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HomeMy WebLinkAbout2005.0707.TCREM.Minutes TOWN OF FOUNTAIN HILLS MINUTES OF THE REGULAR AND EXECUTIVE SESSION OF THE FOUNTAIN HILLS TOWN COUNCIL JULY 7,2005 Mayor Nichols called the meeting to order at 5:35 p.m. AGENDA ITEM #1 — VOTE TO GO INTO EXECUTIVE SESSION: PURSUANT TO A.R.S. 38- 431.03.A.3, (i) FOR: DISCUSSIONS OR CONSULTATION FOR LEGAL ADVICE WITH THE ATTORNEY OR ATTORNEYS OF THE PUBLIC BODY. Vice Mayor Schlum MOVED to convene the Executive Session and Councilmember McMahan SECONDED the motion,which CARRIED UNANIMOUSLY(6 to 0). Councilmember Archambault MOVED to recess the Executive Session at 6:15 p.m. and Councilmember McMahan SECONDED the motion, which CARRIED UNANIMOUSLY (6 to 0). AGENDA ITEM#2—RETURN TO REGULAR SESSION Mayor Nichols reconvened the Regular Session at 6:30 p.m. Following the invocation by Councilmember Michael Archambault, roll call was taken. ROLL CALL — Present for roll call were the following members of the Fountain Hills Town Council: Councilmember Archambault, Mayor Nichols, Councilmember Kehe, Councilmember Kavanagh, Vice Mayor Schlum and Councilmember McMahan. Town Attorney Andrew McGuire, Town Manager Tim Pickering, Finance Director Julie Ghetti, Senior Planner Dana Burkhardt, Public Works Director Tom Ward, Assistant Public Works Director John Morast, Planning & Zoning Administrator Richard Turner, PIanner Kate Zanon,and Town Clerk Bev Bender were also present. SCHEDULED PUBLIC APPEARANCES/PRESENTATIONS (i) The Mayor introduced Arizona State Senator Carolyn Allen, who spoke on how her role affects Fountain Hills. Mayor Nichols stated that they were very fortunate this evening to have Arizona State Senator Carolyn Allen address the Council and audience regarding how her role affects the Town of Fountain Hills. Senator Allen provided a brief overview of how she believes her role affects the Town. She highlighted a synopsis of the last Session that took place and noted that she currently serves as the Health Chair in the Senate and was formerly the Environmental Secretary in the House. She stated the opinion that health and the environment go "hand-in-hand". She noted that the ozone remains a serious problem and Fountain Hills is impacted more than any other community in the Valley. She reported that although it was recently announced that the Valley was in compliance on ozone that was based on the one-hour standard and added that they would soon be facing the mandatory eight-hour standard and she did not believe that this standard could be met, particularly in Fountain Hills. She said that in order to meet this growing crisis, she would have to run some more environmental legislation. She noted that with the help of many others, she was instrumental in getting a medical malpractice reform bill passed, a small piece of tort reform, and relayed some personal experiences that resulted in the development of this legislation. She added that the bill that was passed requires expert testimony by someone who has actually practiced (within the last year) in the pertinent field involving the specific case at hand. L E:\BBender\Documents\Curent Minutes 2005\7-7-05 Regular and Executive Minutes.doc Page 1 of 21 Senator Allen advised that she was also able, with the help of others, to get a much needed elder abuse bill out and noted the importance of this legislation in view of the fact that many long-term facilities were being closed down. She also discussed the nurse's bill and stated that over the next five years, $5 million would be allocated towards the hiring of more teachers to train nurses. She expressed concerns regarding the loss of "institutionalized memory" and"civility" and attributed that to term limits and clean elections. She reported that during the last session, they also passed an enormous tax cut that benefits the business community and commented on current and potential positive impacts of that bill. Senator Allen provided additional information relative to the results of the last Session and expressed her willingness and desire to continue to serve, to the best of her ability, the citizens of the Town of Fountain Hills. She said she would be happy to talk and/or meet with anyone who had any questions they would like her to respond to and noted that she was proud to represent Fountain Hills in District 8th and hoped to be re- elected to that she could continue to serve in this capacity. Mayor Nichols thanked Senator Allen for her informative presentation and presented the Senator with the Seal of the Town of Fountain Hills. He encouraged the citizens of the Town to contact her with any questions and/or input. (ii) The Mayor introduced Cox Communications' Government Relations Specialist Julia Bogen, who provided a presentation on expanded services to be offered in Fountain Hills. Mayor Nichols stated that Julia Bogen, Cox Communications' Government Relations Specialist, would now make a presentation to the members of the audience. Mr. Pickering advised that Cox Communications digital phone service was coming to Fountain Hills. Ms. Bogen thanked the Mayor and members of the Council for the opportunity to address them regarding bringing Cox digital telephone to the community. She noted that her company was already replacing equipment that needed to be replaced and had initiated a communication program to make the residents aware of what was occurring. She said that door hangars would be placed in those areas where a greater degree of construction would take place and added that work crews would begin in the north and work their way south. She advised that maps showing the work proposal were available for distribution to the citizens. Ms. Bogen informed the audience that in the absence of any unforeseen delays, they expected that construction would be completed by October and possibly even sooner. She said that they would like to launch the service during the first half of 2006 or sooner. She stated for time purposes they had kept their presentation short but she was willing to respond to any questions from the Council and/or citizens. Mayor Nichols thanked Ms. Bogen for her presentation and commented on the importance of informing citizens that construction would occur over the next few months in order for Cox to install their system. Mr. Pickering noted that the construction would take place in the right-of-ways and said that this was for installation of the digital telephone lines. Councilmember Kavanagh asked whether the only people who could take advantage of the Cox Digital Telephone system were those who already have Cox television and Internet. Ms. Bogen responded that at the current time, no one in Fountain Hills was able to receive Cox Digital Telephone, but as soon as the upgrades were completed, that would change. She said that all of the residents would be notified by mail and/or via door hangars of the new services that were available. She clarified that she was speaking only about all customers who were currently serviced by Cox. Mayor Nichols thanked Ms. Bogen for her presentation. (iii) The Mayor read a proclamation declaring July as Parks and Recreation month. L E:\BBender\Documents\Current Minutes 2005\7-7-05 Regular and Executive Minutes.doc Page 2 of 21 Mayor Nichols read a proclamation into the record declaring July as Parks and Recreation Month in the Town of Fountain Hills. (Copy of the proclamation is available in the Town Clerk's Office.) At this time, Mr. Pickering asked Richard Turner, the Town's Planning&Zoning Administrator,to introduce the Town's new Senior Planner to the members of the Council. Mr. Turner introduced Mr. Bob Rodgers to the Council and noted that he came to Fountain Hills from the Town of North Redding, Massachusetts. He said that Mr. Rogers graduated from Arizona State University and served as Planning Director in North Redding. Mayor Nichols and the Council welcomed Mr. Rogers to the Town of Fountain Hills and wished him the best of luck in his new position. CALL TO THE PUBLIC Town Clerk Bev Bender advised that no requests to speak had been submitted. CONSENT AGENDA Mayor Nichols read the following consent agenda items: AGENDA ITEM #1 — CONSIDERATION OF APPROVING THE MEETING MINUTES FROM JUNE 14 AND 16,2005. AGENDA ITEM #2 — CONSIDERATION OF AN EXPENDITURE TO THE MARICOPA ASSOCIATION OF GOVERNMENTS (MAG) IN THE AMOUNT OF $23,100 FOR FOUNTAIN HILLS' SHARE OF 2005 CENSUS SURVEY COSTS. AGENDA ITEM#3—CONSIDERATION OF APPROVING A PURCHASING AGREEMENT WITH XEROX TO PURCHASE TWO (2) XEROX PHOTOCOPIERS, THROUGH THE MOHAVE EDUCATIONAL SERVICES COOPERATIVE,INC.AGREEMENT IN THE AMOUNT OF$65,282. AGENDA ITEM#4—CONSIDERATION OF THE PRELIMINARY PLAT AND FINAL PLAT FOR THE "DESERT JEWEL CONDOMINIUMS," A 2-UNIT CONDOMINIUM PROJECT, LOCATED AT 14228 E.ASHBROOK DRIVE,AKA LOT 14,BLOCK 10,FINAL PLAT 104. CASE#S2005-06. AGENDA ITEM #5 — CONSIDERATION OF PRELIMINARY PLAT AND FINAL PLAT FOR "CARDINAL CORNER, A CONDOMINIUM,"A 2-UNIT CONDOMINIUM PROJECT, LOCATED AT 16307 E.SEGUNDO DRIVE,AKA LOT 15,BLOCK 1,FINAL PLAT 206. CASE#S2005-07. AGENDA ITEM #6 — CONSIDERATION OF APPROVING A PROFESSIONAL SERVICES AGREEMENT WITH SITE DESIGN GROUP, INC., IN THE AMOUNT OF $37,060 FOR THE DESIGN OF THE SKATE PARK. AGENDA ITEM #7 — CONSIDERATION OF ORDINANCE 05-08, AMENDING THE TOWN OF FOUNTAIN HILLS' EMPLOYEE MANUAL TO AUTHORIZE CRIMINAL BACKGROUND CHECKS ON NEW HIRES, VOLUNTEERS, AND EXISTING EMPLOYEES WHO WORK WITH MINORS,DISABLED OR HOMEBOUND PERSONS. AGENDA ITEM #8 — CONSIDERATION OF ACCEPTING A BID WITHDRAWAL AND RESCINDING THE PREVIOUSLY AWARDED ANNUAL MEDIAN LANDSCAPE MAINTENANCE CONTRACT (2005-01) IN THE AMOUNT OF $232,898 TO THE GROUNDSKEEPER. E:\BBender\Documents\Current Minutes 2005\7-7-05 Regular and Executive Minutes.doc Page 3 of 21 AGENDA ITEM#9—CONSIDERATION OF APPROVING THE ANNUAL MEDIAN LANDSCAPE MAINTENANCE CONTRACT (PW2005-01) IN THE AMOUNT OF $247,250 AND AWARDING THE CONTRACT TO NICHOLS AND SONS LANDSCAPING,INC. AGENDA ITEM #10 — CONSIDERATION OF APPROVING AN INTERGOVERNMENTAL AGREEMENT (IGA) WITH THE DEPARTMENT OF PUBLIC SAFETY (DPS) TO PROVIDE LEASED SPACE IN THE NEW TOWN HALL. AGENDA ITEM #11 — CONSIDERATION OF APPROVING THE PURCHASE OF AN AERIAL LIFT PLATFORM AND ELECTRIC SIGNPOST DRIVER FROM UTILITY CRANE AND EQUIPMENT FOR THE AMOUNT OF$33,845.50. AGENDA ITEM #12 — CONSIDERATION OF APPROVING RENEWAL OF A TECHNICAL SERVICES CONTRACT WITH PHOENIX HIGHWAY SERVICES,INC.,.FOR TRAFFIC SIGNAL INSPECTION,TESTING,AND MAINTENANCE SERVICES IN THE AMOUNT OF$28,974. AGENDA ITEM #13 — CONSIDERATION OF APPROVING THE RENEWAL OF THE CONTRACT WITH BUSE PRINTING FOR THE TOWN'S "COMPASS" NEWSLETTER AND PARK & RECREATION ACTIVITY GUIDE "IN THE LOOP," FOR AN ADDITIONAL YEAR IN THE AMOUNT OF$38,734.02. AGENDA ITEM #14 — CONSIDERATION OF APPROVING THE APPOINTMENT OF MAYOR NICHOLS AS THE TOWN'S REPRESENTATIVE TO THE SCOTTSDALE CONVENTION AND VISITOR BUREAU. Councilmember Archambault MOVED to approve the Consent Agenda and Councilmember Kehe SECONDED the motion, which CARRIED UNANIMOUSLY(6-0). 4111, ACTION AGENDA AGENDA ITEM #15 — CONSIDERATION OF REAPPOINTING JOHN KOVAC III TO SERVE A TWO-YEAR TERM ON THE BOARD OF ADJUSTMENT BEGINNING JULY 1, 2005 THROUGH JANUARY 31,2007. Councilmember Kavanagh MOVED and Vice Mayor Schlum SECONDED a motion to approve the reappointment of John Kovak III to serve a two-year term on the Board of Adjustment beginning July 1, 2005 through January 31, 2007. There were no citizens or members of the Council wishing to speak on this agenda item. The motion CARRIED UNANIMOUSLY(6-0). AGENDA ITEM #16 — CONSIDERATION OF RESOLUTION 2005-42, ACCEPTING A DEVELOPMENT AGREEMENT WITH HIGH NOB, LLC, FOR "HIGH NOB ACRES," A PROPOSED 27.5-ACRE, 11-LOT SINGLE FAMILY RESIDENTIAL SUBDIVISION LOCATED ON LOT 34,BLOCK 1,FINAL PLAT, 506C,AND THE ABUTTING UNPLATTED PARCEL OF LAND TO THE WEST OF LOT 34. Mr.Pickering stated that this agenda item dealt with the Development agreement and noted that several other items(following) would have to be approved in order for the development agreement to go forward. Richard Turner addressed the Council regarding this agenda item and said that most of the items relating to Hob Nob Acres were on the April 7th agenda and the new item dealt with the Development Agreement. He E:\BBender\Documents\Current Minutes 2005\7-7-05 Regular and Executive Minutes.doc Page 4 of 21 explained that it was necessary for the Council to approve the Development Agreement for a cul-de-sac that was part of this proposal. He reported that the cul-de-sac exceeded the approved length authorized by the Subdivision Ordinance and served more lots than was allowed in accordance with the Ordinance. He noted that there was no provision in the Subdivision Ordinance for any variation or modification and therefore, in order to allow the cul-de-sac to be built as proposed, a Development Agreement was required. He stated that following the Development Agreement decision, there was rezoning, a planned unit development, and preliminary plat that also need to be addressed. Mayor Nichols requested that the applicants come forward at this time to present their remarks. David Montgomery, Montgomery Engineering, Parkview Avenue, addressed the Council and stated that his company was providing engineering services for the project. He noted that the last time they appeared before the Council they had a secondary access road going to Golden Eagle Boulevard. He reported that at that time the residents were opposed to that access and that was the reason they were requesting the Development Agreement. He explained that they were attempting to work with the neighbors to meet their concerns and that was why they were here this evening with this request. Larry Mallek, 14606 E. Golden Eagle, informed the Council that he was strongly opposed to this project from the beginning primarily due to the location of the Cerro Alto cul-de-sac extension road, which dips to about 75 feet of the homes on lots 57 and 58. He said that this road location caused an uproar among citizens within a 10-block radius and referred to a diagram showing how the proposed road would have impacted the south ridgeline parallel to Golden Eagle. He stated that he met yesterday with the developer, Jack McCoy, his attorney, and engineer to try to work out a compromise between the parties. He said that an alternative to move the proposed roads 40 to 50-feet to the north over the ridgeline had been developed and he was satisfied with that alternative. He noted that the road would be on the north ridgeline instead of the south and stated that he now supported the project. trkiw Willie (L.D.) Hamilton, 14721 E. Cerro Alto, stated that he lives next to the end of the cul-de-sac. He said that he originally spoke in opposition to this proposal but since the Mayor and Council requested that the neighbors and developer meet in an effort to arrive at a satisfactory conclusion to their concerns, an alternative proposal had been developed that met with his approval. He stated that a number of satisfactory concessions had been worked out to help the residents at the end of the cul-de-sac and reported that on lots 1 through 6, the developer had agreed to reduce the height in front from 30 feet maximum down to 20 feet, allowing for a better view down to the end of the street. He added that there was originally a house on the south side but it had now been eliminated. He noted that the current plan also called for reducing the number of lots from 14 to 11. On Lot #1, across the street from his home, they had agreed to add ten extra feet between the two houses across from him (widening the space from 40 feet to 50 feet). He said that they had also agreed to reduce the height of the #1 building at the end. He stated that the concessions had made a great difference to him and he now supported the project wholeheartedly. He added that he had talked to 11 of his neighbors who had signed a petition in support of the project or indicated that they no longer opposed it. Nancy Damone thanked the Council for being such an "open Council" to the community and said that she lived across the wash from the area in question and had lived there for many years. She stated that she was not aware of the fact that there had been some late talking and negotiations taking place and added that the bottom line filled her heart with joy. She commented that she had concerns regarding the impact on the environment and the wild life in the area and noted that once they did something, there was no turning back. She said as long as they were using a "sensitive heart" and were going about things in a way that pleased the people who lived there without impacting the beauty of the preserve,she would support the proposal. Councilmember Archambault asked how the moving of the road could impact them on this particular issue in front of them, the Development Agreement. Mr. Turner said that he did not believe that moving the road would impact the Development Agreement. Councilmember Archambault also referred to the Hillside E:\BBender\Documents\Current Minutes 2005\7-7-05 Regular and Executive Minutes.doc Page 5 of 21 Protection Easement (HPE) that the developer had agreed to provide and that each property owner would have to abide by and said that as they built on their particular lots, the rest of the property became an HPE. Mr. Turner concurred with Councilmember Archambault's comments and said that his understanding was klbre correct. Councilmember Kehe stated that one of the speakers referred to an agreement regarding the height of the houses. He said that he understood that the developer would not actually build the home.They were going to sell the lots and the individual owners would build the homes but asked whether there would be a covenant that ran with each of the properties. Mr. Montgomery responded to Councilmember Kehe's comments and said that they had met with the neighbors and agreed in principle to reduce the height on Lot 1. He noted that there was a 20-foot height at the front of the lot and stated that they were going to set an elevation on that and maintain it across the entire lot so that the roof could not exceed that elevation. He noted that they were proposing to put that on the final plat. Mayor Nichols commented that it was his understanding that the owner of the property would sell the property and asked whether this would bind the person who bought it. Mr. Montgomery stated that by placing the limitation on the plat, it would be recorded and so any new owners would be bound by it. Councilmember Kehe commented that when they moved the road from the south side of the ridge to the north side the homes would be built on a greater incline, and asked whether it was the developer's understanding that they would have to abide by the HPE in terms of disturbance. Mr. Montgomery replied that they had had discussions regarding this issue and were working with the neighbors. He noted that moving the road over the ridge would be too far from an impact point of view and so in the spirit of compromise they offered to put the road on top of the ridge and sink it lower by cutting 3 to 6-feet out of the road off the ridge where the road was located and leave a berm there so that as they came up the hill from Golden Eagle they would get to the ridge and then there would be a cut that went down the road that was basically hidden from view. He expressed the opinion that they could make this work although they did have a problem with the hillside disturbance, which pushed the building envelopes farther down the hill creating a steeper hillside. He said that this would require that envelope sizes be reduced, and they did not want to do this. He added that they felt there had to be some concessions from the Town Council to allow them to just take the envelope and if it worked here, in the spirit of cooperation,they would move it down the hill and keep the same square footage, making it part of the Development Agreement. He noted that this was their ultimate desire. In response to a question from Councilmember Kehe,Mr.Montgomery advised that no discussions had been held with Town staff that indicated that this had been agreed to. Councilmember Kehe said that when they moved down the hill, that would decrease the amount of disturbance allowed and the developer was hoping some arrangement was worked out so that this did not happen. Mr. Montgomery replied that right now, the development envelope for each lot (the six lots on the north side) was partly in a non-hillside area that did not count as hillside disturbance. He added that as soon as they moved that road farther road, and the envelope moved north,then the whole envelope became hillside and even though they were disturbing the same square footage, they were now in excess of the allotment. Councilmember Kehe commented that he understood what Mr. Montgomery was trying to say and asked staff for their input. Town Attorney Andrew McGuire stated that they did receive a request from the developer earlier today to consider flexibility on that issue and staff advised that the strongest impact would be in the preliminary plat fklior because it was going to show where on each lot the disturbance envelopes were. He noted that the developer's attorney represented today that they could continue on with the other parts of this case and E:\BBender\Documents\Current Minutes 2005\7-7-05 Regular and Executive Minutes.doc Page 6 of 21 continue the preliminary plat and deal with that issue later on. He commented that it did have a "spill over" effect on the Development Agreement and noted that Paragraph 4 of the Agreement talked about specific amounts of disturbance within each category for slope. He said that if there was a concern that there was going to be something greater than the disturbances already set forth in the Development Agreement, that would have to be an amendment to the Development Agreement in order to allow it at all and it would have to be addressed on the preliminary plat as well. He said that on the plat, when they used this method, they indicated how much disturbance there would be in each envelope. He stated that they could certainly discuss it at this stage and noted that the numbers right now were calculated according to the previous road location and this was in the Development Agreement. He added that he did not believe that the new calculations had been done because moving the road was the subject of recent conversations. He advised that in the absence of an amendment to the Development Agreement, assuming that the Agreement was approved this evening, an amendment to that section would be required to change the amount of disturbance allowed on each lot. Councilmember Kehe asked whether this was possible and said that they did not know whether the developer would agree to it; there were no numbers at this point in time and they did not know what the impact would be. Mr. McGuire commented that this was the reason they had advised the developer earlier that they could not have an approval that contained the "I'll fix it later"type of language. They needed to have an approval that contained(particularly on the preliminary plat) specific language. He added that the"spill-over effect" in the Development Agreement was something that they would have to deal with at that time (if the road moving changed the numbers in the slope categories, they would need to amend the Development Agreement with respect to that provision). Mayor Nichols commented that they could then approve the Development Agreement this evening and later on, when they came up with the final plat, the issues could be resolved. Mr. McGuire stated that if the final plat indicated that the numbers in Section 4 needed to be changed, they would have to amend the Development Agreement at that point in time. Councilmember Archambault said that he would like to hear from the attorney for the applicant. Bob Sternfels,attorney for the property owner,addressed the Council and clarified that the developer filed an application for a Development Agreement and they were willing to sign that Agreement as is. He added that they had also proposed a PUD and noted that this was their first choice (as is) because they had done what they believed the Council directed them to do. He added that recently Larry Mallek had presented his plan to change the road and they indicated, in light of what the Council had said regarding working with the neighbors, that that would be acceptable to them if that was in fact the Council's direction. He emphasized that their first goal was to get the preliminary plat approved as submitted. He added that if it was the Council's wish that they change the road, they would do so but if it was the Council's wish that the road not be changed, then they would like their preliminary plat, as submitted, approved. He said that they were proposing that the Development Agreement be approved as submitted; that the PUD be approved as submitted; and said that they would comply with whatever the Council desires on the preliminary plat. He stated that if their wish was to approve it as submitted, then they would like that but if their wish was to go back and move the road,then they would do that as well. Councilmember Archambault commented that this added a bit of a "quagmire" to the mix and asked Mr. McGuire how they could approve this and come back and amend it when they were not even sure that they were going to approve the amendment. Mr. McGuire responded that the process that they were discussing earlier was only necessary to amend the Development Agreement if the numbers came up differently to the point where there was insufficient disturbance (in Paragraph 4) for what the developer would do under the amended preliminary plat, the "move the road" version. He added that the reason they raised that issue was to make sure that everyone understood that if they continued the preliminary plat to accommodate the moving of the road, it would likely affect this provision of the Development Agreement but it might not. E:\BBender\Documents\Current Minutes 2005\7-7-05 Regular and Executive Minutes.doc Page 7 of 21 They might fall within the acceptable categories and be just fine and no amendment to the Agreement would be necessary. He noted that at the time they would bring back to the Council the preliminary plat showing the moved road they would also have to bring back an amendment to this provision if it had different disturbance requirements that what had already been set out in the Agreement. He stressed the importance of understanding that if they take the moved road, it might impact this provision and they might need to come back to the Council. Mayor Nichols commented that the Council was not going to discuss the preliminary plat this evening. That would have to be continued. Councilmember Archambault said that it was his understanding that the owner of the property was asking that the total amount of disturbance in hillside was 150,848 square feet and there was also the flat part of the property that was not counted (approximately 174,000 total). He stated that he believed he was asking that if he moved the road and slid the houses down the hill, he still wanted that amount of disturbance and the calculations being used would not be right. Mr. McGuire commented that the request was to leave the building envelope intact on the lots as submitted on the preliminary plat this evening and the difficult issue for staff to make a determination on was when they did that(slide the road to the north and the buildable area of the lots slide down the slope a bit) whether it was going to change the amount of area of.the lots that were in the 10% or greater slope category. He added that those were the areas in which they applied the amendment to achieve the HPE requirement. He said that he believed it would be impossible to determine whether these categories would work until they saw what happened with the road. He noted that just sliding the building envelopes would probably make the preliminary plat inconsistent with this provision of the Development Agreement. He said that staff wanted to raise the issue that if they did find an inconsistency when they brought the plat back to the Council, they would also be bringing back an amendment to Section 4 noting what the real disturbance was so that everyone was comfortable that that was okay to do. He added that they did not want to end up having a plat that was inconsistent with the hillside disturbance provisions in the Development Agreement. Councilmember Kehe commented that it was his understanding that Mr. Sternfels was saying that they wanted the Council to approve the current Development Agreement, which would be contrary to what the speakers from the neighborhood stated earlier. He said that they did not say that they approved the Development Agreement; they said that they approved the Development Agreement with the road being moved and with certain constraints on building heights on adjacent properties. He added that if they went ahead and approve this this evening, he would question whether they would be undoing all of the cooperative efforts that had occurred. Mr. McGuire replied that the cooperative efforts that had occurred would not be lost as they would have an extension of the disturbance about hillside disturbance. It would not be resolved as it was normally resolved. It would be continued on with the potential of an amendment to the Development Agreement. He noted that a possibility existed that the numbers would be perfectly fine or even more favorable and the developer would fall within the approved categories. He added that there was a higher likelihood that they would have to change somewhat, but not significant enough to affect the neighbors. He reiterated that staff just wanted to make sure that everyone was aware of the fact that they could not make that call until they saw that the road actually moved on the plat. Councilmember Kavanagh commented on the "worst case scenario" and stated that if they approved the two requests this evening and then for whatever reason the calculations did not work,other issues arose, he would like to know how at that point they would be different in terms of their power to control what went there then they were right now before voting on any of this. Mr. McGuire responded that he did not believe that the Council would have less authority at that point; �1rr however, the relevant points of his question was with respect to preliminary plats and final plats after that, E:\BBender\Documents\Current Minutes 2005\7-7-05 Regular and Executive Minutes.doc Page 8 of 21 those are administrative rather than legislative acts. He said that they currently had before them a legislative act of rezoning,the precursor to everything. He added that they had arguably the legislative act of approving a Development Agreement and recent referendum case law indicated that this was probably the case as well. Lor He noted that with the two legislative acts they held their strongest discretion. The weaker discretion was in the preliminary plat approval, which was administrative, however, in this case the preliminary plat could not be approved unless they amended the Development Agreement, which was an additional legislative control over the process. Councilmember Kavanagh said if they approved both the Development Agreement and the PUD this evening, and everything "falls apart" later on, he would like to know whether they could wind up in a situation where houses go in that the Council could not administratively prevent despite neighbors' opposition. Mr. McGuire responded that in that case, a plat application of some sort would have to come back to the Council; they would have to approve a preliminary plat for some sort of lots on that property. He noted that even with the rezoning, they still only had one or two lots if the side one was included. He added that they would still have a single-lot subdivision that had never been subdivided until the point that they approved the preliminary plat. He said that if the preliminary plat application came in and was inconsistent with the Development Agreement, regardless of who was in charge of the property at the time,the Agreement would run with the land. He pointed out that if a new purchaser came in with a plat application that did not coincide with Paragraph 4,did not meet the hillside requirements, they would have to reject the plat application out of conformance with the standards. He said that without the standards, it was pure HPE. He said it was possible that someone could come in and plat it without having to take advantage of any "jockeyed HPEs" and added that there was a will and a way in just about anything someone could do but this was a very steep slope area and it would be highly restrictive to do that. He noted that the reason why this method was utilized was it allowed for concentration of the disturbance in a certain area, rather than all over the lot. He expressed the opinion that a fair amount of safeguards were in place but there was no absolute guarantee. Councilmember Kavanagh stated that he wanted to avoid a situation where everything fell apart, they had these first two and someone says, "I'm putting something in there, I have to get my money out of this" and the Town winds up with six houses that were horribly situated. He asked whether this was a possibility and Mr. McGuire said that it was definitely a possibility. Councilmember Kavanagh stated the opinion that in that case,the parties needed to go back and get this worked out. Mr. Sternfels commented that there comes a balance between governmental function and private property rights. He said that they had been working on this for over a year and emphasized that property was not rezoned in Fountain Hills by a"straw vote". He added that they rezoned by reasoned land use planning skills and stated that their goal was to protect the environment and provide housing for people. He stated that there came a point in time in which a landowner had a right to develop his/her property. He noted that they had met with all of the homeowners, held numerous meetings, and met with the committees. He said that the consensus that the Council had heard this evening was that there was no disagreement between anyone with respect to the 11 lots. There was no disagreement with respect to the length of the cul-de-sac, there was no disagreement regarding the developer's intent to protect the environment, there was no disagreement with respect to the height, no disagreement among the 29 parcels that abut the property. The only disagreement that existed was with the three people down at the bottom who did not want to see a road from their house. He pointed out that in Fountain Hills there were hundreds of homes located below road grade but they did not want to see the road. He said that they were trying to accommodate those people but pretty soon it got to the point where they had to"fish or cut bait" and here they were trying to do that. He stated that they would like to proceed with the Development Agreement and emphasized that they were willing to abide by and live with it, including the environmental protections. He added that they were willing to live with and honor the PUD. He said that then they needed to all get together again and work within those limits, which they intended to do. He respectfully requested the Council's action on this request this evening. E:\BBender\Documents\Current Minutes 2005\7-7-05 Regular and Executive Minutes.doc Page 9 of 21 Councilmember Kehe commented that his problem was trying to make a decision when the Council did not have all of the information. He noted that the agreement was finally reached either yesterday or this morning, not enough time to come up with figures in terms of hillside protection and disturbance. He said that they were being asked to make a decision when they did not have all of the pertinent information. He added that the likelihood of the homes being moved back in an orderly direction was going to put them in a much steeper grade and they might be under HPE less allowable disturbance. He questioned whether it would be better to have the numbers, do what they need to do at that point in time and then make their decision. Mr. Sternfels said he did not agree that that was the way to proceed and noted that what they were requesting was what they had submitted. He questioned the appropriateness of appeasing the 3 property owners and ignoring the desires and opinions of the other 29. Councilmember Kehe responded that he was not too moved by the 29 to 3 ratio, he was more concerned about whether they had all of the necessary numbers upon which to base a decision. Mr. Sternfels expressed the opinion that they did have those numbers and added that they had worked out the numbers in the Development Agreement and in the PUD and the issue now was whether they could design something that will work within those numbers. Councilmember Archambault agreed that everyone had the right to protect their property rights and the right to look after their neighbors to ensure that they did not infringe on each other's property. He expressed the opinion that the applicant had come a long way and following careful consideration, he agreed with Mr. Sternfels in that they should start approving items and if there were some things that appear "gray", they should come back and address them. He added the opinion that if they continued this item, they were infringing on some property rights. He said that the Council needed to do their homework and get the job done. Mr. McGuire noted that as much as everyone one liked to have absolute clarity regarding what constitutes an infringement on personal property rights, this was not the case but they did know that the rule of the United States Supreme Court and every circuit court below it was that in order to have an actual take of a property or deprivation of property rights, they had to deprive the property owner of all viable economic use. He pointed out that to date there had never been a case that said, "If you can still build a house on the lot, no matter how big that lot is, that you have deprived all viable economic use". He added that he appreciated Mr. Sternfels' concern for his client's property interests and noted that the property interest was a change in the interest,not necessarily that the Council was taking away an interest. He pointed out that there was a single-family Iot there,although a big one,that was allowed today so there was viable economic use for that property. He said that he would beg to differ that a delay to another meeting to get the numbers right would cause any type of a property rights taking. He stated that he would not worry about that being a risk if the Council should decide to extend for an additional 30 days in order to obtain the information they required. Councilmember Kavanagh asked Mr. McGuire whether they could approve the Development Agreement with stipulations stating that the allowable square footage would be whatever the calculations later reflect based on the 11-single lot plan and the Hillside Protection Ordinance. He questioned whether instead of having the exact number,they could simply say, "the allowable disturbance would be that amount that would accrue with the road switched to the other side and the 11 lots as presented by the applicant and endorsed by several neighbors." Mr. McGuire responded that it was possible to do that but added that they would wind up playing a bit of a guessing game. He said that it would be gamble on the developer's part to say that based upon the strict application of the ordinance at that point they would be comfortable with that number. He added that one of the things they would have to do with such an amendment was provide for some sort of flexibility in the amount of disturbance within each slope category, because the Development Agreement specifically sets out E:\BBender\Documents\Current Minutes 2005\7-7-05 Regular and Executive Minutes.doc Page 10 of 21 that there was allowable disturbance in the areas above 10% in certain square footages by category of slope. He noted that they would have to have enough flexibility built into the amendment to address that issue and the Development Agreement language would have to be ignored in that case and they would have to apply 411114., what they would get with the strict application of the ordinance. He expressed the opinion that it would be more of a risk for the developer than for the Town. Councilmember Kavanagh commented that he was perfectly willing, in the interest of reaching a compromise regarding what the area residents and the developer wanted, to give up a certain amount of disturbance to them but said the problem he had was that he had no idea of just how much they were talking about. He noted that they might be talking about absolutely nothing and if it turned out that they needed an additional 5,000 feet of disturbance, they might all say"that's fine, for the road move that is a fair trade." He added that they were basically saying to the developer there would possibly be some leverage here, some Councilmembers were willing to do some "horse trading" on behalf of the local residents. He pointed out that that would preserve for them their two votes on the legislative issues, which were really their "hold cards",and without them, they were out of the picture and they could not broker anything. Mr. McGuire said that if the language in an amendment was to strictly apply the Subdivision Ordinance calculations on hillside disturbance, with the road moved and the 11 lots, the number that was currently in the agreement would likely decrease and cause the developer to have less disturbance. Councilmember Kavanagh added and this would be with the understanding that the developer would come back and say, "This went down too much and we want a little bit more". Mr. McGuire expressed the opinion that it might be more efficient to bring back an amendment with the preliminary plat that had the right numbers in it because then they would know if they were "horse trading away" an extra amount of disturbance as a concession to the neighbors or if it was in fact what the original ordinance would have allowed. Councilmember Kavanagh asked whether that would include passing the two items this evening and dealing with that later on or deferring all three items. He said it was his understanding that if they passed the two this evening, they would no longer be a legislative body that could "horse trade," they simply became an administrative body that stamped what staff told them. Mr. McGuire responded that the Council would lose some of their legislative discretion as soon as the zoning was complete. He said that if the provisions of the preliminary plat requirement, (that the preliminary plat be consistent with the established provisions in the Hillside Preservation code) were used and they said that that would be the maximum, anything else would have to come back as an amendment. He said that they would provide the developer with the ability to come back and amend if they wanted to go above the number and the number had not changed. Councilmember Kavanagh added, "With the stipulation that the road was being shifted as agreed upon". Mr. McGuire stated the opinion that this worked and the problem was whenever they reached the point of trying to make the shoe fit at the last moment,they usually wound up finding out later on that something needed to be addressed. He added that in this case, that thing was going to be the number. He further stated that almost everyone who had looked at this and understood the topography was comfortable that the disturbance number would go down. He said that if the disturbance number went down and there was a preliminary plat submitted that had the lot-by-lot disturbance area listed out and had a total that was more than what the Development Agreement allowed, there would have to be an amendment to the Development Agreement, there was no way around it. He stated that whether they wanted to have it as a conditional approval of the Development Agreement or have a portion of this come back, staff was willing to carry out their direction but as soon as the Development Agreement and rezoning were done, those approvals were completed and even if there was a condition on those approvals, the next person in might not need the Development Agreement, they might just need the rezoning. He commented that they always had to talk in worst case scenarios and if, for example, the developer said, "I'm tired of the process, I don't need the Development E:1BBender\Documents\Current Minutes 2005\7-7-05 Regular and Executive Minutes.doc Page 11 of 21 Agreement, I have the rezoning now and I am going to go out and replat in a way that fits the rezoning without having to deal with any of these issues,"he could do so. Councilmember Kehe MOVED that this agenda item be moved to the first meeting in August and directed the establishment of the new disturbance area based upon the movement of the extension of Cerro Alto to the north. Councilmember Kehe expressed the opinion that this would remove all of the "what ifs and questions about the Council's power". He said that they would have the numbers in front of them and if they had to adjust them they could do so at that time. Councilmember Kavanagh SECONDED the motion for the purpose of allowing the applicant the opportunity to speak on the motion. Jack McCoy, the applicant in this case, clarified that Item #19, consideration of the plat for the 11 lots, did not just recently happen. They moved from 18 lots about a year ago down to 14 and now down to 11. He said that they followed the process and met with the residents of Cerro Alto and did exactly what they were told to do. He noted that since the last meeting, Larry's plan came forward on moving the road 50 feet in the other direction. He stated that they had obviously done their homework and he had paid for engineering work to be done again in order to show that where they had the road in the first place was the best location and it did meet and accommodate all of the criteria requested by the Council. He reiterated that they had done everything they were directed to do to get to this point and the proposal "evolved." Mayor Nichols agreed that the applicant had done everything that was requested of him but added that the final compromise did not come about until about noon today and so the information contained in the Council's information packet did not deal with the final agreement that was reached between the applicant and all of the residents. He noted that the Council was being asked to make decisions on this item without having the final numbers. He said that the preliminary plat had to be redone and the road had to be moved over and then the correct numbers would be made available. Councilmember Kavanagh stated that he seconded the motion because he wanted to find out whether the applicant was willing to have the Council vote on these this evening and said that he suspected that all three would pass. He added, however, that if that happened, they were going to be tied to the disturbance that current hillside law restricted them to, which might be enough for what they wanted to do but also might not be enough. He clarified that he was talking about the road being moved and the 11 lots and said that then the new calculations would come in and the applicant might lose the amount of buildable space they had. He stated that they might decide to live with that or they might ask the Council to give them some more area because of the road concession and the Council might decide to do that or not. He commented that they would be taking a gamble if they decided to ask the Council to vote on the proposal as submitted this evening. He asked whether the applicant would like staff to do the recalculations and then address the disturbance issue when they came back with the new plat. Mr. Sternfels responded that the issue was who else did the Council want them to satisfy. Councilmember Kavanagh said that at this point,just the disturbance ordinance. Mr. Sternfels added they had been able to satisfy everyone except Mr. Mallek and now he was hearing that there might be a consensus that they adopt Mr. Mallek's plan. He said that if someone else between now and then came up with a different plan, was it the Council's direction that they follow the Mallek plan, or would they then be subject to someone else's plan. He stated that despite the fact that the road was just like every other road in Fountain Hills, Mr.Mallek did not like it and so they had indicated to the Council that if it were their decision to redo the road, they would do so. He again questioned whether they would be subject to additional plans between now and August 1. He said that if they knew that there was finality now, then he thought that as a group they should all move together to make that happen. quir E:\BBender\Documents\Current Minutes 2005\7-7-05 Regular and Executive Minutes.doc Page 12 of 21 Mayor Nichols commented that they had already stated that they recognized the effort that the applicant had put forth regarding Cerro Alto and Golden Eagle residents and said that that was the plan that they were going to work with. He added that all they were asking was to get the detailed numbers put together so they could make an informed decision at the first meeting in August. Mr. Sternfels said he appreciated that and stated that it was the developer's intent to move forward the best way they could and submitted for their consideration that the Council approve the Development Agreement as is, approve the PUD, continue the preliminary map knowing that they are going to come back if necessary for an amendment on the agreement because that will give the Council legislative control. Vice Mayor Schlum noted that Councilmember Kavanagh was looking out for the applicant's interests in making sure that he was willing to accept the agreement, which cemented some commitments on both parts. He said that once an agreement was in place, the Council might or might not agree to change it. He commended the land owner and the neighbors on getting together and stated that what they worked out was not reflected in the current numbers and they would very likely change (Paragraph 4) but the applicant wanted the Council to assume that they would not and allow him to move through this process onto the plat. He noted that they were now considering a continuance for that just because they knew the numbers were likely going to be different but they did maintain the legislative ability to address that when and if an amendment was needed. He commented that he was comfortable with moving this forward and believed everyone understood the risks involved. Councilmember McMahan also commended everyone involved on the wonderful spirit of cooperation that had been demonstrated. He said he also supported moving ahead on the issues. Mayor Nichols called the question on the continuance and the motion FAILED for lack of a majority. Councilmember Kavanagh MOVED that the Council accept the Development Agreement with the stipulation that the total disturbance was not to exceed the square footage when the calculation was done with %or the road moved as presented tonight with 11 lots. Mayor Nichols SECONDED the motion. Mr. McGuire asked whether the motion was for conditional approval of the Development Agreement and said it would stay as is and not be amended. Councilmember Kavanagh said it was the Development Agreement as was but the total allowable disturbance was no longer calculated using the old plan. He added that the total allowable disturbance would be whatever the calculation was with the road moved to where it was said it would be moved tonight on this current 11-lot layout. Mr. McGuire said that the only vagueness in it was that they did not already have the moved 11-lot plat. Councilmember Kavanagh said then it should state "an 11-lot plat". Mr. McGuire stated that they could certainly make that work and said he understood that Councilmember Kavanagh was trying to preserve some legislative control in changing the Development Agreement if necessary. He said that he believed that this would get them there but he could not guarantee it. Mayor Nichols called for the vote. Councilmember Kehe stated that it was his understanding that they were voting on the Development Agreement as published in their paperwork. Councilmember Kavanagh clarified that it was with the changes (changes to Paragraph 4) to say that the total amount of disturbance allowed by the shifted 1 l-lot subdivision would be as it was in the subdivision ordinance, whatever that was. Mr. McGuire added that as far as the road, it would be in accordance with the altered road placement as negotiated. He concurred that they were E:\BBender\Docutnents\Current Minutes 2005\7-7-05 Regular and Executive Minutes.doc Page 13 of 21 voting on an amended Development Agreement that showed the road moving 50-feet to the north and disturbance would be at a maximum of what is provided by HPE. Mr. McGuire noted that this number would no longer be the maximum; the maximum would be whatever the subdivision ordinance said. Councilmember Kavanagh added that this was also with the understanding that a majority of the Council might be amenable to some additional disturbance based on the good faith efforts of the developer to move the road in an effort to cooperate with the residents. A roll call vote was taken with the following results: Vice Mayor Schlum Aye Councilmember McMahan Aye Councilmember Archambault Aye Councilmember Kehe Nay Councilmember Kavanagh Aye Mayor Nichols Aye The motion CARRIED by majority vote(5-1). AGENDA ITEM #17 — PUBLIC HEARING REGARDING ORDINANCE 05-02, WHICH WOULD AMEND THE "OFFICIAL ZONING DISTRICTS MAP"FOR THE TOWN OF FOUNTAIN HILLS TO REZONE LOT 34, BLOCK 1, FINAL PLAT 506C, AND THE ABUTTING UNPLATTED PARCEL OF LAND TO THE WEST OF LOT 34 FROM THE "R1-35 AND R1-43" SINGLE- FAMILY ZONING DISTRICTS TO A "R1-35 PUD," SINGLE-FAMILY PLANNED UNIT DEVELOPMENT ZONING DESIGNATION. CASE#Z2004.10. Mayor Nichols declared the public hearing open at 8:06 p.m. There were no citizens present wishing to speak and the Mayor declared the public hearing closed at 8:07 p.m. AGENDA ITEM #18 — CONSIDERATION OF ORDINANCE 05-02, WHICH WOULD AMEND THE "OFFICIAL ZONING DISTRICTS MAP" FOR THE TOWN OF FOUNTAIN HILLS TO REZONE LOT 34, BLOCK 1, FINAL PLAT 506C, AND THE ABUTTING UNPLATTED PARCEL OF LAND TO THE WEST OF LOT 34 FROM "R1-35 & R1-43" SINGLE-FAMILY ZONING DISTRICTS TO A "R1-35 PUD," SINGLE-FAMILY PLANNED UNIT DEVELOPMENT ZONING DESIGNATION. CASE#Z2004-10. Councilmember McMahan MOVED to approve Ordinance 05-02 and Councilmember Kavanagh SECONDED the motion. Councilmember Kavanagh asked whether any manipulation of this was required in order to keep the Council consistent with their obvious goal. Mr. McGuire replied that with the obvious goal being August 1 for approval of a preliminary plat that conformed and an amendment to the Development Agreement to put language in that tied it all down, the rezoning ordinance would become effective 30 days from now and so if they wanted to put a safety mechanism in place,they could enact an effective date later than the 30 days. He stated that, in the end,with a legislative decision such as this, if all of this fell apart within the next month, the only tool they had was their ability to rescind the ordinance prior to its effective date. He expressed the opinion that Mr. Sternfels would not be comfortable with a delayed effective date although he did not see this having any significant impact on them. He added that he was talking about increasing the effective date from 30 to 60 days. E:\BBender\Documents\Current Minutes 2005\7-7-05 Regular and Executive Minutes.doc Page 14 of 21 Councilmember Kavanagh MOVED to amend the motion to indicate that the effective date of the ordinance would change from 30 to 60 days from the date of approval. Mr. Sternfels advised that he did not have a problem with this revision. The motion to amend the motion CARRIED UNANIMOUSLY(6-0). Councilmember Kavanagh MOVED to accept the ordinance with the amendment and Vice Mayor Schlum SECONDED the motion (to approve Ordinance 05-02 as amended, which has an effective date of 60 days from approval). The motion CARRIED UNANIMOUSLY(6-0). AGENDA ITEM #19 — CONSIDERATION OF THE PRELIMINARY PLAT FOR "HIGH NOB ACRES", AN 11-LOT SINGLE-FAMILY RESIDENTIAL SUBDIVISION LOCATED ON LOT 34, BLOCK 1, FINAL PLAT 506-C, AND THE ABUTTING UNPLATTED PARCEL OF LAND LOCATED TO THE WEST OF LOT 34. CASE#S2004-22. Mayor Nichols advised that this agenda item could not be taken care of this evening because the preliminary plat had to be redone. Councilmember Archambault MOVED to continue Agenda Item #19 to the August 151 meeting and Councilmember McMahan SECONDED the motion,which CARRIED UNANIMOUSLY(6-0). Mayor Nichols commended everyone involved in this matter for working together in the spirit of cooperation in order to achieve the best solution for the entire Town. AGENDA ITEM #20- CONSIDERATION OF APPROVING 1.1% ROOF AREA OF A BUILDING TO EXCEED 30 FEET IN HEIGHT BY 2 FEET 6 INCHES AS DEPICTED ON THE SITE PLAN FOR PEAKS FITNESS, A PROPOSED ATHLETIC CLUB AND FITNESS CENTER, TO BE LOCATED AT 12454 N.SAGUARO BLVD.,AKA PARCEL 12 SUBDIVISION,LOT 5. Planner Kate Zanon addressed the Council regarding this agenda item and said that the project was a proposed athletic club and fitness center facility to be located on Saguaro Boulevard, between El Lago and Kiwanis Drive. She noted that the property was located in the Town Center Commercial Zoning District. Ms. Zanon noted that the project includes 21,503 square feet of building area and stated that all of the footage would be used for the fitness center. She added that there would also be a 9,000 square foot pool and outdoor area. She reported that Zoning Ordinance 18.14 states that the Town Council can approve buildings to 40-feet from natural grade for movie theaters or architectural features that improve the elevation of the building in this District. She noted that the height of the proposed building was approximately 32 feet 6 inches at the highest point, with approximately 267.9 square feet or 1.1% of the total roof area exceeding 30 feet. She pointed out that two small areas were exceeding. One was approximately 149 square feet,reaching to 32 feet 6 inches and the other 119 square feet reaching 31 feet 4 inches. Ms. Zanon stated that the average building height was approximately 21 feet 9 inches, well below the Town's 30-foot height limitation. Ms. Zanon said that at the Planning and Zoning Commission review, approximately 1,880 square feet of the building area exceeded 30 feet in height, which equaled approximately 7.5% of the total roof area. She reported that since that meeting, the applicant had reduced the over-height area to the minimum that was felt practical to achieve the workable ceiling heights, structure, and mechanical screening. She added that the Commission recommended approval of the concept plan with the over-height building area by a 5 to 1 vote and said that staff also recommended approval of the proposal with the one stipulation,"1. The development would occur in accordance with the Plan of Development titled "Peaks Fitness", dated 04/8/2005, with the amendment by Brissette Architects dated 06/24/2005 received 06/28/2005." E:\BBender\Documents\Current Minutes 2005\7-7-05 Regular and Executive Minutes.doc Page 15 of 21 Councilmember McMahan MOVED to accept the height variance as requested and Councilmember McMahan SECONDED the motion. ,, Ross Suozzi, the applicant in this case, referred to the drawing displayed in the Council Chambers and explained his proposal in more detail to the members of the Council. He pointed out the areas where the height of the buildings would exceed the current height limitation. He noted that the two areas they were talking about were approximately 12 inches wide and were arched elevations that served as architectural assistance for the buildings to block out some of the mechanical equipment located on the roof. He said that they felt this was necessary for the overall aesthetics of the building. In response to a question from Councilmember Kehe, Ron Bursett, the architect for the project, advised that the two parapets occurring over the sloped natural grade were in the range of 25 to 27 feet in length. He noted that they broke the vertical envelope and added that the expression of the building was punctuated by the soft curving forms playing an elevation against the floor plan and functioned as a penthouse area to hide the mechanical equipment where the apex of the arches occur. He added that they were trying to vary form and function. Councilmember Kavanagh noted that only a portion of the curved parapet went above, only at the center mound. Councilmember Kehe commented that according to the information received by the Council, from the southwest vantage point,the additional height would block the view of the lake. He said that he had received a number of complaints from citizens regarding this issue. He pointed out that if one were in the lower right hand corner, approximately "Gunsight", looking toward the lake, the parapets would indeed be in the line of vision according to residents who had voiced the complaints. Mr. Bursett responded that if you looked at it straight on, you were only looking at approximately 14-square feet, and as you went completely at a 90-degree angle to the forms, there were the figures that were represented in the packets. Councilmember Kehe said that the information indicated 185 square feet from a southwest view and Mr. Bursett stated that he believed that was from maximum exposure. Councilmember Kehe further stated that the two parapets that were one-foot wide must each be 90-square feet and Mr. Bursett referred to a diagram contained in the information that listed exact footages. Bruce Tominello, 16208 Sunridge Drive,a member of the club in its present location,said that he would love to see the building built. He expressed the opinion that it would be an asset to the Town and added that it was a wonderful looking piece of architecture and ranked up with the Town Hall. He added that the 1.1% is an incredibly small variance for them to be asking for and noted that it was originally much larger but in the spirit of cooperation they reduced it to a reasonable amount and were able to hide the appearance of mechanical equipment as well. He requested that the Council support the request and overlook the minor loss of view in a corner that this might result in in order to obtain a first-class facility in the Town. Frank Ferrara, Chief Executive Officer of the Chamber of Hills Chamber of Commerce, representing approximately 500 residents, stated that they supported this project, which was architecturally sound and needed in the community. He said that he doubted that the request for the minor variance would result in long-range negative impacts. He asked the Council to approve this request in keeping with the spirit of the retreat that the Council conducted in January where one of the key issues was to be a business-friendly Council. Councilmember Kehe commented that a similar situation regarding height was raised in the recent past and the issue was raised as to whether a person had the correct expectation to assume that any future development in the area would be built in accordance with the Town's ordinances. He said that in that particular case, with respect to an industrial zone, the fringes of that were residential and the raising of the height was again an issue of blocking views. He reiterated the fact that he had received a number of calls E:\BBender\Documents\Cun-ent Minutes 2005\7-7-05 Regular and Executive Minutes.doc Page 16 of 21 from citizens who lived southwest of that area who were concerned that their views would be blocked and asked whether their expectations should be upheld and the ordinances be adhered to. He noted that he was very much supportive of the project and would certainly vote for it if it were not for the 2.6-feet. He law expressed the opinion that the success of the project did not depend on the 2.6-feet and said it would be a successful project if the architect could find a way to lower the building height by that amount. He stated that he would then support the request knowing that the Council upheld the ordinance. He added that he could not in good conscience support it now without listening to those who would be impacted and therefore, could not support the request. Councilmember Kavanagh advised that he previously voted against this request because the last plan that was presented to the Council contained a significant amount of over-height. He stated that he believed that the current plan contained a minimal amount of over-height and noted that the rest of the building,except for the small portion, was below limitations. He said that if he lived in the area, he would much rather"roll the dice" and let this building go in with a very small section that was a slight amount higher rather than risking another design with additional heights. He commented that he was sensitive to the concerns of the residents in the area based upon what was transpiring with the proposed nursing home project and what was going to happen at Plaza Fountainside, which he did not support, but added that in this case he believed it was in their best interest to allow this minimal addition and minor concession. Mayor Nichols called the question. The motion CARRIED by majority vote(5-1)with Councilmember Kehe voting nay. AGENDA ITEM #21 — CONSIDERATION OF THE SITE PLAN FOR AUTOMOBILE SALES IN THE C-3 ZONING DISTRICT FOR "COOKE MOTORS," LOCATED AT 11855-11857 N. SAGUARO BLVD.,AKA PLAT 205,BLOCK 12,LOT 12. CASE#PD2005-01. Planning and Zoning Administrator Richard Turner addressed the Council regarding this agenda item. Mr. Iwo Turner stated that the property was located on the north side of Saguaro Boulevard, one lot west of Panorama Drive. He noted that this was an existing car sales business in C-3 Zoning and the owner wished to amend the previously approved site plan by tearing down one of two existing buildings on the site and increase the size of the vehicle display. He noted that the present use of the site had not always been consistent with the previously approved plan, at times vehicles had been displayed in locations not approved for parking. He explained that approval of this application would resolve that issue. He reported that on May 26th, the Planning and Zoning Commission unanimously recommended approval of the applications. He stated that the proposed development appeared to be compatible with other uses in the area and therefore staff recommended approval subject to the conditions contained in the staff report, including the 10-foot wide landscape buffer area as identified in the site plan, front and rear, shall be landscaped and not used for vehicle display or parking. Submittal and approval of the landscape plan; the curb stops at the north and south sides of the site in the proposed landscaped area shall be removed. For public safety reasons, until the west building was removed, vehicles should not be parked in the aisle between the buildings. Mayor Nichols thanked Mr.Turner for his overview. Councilmember McMahan MOVED and Councilmember Archambault SECONDED a motion to approve the site plan as presented subject to staff's stipulations. Councilmember Archambault commented that it was his understanding that the cars would have to sit back behind the 10-foot landscape easement and Mr. Turner concurred that this was in fact the case. Frank Ferrara,CEO of the Chamber of Commerce, spoke in support of this request and expressed the opinion that the project would be more aesthetically pleasing. He urged the Council to approve the request. E:\BBender\Documents\Current Minutes 2005\7-7-05 Regular and Executive Minutes.doc Page 17 of 21 The motion CARRIED UNANIMOUSLY by the Council (6-0). AGENDA ITEM #22 — CONSIDERATION OF ORDINANCE 05-07, LEVYING UPON THE fir, ASSESSED VALUATION OF THE PROPERTY WITHIN THE TOWN OF FOUNTAIN HILLS, SUBJECT TO TAXATION,A CERTAIN SUM UPON EACH ONE HUNDRED DOLLARS ($100.00) OF VALUATION SUFFICIENT TO RAISE THE AMOUNTS ESTIMATED TO BE REQUIRED IN THE ANNUAL BUDGET, TO PROVIDE FUNDS FOR BOND REDEMPTIONS, FOR THE PURPOSE OF PAYING INTEREST UPON BONDED INDEBTEDNESS, ALL FOR THE FISCAL YEAR ENDING THE 30" OF JUNE 2006. Finance Director Julie Ghetti addressed the Council regarding this agenda item. Ms. Ghetti noted that since 1991 the voters of Fountain Hills had approved the issuance of bonds for capital projects, specifically for road paving, construction of the library/museum, and for open space. She said that the bonds were repaid each year through property owners' property tax and the approval of Ordinance 05-07 would authorize Maricopa County to levy upon each property owner the amount necessary to make those annual debt payments. She reported that staff estimated the amount to be approximately 35 cents per hundred or$35.00 or$100,000 of assessed value. She added that last year it was 42 cents,representing a decrease of 7 cents. Councilmember Archambault MOVED to approve Ordinance 05-07 and Councilmember Kavanagh SECONDED the motion. Councilmember Kavanagh commended staff for clarifying that the tax that was being levied was a self- imposed tax, voted in by the citizens of the Town. The motion CARRIED UNANIMOUSLY(6-0). AGENDA ITEM #23 — QUARTERLY UPDATE OF THE TOWN MANAGER ON PROGRESS OF IMPLEMENTING THE COUNCIL'S GOALS AND TO INCLUDE AN UPDATE ON THE viw STRATEGIC PLAN BY THE TECHNICAL ADVISORY COMMITTEE. Mr. Pickering addressed the Council relative to this agenda item and said that the Council was aware of the status of most of the goals identified by them. He stated that their water analysis, which was a financial impact, had been completed; the Succession Plan that the Council adopted in the plan had also been completed. He added that the Fire Service Contingency Plan was about 95%complete and noted that mutual agreements had been passed with Scottsdale and Rio Verde, and they were very close to having a mutual aid agreement with Fort McDowell. He stated that information had also been provided to the Council on a contingency if they were to either contract out with a different entity or provide their own service through a municipal fire department. He noted that both those costs were more than what they currently had but either could be done. He added that the State Trust Land was the project that was probably the least complete but that was under the State's control. He discussed staff's efforts to work closely with the State on this issue and reported that the next step as for the water district to be expanded and after that was done, the State would choose a "permittee" to plan the land. He noted that the Town wanted to work very closely with this person and had hired individuals to begin planning and working closely with the State and the"permittee". Mr. Pickering advised that he would be happy to respond to any questions regarding the above issues and/or the Strategic Plan prior to having the Technical Advisory Committee (TAC) provide their update to the Council. Roger Riggert, President of the Fountain Hills Civic Association and a member of the Strategic Planning Technical Advisory Committee (TAC) advised that the Civic Association in the past had conducted several Town Hall sessions and among the good things that came out of those were Golden Eagle Park, the completion of Palisades to Shea and the construction of the Community Center. He advised that this time 11101, E:\BBender\Documents\Current Minutes 2005\7-7-05 Regular and Executive Minutes.doc Page 18 of 21 around the Association was serving in the role as a member of TAC. He encouraged everyone listening to sign up for the next Town Hail on August 13th. Lor Mr. Riggert stated that they had experienced many successes in the citizen-driven planning process and looked forward to more successes as they tackled challenges head on. He advised that Phillip Blackerby, leader of TAC, would outline the success to date, goals to be tackled, and challenges they faced as they moved forward. Mr. Blackerby, Blackerby Associates, noted that last year the Council approved a contract to allow his company to help facilitate as project manager for this project. He thanked the members of TAC for their dedication and effort and Councilmember Kehe for his service on TAC. He extended appreciation to staff and other members who had provided assistance. He announced that approximately 200 people attended the "kick off" event in January and said that they conducted 35+ interviews with civic leaders and in January/February a youth visioning institute was held. He added that in March approximately 50 high school students participated and everyone gained because of that process. He referred to the "Where We Are Now" report that was developed and distributed throughout Town. He reported that at Town Hall I they had over 270 participants for dinner and commented on the great speakers who gave presentations. He noted that the Youth Visioning Institute participants presented posters and Dan Foster as well as Curt Dunham spoke about Fountain Hills—both then and now. He added that Catherine Connolly, Executive Director of the League of Arizona Cities and Towns was a keynote speaker as well. Mr. Blackerby reported that over 175 participants attended the Town Hall the next day, Saturday, and noted that they had volunteer facilitators and small group discussions took place that covered issues such as things they liked, things they would change,core values, vision components and strategies for vision. He informed the Council that the evaluation results showed that 89 to 95% of the participants were satisfied with the process, 36 to 54% said it was excellent, 1 to 3% expressed some dissatisfaction and 74% actually responded to the evaluation. He reported that they were currently working on the Strategic Choices Report and said that they would prepare the public for Town Hall II, to be held on August 13th, and he encouraged the public to attend the session, which would be held at the Community Center. He noted that it would be a one-day long session. He added that the Strategic Choices Report would talk about the ten focus areas and scenarios had been developed within those areas that were the actual Strategic Choices they would be asking the community to make. Mr. Blackerby advised that a newsletter was also being developed that should come out within the next week and stated that they were attempting to better educate the public about this process. He noted that they would be holding four Informed Choices Workshops, held from 6 p.m. to 7:30 p.m. every Wednesday starting July 13th when town Finances would be the subject of discussion. He added that Charter Government would be covered on July 20th, Architectural 7 View Controls on July 27th and Parks Standards on August 3rd. He invited the citizens and members of the Council to attend the sessions. He said that flyers would be distributed to the members of the audience this evening advising them of the workshops. He discussed the August 13th Town Hall II and stated that they would discuss the challenges ahead and educate citizens on the issues. He added that they were also working on developing ways to engage the citizenry to participate after the process had been completed and they moved toward the more difficult task of implementation. He reported that the entire yearlong process was a prelude to the real work, the implementation. He indicated his willingness to respond to questions from the Council. Councilmember Kavanagh asked whether they had developed the methodologies with the random sample and Mr. Blackerby responded that there was a Request for Proposals on the survey that would be coming out shortly. He said that the Council would have the opportunity to look at that. He stated that they intended to ask the proposers to tell them how they were going to design it. He added that they would have that before they moved forward. Councilmember Kavanagh asked if a copy of the proposal could be forwarded to the Council once it had been drafted and Mr. Pickering advised that once the proposal had been received, it E:\BBender\Documents\Current Minutes 2005\7-7-05 Regular and Executive Minutes.doc Page 19 of 21 would be forwarded to the Council for approval. Councilmember Kavanagh clarified that he wanted to see what was being sent out to the companies and Mr. Pickering commented that all it would say is that we wanted them to tell us what the methodology was going to be. He added that the Council could review it but mowit really would not provide any insight into the methodology. Mayor Nichols thanked Mr. Blackerby and all of the volunteers in Town who had devoted many hours to this project. Mr. Blackerby thanked the Mayor and noted that several thousand hours of volunteer time had been devoted to this project. Mayor Nichols stated that one of the active participants on TAC was Vice Mayor Nicola and he acknowledged the fact that she had been an integral part of that process. AGENDA ITEM 1124 — DISCSUSION WITH POSSIBLE ACTION REGARDING THE CURRENT COUNCIL VACANCY. Mr. Pickering noted that the Council previously discussed how they were going to fill the vacancy and said that following research, staff had prepared information on this issue. He stated that they had reached the point where they needed to make a decision as to whether to move forward or wait until an election took place and allow the voters to make that decision. He requested direction from the Council on this matter. Councilmember Kavanagh advised that he had been approached by a number of people who stated that because an election was coming up in the near future,they believed that the appointment of anyone to fill the slot at this time would provide that person with an unfair advantage. He agreed that there was a certain amount of truth associated with that thinking. He added that since there were no known pressing issues coming up between now and the election, and because they had been able to function with six members of the Council without lowering the bar when approving motions, he would not have a problem waiting to fill the vacancy at the upcoming 2006 election when the voters could choose their representative. Mayor Nichols concurred with Councilmember Kavanagh's comments and noted that the earliest someone could be seated on the Council if they went forward with an appointment would be sometime in September. He pointed out that filing papers to run in the March 2006 election would take place in December. He expressed the opinion that they should postpone the appointment and let the people decide who would sit on the Council. Councilmember Archambault agreed with the previous speakers' comments and noted the extensive training that would have to be provided to assist someone in serving for such a minimum amount of time. He agreed that no one should be given an unfair advantage in the upcoming elections. Vice Mayor Schlum said that an unfortunate event had occurred with the loss of Vice Mayor Nicola and expressed the opinion that it made more sense to wait until the next ensuing election and let the voters decide who the next member of the Council would be. Councilmember Kavanagh added that also, under this scenario, they would have the option of appointing in March whoever the first place candidate is in the initial election and then the actual vacancy time would be reduced. He said that that person would obviously be the clear choice of the people. Councilmember Kehe commented that when talking about the candidate who received the most votes, they were talking only about someone who received 51% of the votes cast and Councilmember Kavanagh concurred and added that this was only a suggestion. Mr. Pickering advised that staff understood the direction provided by the Council and thanked them for their input. E:\BBender\Documents\Current Minutes 2005\7-7-05 Regular and Executive Minutes.doc Page 20 of 21 AGENDA ITEM #25 - 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 #26 - COUNCIL DISCUSSION/DIRECTION TO THE TOWN MANAGER. ITEMS LISTED BELOW ARE RELATED ONLY TO THE PROPRIETY OF (i) PLACING SUCH ITEMS ON A FUTURE AGENDA FOR ACTION OR (ii) OR DIRECTING STAFF TO CONDUCT FURTHER RESEARCH AND REPORT BACK TO THE COUNCIL: NONE. There was no discussion relative to this agenda item. AGENDA ITEM#27—SUMMARY OF COUNCIL REQUESTS BY TOWN MANAGER Mr. Pickering advised that he had received direction regarding the Development Agreement and the preliminary plat and would follow up on these issues. AGENDA ITEM#28—ADJOURNMENT Councilmember Kehe MOVED that the Council adjourn and Councilmember McMahan SECONDED the motion, which CARRIED UNANIMOUSLY. The meeting adjourned at 8:53 p.m. TOWN OF NTAIN HILLS ",-------, , ,... ,/ ,.,, By 7..,..i. _._1 '_ Wally Nicliol(Mayor ATTEST AND PEPARED BY: Bevelyn J/ e er,Town Clerk CERTIFICATION I hereby certify that the foregoing minutes are a true and correct copy of the minutes of the Regular and Executive Session held by the Town Council of Fountain Hills on the 7th day of July 2005. I further certify that the meeting was duly called and that a quorum was present. DATED this 4th day of August 2005 16 Bevelyn J. i nde ,Town Clerk L E:\RBender\Documents\Current Minutes 2005\7-7-05 Regular and Executive Minutes.doc Page 21 of 21