-year renewal of the Special Use Permit. Councilman Kavanagh commented that he was willing to change the review period from six months to a year but he was not willing to remove the other stipulations as listed above. Councilman Kehe called for the question on the amendment (all of the items outlined by Councilman Kavanagh including a six-month review). A roll call vote was taken with the following results: Councilman Schlum Aye Vice Mayor Nicola Nay Councilman Kehe Nay Councilman McMahan Nay Mayor Nichols Nay Councilman Kavanagh Aye Councilman Archambault Nay Mayor Nichols said that the motion FAILED for lack of a majority vote (2 to 5). Councilman Kehe MOVED to amend the motion to call for an annual review of the Special Use Permit. Councilman McMahan SECONDED the motion, which CARRIED UNANIMOUSLY (7 to 0). Councilman Kavanagh MOVED to amend the motion to add a stipulation that a human supervisor be present whenever any dogs were in the play area, as agreed to by the applicant. Councilman Schlum SECONDED the motion, which CARRIED UNANIMOUSLY (7 to 0). Councilman Kavanagh MOVED to amend the motion to add a stipulation that limited the number of dogs outside to a maximum of six at one time as agreed to by the applicant. Councilman Schlum SECONDED the motion. Councilman Kehe spoke in opposition to adding a large number of amendments. A roll call vote was taken with the following results: Vice Mayor Nicola Nay Councilman McMahan Nay Councilman Kavanagh Aye Councilman Archambault Nay Councilman Kehe Nay Councilman Schlum Nay Mayor Nichols Nay Mayor Nichols stated that the motion FAILED for lack of a majority vote (1 to 6). Councilman Kavanagh MOVED to add a stipulation that was endorsed by the Town Attorney for enforcement purposes that dogs that bark had to be removed from the play area and persistent barkers would not be allowed in the play area at all. Mayor Nichols stated that the motion FAILED for lack of a second. E:\BBender\Documents\Current Minutes 2005\03-03-05 Regular Session.doc Page 9 of 14 Councilman Kavanagh MOVED to amend his motion to delete the need to deny persistent barkers access to the play area and add, for enforcement purposes, that barking dogs be removed from the play area. Mayor Nichols stated that the motion FAILED for lack of a second. Mayor Nichols called for the vote on the motion to approve the Special Use Permit subject to staffs stipulations and the added stipulations that the permit be reviewed on an annual basis and that a human representative be present at all times when dogs were in the play area. A roll call vote was taken with the following results: Councilman Kehe: Aye Mayor Nichols Aye Councilman McMahan Aye Vice Mayor Nicola Nay Councilman Schlum Aye Councilman Archambault Aye Councilman Kavanagh Nay Mayor Nichols stated that the motion CARRIED by majority vote (5 to 2). AGENDA ITEM #9— PUBLIC HEARING ON ORDINANCE 2005-01, A REQUEST TO AMEND THE INDUSTRIAL UNIT PLAN OF DEVELOPMENT AND IND-2 ZONING DISTRICT FOR FIREROCK CENTRE, TO ALLOW A MAXIMUM 32' BUILDING HEIGHT FOR ALL LOTS CURRENTLY RESTRICTED TO 22' MAXIMUM HEIGHT. CASE#Z2004-08. Mayor Nichols declared the public hearing open at 7:50 p.m. He stated that following a staff presentation and input from citizens, the public hearing would be closed and discussion and action would then take place under Agenda Item#10. Senior Planner Dana Burkhardt advised that the proposed amendment was initiated by a unanimous vote of the Planning and Zoning Commission at their October 14, 2004, meeting. He said that the Commissioners reviewed a project under a conceptual site plan and staff recommended stipulations to reduce building heights to conform with the ordinance and the Commission approved the case with that stipulation, initiating staffs processing of the height amendment to the Firerock IUPD. He said that the property in question affected by this were Lots 68 and 69, which were the two remaining undeveloped lots, aside from Lot 55 and bound by industrial storage uses to the west, Target Retail Center to the north and east and by Saguaro Boulevard, Fire Station #2 and the Sheriff's Posse Station to the south. He noted that the properties were currently restricted by a 22-foot height limitation. Mr. Burkhardt advised that the Planning and Zoning Commission recommended that the Council approve the amendment to allow a 28-foot maximum building height rather than a 22-foot maximum height with the exception that any buildings within 50 feet of a residentially zoned property be restricted to the current 22- foot height. Mr. Burkhardt reported that the Commissioners were also concerned with additions to the existing properties and that was the primary reason why they restricted it to a 28-foot maximum height. He noted that a 28-foot maximum building height would likely not permit an additional story. He reported that staff also recommended approval of a 28-foot building height limitation He added that the Commissioners did not feel that there would be a noticeable impact on the property adjacent to the industrial properties and noted that industrial properties were generally lower in elevation than properties in surrounding areas. He advised that the 28-foot height would also allow for a mezzanine type of structure, which was a development advantage and attractive to industrial users and employers. Mr. Burkhardt noted that staff had received three letters in opposition to the proposed amendment and a petition, copies of which had been provided to the Council. He referred to a site plan depicting the general layout of the property (three buildings) and discussed heights, grades and building heights in surrounding areas. He reported that the Council must achieve a super majority vote this evening in order to adopt the ordinance(six votes). E:\BBender\Documents\Current Minutes 2005\03-03-05 Regular Session.doc Page 10 of 14 In response to a question from the Mayor, Ms. Bender advised that there were a number of citizens who wished to speak and, in addition, four citizens submitted cards indicating their opposition to the project but did not wish to address the Council: Janet Leger, Donna Tripp,William&Debra Basore and Robert Hunkler. Rauf Moosavi, 2958 E. Carol Way, Scottsdale Mr. Moosavi, representing Moosavi Design Group, the project designer/architect, said that the proposed site identified Lot 55 on Laser Drive as having a very unique topography, an unusually deep slope from south to north toward Laser Drive. He stated that because of the grade, they were experiencing difficulties designing the project, particularly meeting ADA and code requirements. He said that Building C could be limited to 22 feet because it would be buried in the ground, Building B was the most difficult site because of the grade which was approximately 3 to 4 feet different in some areas so they were left with only 18 feet to work with for a full height building. Henry Leger, 16800 E. Saguaro Mr. Leger, representing the Firerock Homeowners' Association in the capacity of a Board member noted that there were two additional Board members present this evening that might also speak on this issue. He said that the Association strongly opposed the proposed ordinance change and submitted a petition containing 80 signatures, representing 100% of the property owners directly impacted by the proposed amendment, in opposition to the project. He discussed the affected areas and asked if everyone present who was opposed to this amendment would please stand and be recognized,which they did. Mr. Leger noted that currently the majority of the lots in the industrial park adjacent to their community were restricted to 22 feet in height and said that the restriction protected their views, minimized light pollution and created a harmonious environment. He emphasized that the current development had worked very well for a number of years. He stated the opinion that the proposed amendment would negatively impact the neighborhood resulting in a decrease in market values. He noted that the owners performed due diligence prior to purchasing their homes and were confident that existing ordinances provided adequate protection against the industrial park becoming detrimental to the residential area. He pointed out that the ordinance change would affect ten other properties and questioned why this issue was even being addressed to accommodate one particular project. He said that they were not opposed to economic development but simply expected that the owner of this particular lot in question would comply with the existing standards. He requested that the Town of Fountain Hills, through its Town Council, fulfill its duties and responsibilities and obligations to protect the rights of their property. Ms. Bender advised that two additional speakers had submitted cards in opposition to the proposed amendment but did not wish to speak: Debra Sable and Clarence Walters. Frank Finkelman, 16745 E. Saguaro Boulevard Mr. Finkelman, representing Mirage Cove Condominiums, also spoke in opposition to the proposed amendment. He noted that a similar situation had occurred in Scottsdale and their Council voted to retain the current height limitations. He commented that the grading was lower in the industrial area for U-Haul as well. He said that his group believed that the amendment should be denied as a matter of principle and trust and added that the ordinance was originally passed to give residents relief from high buildings. He spoke against setting precedent by changing rules to accommodate a single developer and noted that the existing industrial development had been almost completed in accordance with the current regulations. He asked whether the Council believed this would be the last request they would receive for a change in building height in the industrial area. Jerry Bryan, 16538 E. Saguaro Boulevard Mr. Bryan, President of the Firerock Ridge Homeowners' Association, said that his house was the first one you came to after you left Salt River Project and he was very much affected by the proposal. He stated that SRP had placed a 28-foot high pole on their property and he could not imagine a building of that height at that location. E:\BBender\Documents\Current Minutes 2005\03-03-05 Regular Session.doc Page I I of 14 He said approval of the request would result in the loss of his view of Four Peaks and encouraged the Council not to allow property values and the quality of life to decrease. Jerry Ludeman, 16522 E. Saguaro Boulevard Mr. Ludeman stated that his property was located next door to Mr. Bryan and his backyard butts up to the area of concern. He said he owns two acres of land and did not want to see the aesthetics decline or lose his views. He also expressed concerns regarding decreasing property values and said he chose to live in Fountain Hills because of its quality of life and aesthetics and requested that the Council protect those important qualities. He urged the Council to deny the applicant's request and protect Fountain Hills. Bill Bart, 16426 E. Saguaro Boulevard Mr. Bart said he watched the slide presentation and the house that they showed under construction happened to be his and if the Council approved the request, all of his views would be lost. Ernest Dapper, 16745 E. Saguaro Boulevard Mr. Dapper stated that he drove 1650 miles from Minnesota to attend the meeting this evening because this issue was extremely important to him. He said that when the U-Haul building was built across the street from his property, he never received notification and the buildings were originally painted orange but were changed to brown when complaints came forward. He added that although U-Haul made some concessions, they were still looking at a brick wall. He noted that the proposed ordinance change would affect the entire Town and all C-2 properties. He said his views had already been diminished and he was concerned that they would be additionally impacted. He urged the Council not to set a precedent,to deny the request and to"just say NO". Robert Tripp, 16410 E. Tombstone Avenue Mr. Tripp addressed the Council and spoke in opposition to the proposed ordinance amendment. He referred to documents he forwarded to the Council that contained information regarding concerns related to the proposal. He emphasized the importance of not changing an ordinance for the benefit of one developer. He added that the Planning & Zoning Commission did not give one single reason why they believed the change should be made. He stressed the importance of consistency and treating everyone the same. He asked the Council to respect the wishes of the residents and deny the request. Mr. Nuri Riazati, 8600 E. Anderson Drive, Scottsdale Mr. Riazati advised that he was the owner/developer of the project and stated the opinion that a number of misrepresentations had come forward this evening and clarified that the previous architect was fired, not because he refused to build over 22 feet, but because he was not performing as expected. He pointed out that there were four homes that could see the lot and the only view was to the southeast. He added that they would not block any views and reported that the project would generate approximately $30 million annually for the Town. Mr. Riazati discussed the fact that extra time, effort, and money had gone into designing the project with the neighbors in mind and said he believed the entire issue had been "overblown". He noted that if the project was not allowed to go forward, the land would be sold to someone else because without the extra height, the project could not succeed. He stated the opinion that the project would positively rather than negatively impact property values. He said that they had spent 18 months on this project and urged the Council to approve the request. Mayor Nichols closed the public hearing at 8:30 p.m. AGENDA ITEM #10 — CONSIDERATION OF ORDINANCE 2005-01, A REQUEST TO AMEND THE INDUSTRIAL UNIT PLAN OF DEVELOPMENT AND IND-2 ZONING DISTRICT FOR FIREROCK CENTRE, TO ALLOW A MAXIMUM 32' BUILDING HEIGHT FOR ALL LOTS CURRENTLY RESTRICTED TO 22' MAXIMUM HEIGHT. CASE#Z2004-08. E:\BBender\Documents\Current Minutes 2005\03-03-05 Regular Session.doc Page 12 of 14 Mayor Nichols said that he would entertain a motion to accept or approve Ordinance 2005-01. Mayor Nichols said that since there was no motion to approve the ordinance, the motion fails. In response to a request for clarification from the Town Attorney, Mr. McGuire stated that if the Council's direction was that no one was in favor of approving the ordinance, a negative motion should be made so that there was a record of it and closure occurred. Vice Mayor Nicola MOVED to DENY Ordinance 2005-01 and Councilman McMahan SECONDED the motion. Vice Mayor Nicola said she assumed that everything was legal because Mr. McGuire did not interrupt the process but added that she wanted to state for the record that she was very uncomfortable that a zoning ordinance amendment and changing a law was combined with a project. She said she found that distasteful but that was not why she was against the change, rather she strongly believed in protecting the Town. She added that she appreciated all of the work that the Commission and staff had done but she could not vote to support the proposed change. Councilman Kavanagh commented that the location of the industrial park in close proximity to residential development was probably a mistake from day one. He noted that a few months ago the Council denied an application to insert a residential complex into the residential area, simply because they realized the close proximity would be a bad mix. He added that they had to change the zoning in the entire area and this created the possibility that a couple of existing buildings could add an additional floor and a large lot on Saguaro near the entrance, next to the U-Haul (a particular thorn in the side of the residents despite the fact that U-Hall made a lot of concessions and tries to be a good neighbor), for that lot to have an even bigger building would be just a "slap in the face" to the residents. He added that having said that, he as a Councilmember, would certainly be open to the developer having discussions with staff relative to developing something creative whereby, for example, some of the air conditioning equipment that was usually located on the roof was moved to the ground. He said he would certainly be open to that kind of an application because it would then comply with the 22-foot coheight limitation. He urged the developer to consider this suggestion. Councilman McMahan concurred that by working creatively with staff the applicant could adapt his needs to that lot. Councilman Kehe questioned whether there should be a zoning change and expressed his concern for any attempt to change the Zoning Ordinance for "issues of the moment". He added that this was wrong and he would not support it. He stated that the residents who built their homes in that area have every right to expect that the building height would remain 22 feet. Mayor Nichols said that he could not support the zoning change either and added that although he and the members of the Council were strong supporters of business, in order for them to approve such a change a compelling reason to do so must exist. He stated that he did not see any compelling reason for the change and therefore would not vote to approve the request. Mayor Nichols called for the vote on the motion to DENY Ordinance 2005-01. Mayor Nichols stated that the motion CARRIED UNANIMOUSLY (7 to 0). AGENDA ITEM #11 - COUNCIL ASSESSMENT AND REVIEW OF THE MEETING TO IDENTIFY PROCEDURAL STRENGTHS AND WEAKNESSES AND DISCUSS POSSIBLE IMPROVEMENTS FOR FUTURE MEETINGS. There was no discussion relative to this agenda item. AGENDA ITEM #12 — COUNCIL DISCUSSION/DIRECTION TO THE TOWN MANAGER. ITEMS LISTED BELOW ARE RELATED ONLY TO THE PROPRIETY OF (i) PLACING SUCH ITEMS ON E:\BBender\Documents\Current Minutes 2005\03-03-05 Regular Session.doc Page 13 of 14 A FUTURE AGENDA FOR ACTION OR (ii) OR DIRECTING STAFF TO CONDUCT FURTHER RESEARCH AND REPORT BACK TO THE COUNCIL: There was no discussion relative to this agenda item. 14111) AGENDA ITEM#13—SUMMARY OF COUNCIL REQUESTS BY TOWN MANAGER Mr. McGuire stated that his office would follow up on the Technology Drive issue and report their findings to the speaker and the Council. He also clarified that if he did not disagree with someone who speaks from the audience, it is only because the Council has not asked him to do so, not necessarily that he agrees with the speaker. AGENDA ITEM#14—ADJOURNMENT Councilman McMahan MOVED that the Council adjourn and uncilman Schlum SECONDED the motion, which CARRIED UNANIMOUSLY. The meeting adjourne t 8:40 p.m. TOWN 0 HILLS By Wally Nic ay ATTEST AND PREPARED BY: Bevelyn J. Bernder,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 3rd day of March 2005. I further certify that the meeting was duly called and that a quorum was present. DATED this 17th day of March 2005. Bevelyn J./Bender,Town Clerk *4164 E:\BBender\Documents\Current Minutes 2005\03-03-05 Regular Session.doc Page 14 of 14