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HomeMy WebLinkAbout2011.0106.TCREM.Minutesz:\council packets\2011\r1-20-11\110106m.docx Page 1 of 15 TOWN OF FOUNTAIN HILLS MINUTES OF THE EXECUTIVE AND REGULAR SESSION OF THE FOUNTAIN HILLS TOWN COUNCIL JANUARY 6, 2011 EXECUTIVE SESSION AGENDA CALL TO ORDER Mayor Schlum called the Executive Session to order at 5:35 p.m. held in the Fountain Conference Room at Town Hall. AGENDA ITEM #1 – ROLL CALL AND VOTE TO GO INTO EXECUTIVE SESSION: PURSUANT TO A.R.S. REV. STAT. §38-431.03(A)(3), DISCUSSION OR CONSULTATION FOR LEGAL ADVICE WITH THE ATTORNEY OR ATTORNEYS OF THE PUBLIC BODY (SPECIFICALLY, CONTRACT RAMIFICATIONS AND OTHER LEGAL ISSUES RELATED TO PENDING REFERENDUM). ROLL CALL: Present for roll call were the following members of the Fountain Hills Town Council: Mayor Schlum, Vice Mayor Brown, Councilmember Contino, Councilmember Leger, Councilmember Hansen, Councilmember Dickey and Councilmember Elkie. Town Manager Rick Davis, Town Attorney Andrew McGuire and Town Clerk Bev Bender were also present. Mayor Schlum MOVED to enter into the Executive Session at 5:35 p.m. and Councilmember Hansen SECONDED the motion, which CARRIED UNANIMOUSLY (7-0). AGENDA ITEM #2 – ADJOURN TO THE REGULAR SESSION Vice Mayor Brown MOVED to adjourn the Executive Session and Councilmember Elkie SECONDED the motion, which CARRIED UNANIMOUSLY (7-0). The Executive Session adjourned at 6:12 p.m. REGULAR SESSION AGENDA * CALL TO ORDER AND PLEDGE OF ALLEGIANCE Mayor Schlum called the meeting to order at 6:30 p.m. in the Fountain Hills Town Hall Council Chambers. * INVOCATION – Dr. Jim Ricketts, North Chapel * ROLL CALL Present for roll call were the following members of the City Council: Mayor Schlum, Vice Mayor Brown Councilmember Contino, Councilmember Leger, Councilmember Elkie, Councilmember Hansen and Councilmember Dickey. Town Manager Rick Davis, Town Attorney Andrew McGuire and Town Clerk Bev Bender were also present. * MAYOR’S REPORT None. * SCHEDULED PUBLIC APPEARANCES/PRESENTATIONS z:\council packets\2011\r1-20-11\110106m.docx Page 2 of 15 (i) Recognition of firefighters and staff involved in a recent life saving event at the Community Center. Mayor Schlum stated that on November 18, 2010, a Fountain Hills resident that was in attendance at a Community Center event began to feel ill. She did not want anyone to activate the 9-1-1 system. An astute staff member convinced the resident to allow him to call 9-1-1 on her behalf. A Fountain Hills Fire Department crew from Station 1 responded quickly to the scene. The patient was in mild distress and did not really show any serious symptoms upon their arrival. Diagnostic medical equipment was attached to the patient and an evaluation was made. The state of the art equipment, along with the emergency responders' training, demonstrated that the patient was having a significant heart attack. Appropriate treatment was quickly initiated and the patient was taken to the hospital by ambulance. Because the Fountain Hills Fire Department is equipped with the latest technology that helps to identify problems early and transmits patient data to Doctors at the hospital, the patient as able to bypass the Emergency Department and go directly to the Catheterization Lab for definitive treatment. While being treated in the lab, the patient went into cardiac arrest and was resuscitated successfully. The patient was then taken to the ICU in stable condition. This Fountain Hills resident is alive today because everyone that was involved in the "Chain of Survival" did their jobs extremely well. The Mayor stated that the Council would like to recognize Rino Ghetti, from the Community Center staff for recognizing the need for 9-1-1 to be activated and the crew from the Fountain Hills Rural/Metro Fire Department and Rural/Metro Ambulance: Captain/Paramedic Todd Brunin, Firefighter Scott Prentice, EMT Bill Stienke and Paramedic Mike Dowey. The Mayor asked those who were involved to come forward and thanked them for doing their jobs so well and contributing to the safety and well being of the Town's residents. (ii) Recognition of Senior Services Advisory Commissioner Bruce Florence for his contributions. Mayor Schlum asked Senior Services Advisory Commissioner Bruce Florence, Community Center Advisory Commissioners Leone Johnston and Sharon Morgan, McDowell Mountain Preservation Commissioners Lina Bellenir and Curt Cornum and Parks & Recreation Commissioner Paul Kolwaite to come forward at this time. The Mayor presented each person for a certificate in appreciation of their service to the community and thanked them for the time and effort that they have contributed in order to improve and enhanc e the quality of life for the Town and all of its residents. (iii) Recognition of Community Center Advisory Commissioners Leone Johnston and Sharon Morgan for their contributions. See Item ii above. (iv) Recognition of McDowell Mountain Preservation Commissioners Lina Bellenir and Curt Cornum for their contributions. See Item ii above. z:\council packets\2011\r1-20-11\110106m.docx Page 3 of 15 (v) Recognition of Parks & Recreation Commissioner Paul Kolwaite for his contributions. See Item ii above. CALL TO THE PUBLIC None. CONSENT AGENDA Mayor Schlum advised that Agenda Item #2 has been removed from the Consent Agenda at the request of Councilmember Hansen and placed on the Regular agenda. AGENDA ITEM #1 – CONSIDERATION OF APPROVING THE TOWN COUNCIL MEETING MINUTES FROM DECEMBER 14 AND 16, 2010. AGENDA ITEM #3 – CONSIDERATION OF A TEMPORARY USE PERMIT FOR SOFRITA RESTAURANT, LOCATED AT 16848 AVENUE OF THE FOUNTAINS, FOR REPEATING OUTDOOR ENTERTAINMENT EVENTS FOR 2011. CASE #TU2010-09. AGENDA ITEM #4 - CONSIDERATION OF A SPECIAL EVENT LIQUOR LICENSE APPLICATION SUBMITTED BY SHARON ELAINE MORGAN REPRESENTING THE FOUNTAIN HILLS CHAMBER OF COMMERCE LOCATED AT 16837 E. PALISADES BLVD., FOUNTAIN HILLS, AZ FOR THE PURPOSE OF AN ANNUAL AWARDS DINNER. EVENT TO BE HELD AT THE COMMUNITY CENTER, SCHEDULED TO BE HELD ON SATURDAY, JANUARY 22, 2011, FROM 5:00 P.M. TO 10:00 P.M. AGENDA ITEM #5 - CONSIDERATION OF APPROVING A LIQUOR LICENSE APPLICATION SUBMITTED BY JEFFREY SCOTT LESSIG, OWNER/AGENT OF BUCKEYE WEST, LLC DBA SUNRIDGE CANYON GOLF CLUB LOCATED AT 13100 N. SUNRIDGE DRIVE, FOUNTAIN HILLS, AZ. THIS IS FOR A SERIES 6 LICENSE (BAR LICENSE) REPLACING EXISTING LICENSE DUE TO OWNERSHIP CHANGE. Councilmember Hansen MOVED to approve the Consent Agenda as listed with Agenda Item #2 removed and Councilmember Dickey SECONDED the motion. A roll call vote was taken as follows: Councilmember Dickey Aye Mayor Schlum Aye Councilmember Leger Aye Councilmember Hansen Aye Councilmember Contino Aye Vice Mayor Brown Abstain (Was not present at the meetings) Councilmember Elkie Aye The motion CARRIED UNANIMOUSLY by those voting (6-0). z:\council packets\2011\r1-20-11\110106m.docx Page 4 of 15 REGULAR AGENDA AGENDA ITEM #2 – CONSIDERATION OF PURCHASING THREE (3) THERMAL IMAGING CAMERAS FROM FIRST IN, INC., IN THE AMOUNT OF $25,811.85. Assistant Fire Chief Randy Roberts stated that the Council approved accepting the grant in the amount of $28,000 and staff thought that with this money they would be able to purchase two very nice state of the art cameras but they were able to find a State contract in place with the City of Peoria and were able to purchase three cameras for $25,811.85. He noted that the grant will cover the entire cost of the cameras and no matching monies from the Town are required. The Council commended Chief Roberts and his department for their excellent work. Chief Roberts advised that the cameras will provide firefighters with the ability to see through smoke to find possible victims and will identify hot spots as well. Councilmember Hansen MOVED to approve the purchase of three thermal imaging cameras from First In, Inc., in the amount of $25,822.85 and Vice Mayor Brown SECONDED the motion, which CARRIED UNANIMOUSLY (7-0). AGENDA ITEM #6 - CONSIDERATION OF CALLING A SPECIAL ELECTION FOR THE PURPOSE OF SUBMITTING TO THE QUALIFIED ELECTORS OF THE TOWN OF FOUNTAIN HILLS REFERENDUM 2010-RF001-01 AND DIRECTING THE TOWN MANAGER, THE TOWN CLERK AND TOWN ATTORNEY TO PREPARE ALL MATERIALS AND TAKE ALL STEPS NECESSARY TO ENSURE COMPLIANCE WITH APPLICABLE LAW; AND APPROVING A BUDGET TRANSFER FOR APPROXIMATELY $55,150 FROM THE TOWN MANAGER'S CONTINGENCY FUND TO THE TOWN CLERK'S ELECTION BUDGET TO COVER ANTICIPATED ASSOCIATED ELECTION COSTS. Town Clerk Bev Bender advised that the Referendum petitions were filed in the Clerk's of fice on December 7th (regarding Ordinance 10-08, adopted by the Council on November 4th). She noted that the petitions were reviewed by the Town Clerk and the Maricopa County Recorder's Office as required by law and the signatures appeared to be adequate in number to have the issue placed on the ballot. She added that the next step is for the Council to determine when the election will be held. She said that the Town Code contains a provision that states, "A Special Election may be called no less than 90 days nor more than 150 days from the presentation of the Certificate of the Clerk" and stated that that puts it on the May 17, 2011 ballot. She added that the alternatives would be to place the issue on the ballot of the next regularly scheduled election s, which will be held on March 2012 or May of 2012. She informed the Council that notification requirements dictate that the Town let the County know 120 days prior to the date of the election that the Town will be holding an election, which puts the deadline to call a May 17th election at January 17th, 2011. She further stated that the next notification is the 105 days ballot language deadline. She noted that the same timeframe deadlines apply to the March 2012 election. She said that the election will cost approximately $55,000 and stated that if the Town decided to do an all mail ballot election the cost would be approximately $50,000. She added that if the issue was able to be placed on a consolidated election ballot (with a State issue) the costs would be reduced considerably (approximately $22,000 total cost) but in that instance the Town would not be able to conduct an all mail ballot election. Ms. Bender advised that a ballot box would be available in Town Hall and the ballots would be picked up by the County on a regular basis and the County Recorder's offices would serve as three early voting sites for those citizens wishing to vote early. She noted that the polling places would be open on Election Day from 6:00 a.m. until 7:00 p.m. She added that an all mail ballot election would require the placement of a ballot box at Town Hall for those voters who do not want to return the ballots by mail. She explained that since the money to cover z:\council packets\2011\r1-20-11\110106m.docx Page 5 of 15 the cost of the Special Election is not in the Town Clerk's budget at this time, the Council is being asked to approve a transfer from the Town Manager's Contingency Fund to cover this cost. Ms. Bender indicated her willingness to respond to questions from the Council. Mayor Schlum thanked Ms. Bender for her input. Ms. Bender informed the Mayor that five speaker request cards have been submitted. Dina Galassini addressed the Council and stated for the record that the petitions for the Referendum on Ordinance 10-08 regarding the single hauler trash issue specifically called for a General Election and not a Special Election as some people are being led to believe. She said that from her experience in gathering signatures, she has met some of the greatest residents -- both other gatherers and residents who signed the petition. She noted that the petition gatherers collected signatures on their own time and noted that a few are involved in the Tea Party movement and said everyone cares for their country and are all in this together. She added that the decision made by the Town's representatives regarding the single hauler trash contract should have involved the people and given them the right to vote. She said that the Council should have trusted in the ability of the Town's residents who are paying the bills to render the right decision on this important issue. She stated that the decision that was made has the ability to greatly impact residents and she has learned that it is all about the buck and whether they make money from Allied franchise fees or the lan dfill tipping fees, they are going to make the hauler pay something and ultimately it will cost the customers. She said that the citizens have a right to know the plans as far as the money and the Council's decision was forced upon them and she suspects that they have a hidden agenda. She added that whatever type of election the Council favors this evening, the result of the election will be what the people choose and not a wavering Town Council. Linda Bordow addressed the Council and said that she is speaking on behalf of herself and her husband. She advised that she googled Allied and Republic and "litigation" and was surprised at the amount of litigation associated with them. She stated that her main concern is that right now she does not believe that the Town should spend $50,000 on a Special Election and added that if the Town wanted to spend that kind of money, the Food Bank could use the help. She added that the goal was to have the citizens' voice s heard but not to spend $50,000 to do it and spoke in support of placing the item on the 2012 regularly scheduled election. Hugh Henry addressed the Council stated that he would not be in favor of a Special Election because he does not feel it is necessary. He said that if they want to spend money it should be on streets. He added that he believes in free enterprise and freedom of choice and advised that he and his neighbor caught 14 rats because they back up to the Preserve and it is a concern to him that they are talking about one pickup a week when they could just as well have two. He noted that there are some people who do not take out their garbage even every other week (single people in homes) and added that there are really three different markets -- for twice a week, once a week and every other week and he believes that is the way they should look at this problem. He said that one solution does not necessary fit all. Jeff Cohen addressed the Council and expressed the opinion that the paper has done much towards dividin g the Town in the name of selling papers. He said that he and the group that was formed to fight the Council's decision and do a referendum did so to exercise their Constitutional right. He pointed out that the Referendum got double the amount of signatures required in less than half the allowed time and it specifically stated, "At the next General Election." He said that he and his group feel that the Council forced a tax on the people by forcing them to use one supplier regardless of the cost because costs go up and they have taken away the citizens' right of choice and that is basically a tax. He added that if the Council feels that that is what they want to do, they should just tax the people but noted that that too would have to go to a vote of the people. He requested that the Council allow this issue to be placed on the ballot of the next General Election instead of spending $50,000 of the Town's money. z:\council packets\2011\r1-20-11\110106m.docx Page 6 of 15 Robert Tripp addressed the Council and expressed the opinion that the Council has done a fantastic job over the last few years during the difficult economic times they have had to face. He said that the Town came forward and said they wanted recycling and dozens upon dozens of meetings and discussions have taken place on this issue -- it is not something that has been taken lightly. He added that he does not believe that $50,000 is all that much money and the proposal will actually save the Town and residents money (he will save approximately $200 a year). He said he would like to see this thing over with and supports moving ahead as quickly as possible. Mayor Schlum thanked all of the speakers for their input. Town Attorney Andrew McGuire indicated his intention to respond to some of the questions/comments that have been raised regarding this issue. He stated that as far as the Referendum petitions calling for a General Election, he is not aware of any case law statutory/Constitutional provisions that would allow a referendum petition to change the Town Code provisions or the State's statutory provision on how an election will be called. He said that while he understands the position being taken, he does not believe it has any legal foundation. He added that there have been repeated comments made saying that this item should have gone to a vote of the people prior to the Council rendering a decision on the issue and under State law there is only one type of question that would go to an advisory election and that is a transportation question -- all other advisory elections are not permitted by State law so the Council could not have put the item before the people prior to making their decision. He added that the contract is revenue neutral -- the Town does not receive any money and does not pay anything out other than for its own services. He stated that the options include two pickups a week along with recycling or one pickup a week and recycling. Mr. McGuire confirmed for the Mayor that the Council's choice this evening is to select either a May 17th Special Election or place the issue on the ballot of the March 2012 regularly scheduled election. Councilmember Dickey MOVED to place Referendum 2010-RF001-01 on the ballot of a May 17, 2011 Special Election directing the Town Manager, Town Attorney and Town Clerk to prepare all materials and tak e all necessary steps to ensure compliance with applicable laws and to approve a budget transfer of $55,150 from the Town Manager's contingency fund account to the Town Clerk's Election budget to cover anticipated associated election costs and Vice Mayor Brown SECONDED the motion. Councilmember Hansen said in the packet where it referred to possibly having the election at the next regularly scheduled Primary Election it also indicated that there would have to be a budget transfer from the Town Manager's contingency fund and she is wondering why they would need that transfer for a year out instead of putting it in the budget. Ms. Bender concurred and said that she would include that amount in the budget for next year. Councilmember Hansen clarified that if this item was placed on the General Election ballot in May of 2012 there is a possibility that there may not be a "regularly scheduled election in May of 2012." She explained that there will be a Mayor/Council election in March of 2012 but if all the candidates are elected outright, there would not be a need for a May election. She added that in that case, it would wind up costing more because it would force a second election. She said if they decided to have an election in 2012, March would be the preferable date because that election will definitely be held. Councilmember Elkie discussed the costs that would be incurred if the election was held in March of 2012 and said that it would cost approximately $14,000 to add this item to that ballot. Ms. Bender concurred and stated that the amount would include the cost of a publicity pamphlet that they would have to create, the election notification publications and all of the translations. z:\council packets\2011\r1-20-11\110106m.docx Page 7 of 15 Councilmember Dickey asked if it would be possible, if they held t he election in 2011, to do all mail ballots, which would save approximately $5,000. Ms. Bender replied that she believes they would have sufficient time to do that. Mr. McGuire stated that he believes that they would be within the timeframe that would allow them to do that but noted that they would need a Code amendment and it would take 30 days before that became effective (but they could do it). He reported that the "drop dead date" for the mail in ballots will be prior to the time they need to start issuing notices so there would be enough time but it would be fairly close. He added that if that were the direction of the Council, staff would have to be back before the Council at their next meeting. He said that the ordinance will have to be drafted in a flexible format to allow the Council to choose between having an all mail ballot election and one where polling places are used. He stated that they have been alerted that there might be a State wide measure in May but they will not be able to confirm that until March. He advised that if that is the case, the Town cannot have a mail in ballot election. He confirmed that the costs would be cut in half if the State puts a measure on the ballot at the same time. In response to a question from the Mayor regarding potentially moving the election to 2012, the action passing and what would happen to the two plus years they have put into this issue, Mr. McGuire responded that if the Council's decision was upheld at a 2012 election, the process for having a single hauler trash collection would be upheld but the current signed contract would not be around anymore. He said that staff has talked to Allied about this possibility of them holding their contract until that time but the company has advised that the y could not hold the price for that long so staff would recommend terminating the contract by convenience , walk away from that and wait until they find out what the voters have to say. He added that they could then utilize the same RFP process they did this time around and solicit new bids in the summer of 2012. Councilmember Elkie asked if that were the case and they were accepting bids, would they then have to have an additional forum to allow citizens the opportunity to express their views. Mr. McGuire advised that they would have the same discussion with regard to the contract but the discussion regarding the process and the regulations would be done and there would only be the administrative process of issuing the RFP, reviewing the submissions and then bringing a recommendation before the Council. Mayor Schlum commented that if the election were to be held in May, they could utilize what they already have in place and not have to go through the entire process again. He added that if they wait till next year, 13 months from now, they would have to go through the process again as far as getting bids and they would have discussions during their open meetings where citizens could make comments but they would only be doing so if the election affirmed the Council's decision. Councilmember Dickey stated that if they put it off they are jeopardizing the current cost lock-in ($11.44) and half of the three year prize freeze would be gone by the time they did it. She said that a friend of hers who lives in the northwest part of Town just got her quarterly bill and it was $75.00 for one pickup and one recycle so the more they delay the less savings there will be to the residents. She added that her friend would save $165.00 a year and that weighs on her, that they would have to start again as well as the unlikely chance of getting that good a price. She said that she is reluctant to lose what they have in place. Councilmember Elkie asked if her friend was paying $75 a month and she clarified that she is paying $75 a quarter. Councilmember Hansen asked everyone to keep in mind that some people will be paying more with the current contract (if they live in an Association or condominium and have gotten a good deal for themselves right now). She said not everyone will be paying less and as far as going through the process again, none of them have a crystal ball and it is possible that they could even do better depending upon the economy and the competition. z:\council packets\2011\r1-20-11\110106m.docx Page 8 of 15 Councilmember Elkie stated that they have heard from some speakers, including Rubbish Solutions, who made rumblings about the RFP process and the fact that Council took their vote at 12:30 in the morning. He said that allowing people to be heard again on this issue may prove to be valuable. Councilmember Leger commented on the significant amount of discussion that has taken place regarding this issue, many of them were repetitious, but said he appreciates the feedback and the fact that people are passionate about this and have come forward. He stated that it is his understanding as far as Rubbish Solutions that they did have some issues and asked the Town Attorney if the issues were addressed at the beginning of this process. Mr. McGuire replied that staff had discussions with them informally about how their concerns were going to be addressed within the bidding process and they had four bidders who submitted under the RFP as it was issued and staff was awaiting a bid to be able to address that with them, but they never received a bid. He noted that they did not participate in the process. He added that staff does not believe that there is a flaw in the bidding process and is willing to stand behind that process. Councilmember Leger stated that this has been a long, long discussion and spirited debate and the longer it drags along the longer they remain in limbo as a community. He said that this issue has divided the community and he believes it is in the best interest of the community to bring this issue to a vote as soon as possible, putting the issue to rest and moving on. He added that the current referendum gives them an opportunity to call an election and requires them to do so and he believes it is prudent to do so as soon as possible -- May 17, 2011. He said that he is hopeful that a vote of the people in May of 2011 will bring this issue to closure and he believes it is the right thing to do for everyone involved. He stated that the Town faces many issues and it is time to move forward on this one. Councilmember Hansen said that with the possibility that they "could make a better mousetrap in 2012”, she would MOVE to amend the motion to change the election date to the regularly scheduled Primary Election in March of 2012 and Councilmember Elkie SECONDED the motion. The Mayor asked for a vote on the amendment to the motion. A roll call vote was taken with the following results: Councilmember Hansen Aye Councilmember Dickey Nay Councilmember Contino Aye Vice Mayor Brown Nay Councilmember Elkie Aye Councilmember Leger Nay Mayor Schlum Nay The motion FAILED by majority vote (3-4). Mayor Schlum asked for a vote on the main motion (May 17, 2011 Special Election). The motion CARRIED by majority vote (4-3) with Councilmembers Contino, Hansen and Elkie voting nay. AGENDA ITEM #7 - CONSIDERATION WITH POSSIBLE DIRECTION TO STAFF WITH REGARD TO PURSUING AN AGREEMENT WITH THE CITY OF SCOTTSDALE TO ALLOW CONNECTING TRAILS BETWEEN SCOTTSDALE'S MCDOWELL SONORAN PRESERVE WITH THE FOUNTAIN HILLS MCDOWELL MOUNTAIN PRESERVE. z:\council packets\2011\r1-20-11\110106m.docx Page 9 of 15 Community Services Director Mark Mayer addressed the Council relative to this agenda item. He said that the amenity located to the west continues to grow in popularity. He advised that the Town of Fountain Hills Mountain Preservation Commission has been continuing discussions with Scottsdale's Sonoran Preserve Commission on the possible connection between their trail and the Town's and stated that there would be benefits to both communities. Mr. Mayer added that one item that the Commissioners are at odds with is the use of horses on the trails. Both the City of Scottsdale and Maricopa County allow horses on selected trai ls in their preserve/park, however the Town does not. He said that there are a number of reasons horses are not allowed, including but not limited to the fact that trails were not designed/built to accommodate horses (narrow), the increased maintenance that would be required and the lack of horse staging areas and/or trailer parking currently in place or proposed. Mr. Mayer informed the Council that at their December 7, 2010 meeting, the McDowell Mountain Preservation Commission debated the trail connectivity and horse privileges. He noted that ultimately the Commission voted to recommend to the Town Council to pursue an agreement with the City of Scottsdale to allow connecting trails between Scottsdale's McDowell Sonoran Preservation Commission and the Fountain Hills McDowell Mountain Preservation Commission (MMPC), exclusive of horse privileges, and two separate alignments are being looked at. He added that staff supports the Commission's recommendation. Mr. Mayer indicated his willingness to respond to questions from the Council. Mayor Schlum thanked Mr. Mayer for his presentation at the members of the MMPC and Scottsdale's Sonoran Preserve Commission for their ongoing efforts. Ms. Bender advised that one speaker wished to address the Council relative to this agenda item. Norman Thorpe addressed the Council and said that he is a seasonal resident and was thrilled to hear that this item was coming before the Council. He stated that the connection of the trails is an important issue and one that will result in numerous benefits to both communities. He added that this would benefit hikers on the Fountain Hills side and noted that the much larger trail system on the Scottsdale side is a very well used trail system and with the connectivity in place many of those hikers will come over to this side or go to the Park. He said some of those people will certainly stop in Fountain Hills and shop at the various businesses and eat at the restaurants. He urged the Council to approve this item. Councilmember Leger noted that it appears that none of the trails are capable of managing horse traffic and stated that he has been reading that the Scottsdale people are interested in being able to have their horseback riders access the Town's trails. He asked if they maintain where they are at on t his issue whether or not it will constitute a "deal breaker." Mr. Mayer replied that it seems that Scottsdale has more to gain than to lose from this proposal and noted that their trails are more heavily used than the Town's and the access will potentially benefit them more than the Town but there are some obvious benefits for them as well. He added that there was a feeling among himself and the Commission that they were giving away too much and compromising their system too much, which would potentially burden the Town with additional costs/repairs. He advised that Scottsdale will need some additional signage on their end. Councilmember Dickey MOVED to pursue an agreement with the City of Scottsdale for trail connection between the two Preserves and Councilmember Hansen SECONDED the motion, which CARRIED UNANIMOUSLY (7-0). AGENDA ITEM #8 - CONSIDERATION OF RESOLUTION 2011-03, DECLARING AS A PUBLIC RECORD THAT CERTAIN DOCUMENT FILED WITH THE TOWN CLERK AND ENTITLED THE z:\council packets\2011\r1-20-11\110106m.docx Page 10 of 15 TOWN OF FOUNTAIN HILLS ZONING ORDINANCE CHAPTER 24 - MEDICAL MARIJUANA REGULATIONS. Mayor Schlum advised that there would be only one report on Agenda Items 8, 9 and 10. Senior Planner Bob Rodgers addressed the Council and stated that Proposition 203, the Arizona Medical Marijuana Act, appeared on the November 2, 2010 Statewide ballot and, as approved by the voters, provides for medical marijuana use, sale and cultivation, including the establishment of medical marijuana dispensaries in the State. He said that evaluation of several California cities' experiences with medical marijuana dispensaries and the opinion of the California Police Chiefs’ Association have indicated negative secondary neighborhood effects associated with the operation of medical marijuana dispensaries, including: Il legal drug sales at a price less than dispensary prices to dispensary patrons; Marijuana use in and around dispensaries; Non-residents being attracted to the community to secure marijuana; DUI arrests related to marijuana purchased at dispensaries; Burglar ies at dispensaries; Drug dealers posing as medical marijuana users to purchase and resell marijuana legally; Robbery of medical marijuana; Thefts in and around dispensaries to support legal and illegal drug commerce; Negative effects on surrounding businesses resulting from a concentration of criminals associated with the dispensary and Illegal sale of drugs other than marijuana in dispensaries. (A complete copy of the report is on file in the office of the Town Clerk.) Mr. Rodgers explained that dispensaries, by virtue of their operation, may be the repositories of large amounts of cash and marijuana and consequently some operators have been attacked at their dispensaries and at home. He said that such locations are also regularly burglarized and other negative effects that have been identified include the sale of drugs to minors, loitering, heavy vehicular traffic, increased noise and robbery of dispensary customers. Mr. Rodgers further stated that Proposition 203 permits the Town to enact zoning regul ations in order to conserve and promote the public health, safety and general welfare and to regulate this use in order to protect the public's health by establishing appropriate regulation of medical marijuana dispensaries and cultivation facilities. Mr. Rodgers outlined the proposed "Chapter 24 - Medical Marijuana" ordinance amendment and said that it will provide the following: 1. Marijuana dispensaries or medical offsite cultivation locations will be permitted only within the C -2 zoning district. 2. Medical marijuana locations must meet the minimum separation requirements, measured in a straight line to the closest property line of any parcel containing the uses listed below: a. 2,000 feet from any other medical marijuana dispensary or medical marijuana dispensary offsite cultivation location. b. 2,000 feet from a residential substance abuse diagnostic and treatment facility or other residential drug or alcohol rehabilitation facility. c. 2,000 feet from a public, private, parochial, charter, dramatic, dancing or music school, a learning center or other similar school or educational facility that caters to children. d. 2,000 feet from a childcare center. e. 1,000 feet from a public library or public park. f. 500 feet from a church. 3. The ordinance prohibits cultivation locations that are not specifically associated with a dispensary. 4. The ordinance places specific maximum size limitations on dispensaries as well as cultivation. z:\council packets\2011\r1-20-11\110106m.docx Page 11 of 15 5. The ordinance outlines the specific requirements any marijuana dispensary or cultivation area must adhere to in order to be granted an initial permit to operate as well as to continue operation. 6. Dispensaries shall have operating hours not earlier than 9:00 a.m. and not later than 5:00 p.m. 7. Security guards must be provided at all times. 8. Proper lighting must be maintained. 9. Patients who are minors must be accompanied by a parent or legal guardian. 10. There can be no on-site doctor to issue recommendations for medical marijuana. 11. There can be no on-site sales of alcohol or tobacco and no on-site consumption of food, alcohol, tobacco or marijuana. Mr. Rodgers added that the amendment outlines the penalties for violations of the ordinance. He stated that approval of the proposed ordinance amendment will allow the Town to regulate the location, design, size and hours of operation of any medical marijuana facility that is proposed within the Town. He noted that denial of the proposed ordinance amendment will allow such uses to locate and operate under any applicable State or County guidelines that may be adopted. Mr. Rodgers informed the Council that the Planning & Zoning Commission voted at their December 9, 2010 meeting to forward a recommendation to approve the proposed new Chapter 24 - Medical Marijuana zoning ordinance text amendment. He added that staff recommends that the Council vote to approve the zoning ordinance text amendment as presented. Mr. Rodgers indicated his willingness to respond to questions from the Council. Mayor Schlum thanked Mr. Rodgers for his presentation. The Mayor stated that he would allow citizens who submitted request to speak cards on this agenda item to present their remarks at this time. Mr. Doug Hebert addressed the Council and said he spent 26 years with the Government Drug Enforcement agency and since that time he has been involved in different coalitions, boards and committees (one in opposition to Proposition 203). He provided background information on the Proposition itself and thanked the Town Council for the effort that has gone into the zoning regarding this issue and said that in California the dispensary issue really got out of hand and resulted in a variety of crimes and misuse . He stated that the Town, taking a proactive stance on this issue, will avoid many of the problems that California faced. He commended the Council and staff on their proactive stance and indicated support for the proposal before them this evening. Carole Groux addressed the Council and stated that she is the Director of the Fountain Hills Youth Substance Prevention Coalition. She also commended everyone who has worked on this issue for being proactive and partnering with the coalition to come up with a very responsible zoning ordinance. She stated the opinion that they will be able to work together as a team to keep the Town's youths safe and drug free. Maria Perreault addressed the Council and said that under the Youth Substance Prevention Coalition of Fountain Hills and as Coordinator of the Safe Homes Network, their goal is to protect their children from the harmful and often deadly results of alcohol and drugs. She asked parents to join them in this effort by not allowing illegal drugs or alcohol to be consumer by anyone under the age of 21. She reported that they currently have 113 participants and their goal is to reach 600 by the end of this year. She said that as an involved parent she was z:\council packets\2011\r1-20-11\110106m.docx Page 12 of 15 shocked to hear the extent of illegal marijuana use in the Town's high schools (up to 10% higher than the State average). She noted that 23% of this year's juniors report using marijuana on a regular basis. She stated that statistics prove that marijuana usage is directly connected to academic failure. Ms. Perreault provided additional statistics regarding this issue, spoke in opposition to the placement of a dispensary in Town and spoke in favor of the proposed proactive steps currently before the Council. Mr. David Pattino addressed the Council and said that his current employment/activities allow him to see three sides of this issue. He stated the opinion that a dispensary in Town would not be good for the community and commented on the abuse by students that he witnesses as well as seniors who need a lot of medication to maintain their independence and health, and he sees drug addicts and people committing drug-related crimes. He showed the Council an empty medical marijuana cake container that was given to him in Arizona (came from California). He noted that the warning on the cake container says, "For Medical Use Only" and says it should be kept away from children but he was able to obtain it without any problem and he could easily get more. He said that the cake was destroyed but it goes to show h ow easy this would be because anyone using medical marijuana could sell or give away their surplus. He stated that they are opening a can of worms that will be very hard to control and Fountain Hills is not the place to have a dispensary. Rich Schultz addressed the Council and said that he was speaking on behalf of himself and his wife. He stated support for the proposed ordinance and added that over the last six weeks they have seen another epidemic of kids obtaining another abuse called spice. He advised that he was born and raised in California but the state has changed and in part that is the result of the approval of the proposition that was passed there. He thanked the Council for their pro-activeness in regulating this process. He provided copies of an ordinance that he said many towns across America have adopted legalizing medical marijuana in smoke shops and suggested that if the ordinance is adopted that the Council start looking into smoke shops and prohibiting smoking paraphernalia and products. He reported that the Town currently has a shop that sells spice. Nancy Ordowski addressed the Council and thanked them for regulating the zoning for the dispensaries in the responsible fashion that they have but said she wished it did not have to happen in Town. She stated that she works with the youth groups in her church and is very concerned about what this could lead into. She added that if they have to put up with having a dispensary in Town the zoning has to be stronger than any other zoning in place in order to protect the youths and the entire community. She noted that two ounces of marijuana will make 150 joints and participants will be able to obtain this amount every two weeks. She added that a lot of extra marijuana will be available from those who do not need to use that amount and this is of major concern to her. She stressed the importance of protecting the community and finding any way they can to deny the location of a dispensary in Fountain Hills. Jeff Cohen addressed the Council and expressed concerns regarding the establishment of a medical marijuana facility in Town. He said that no good can come from this except for the people who may need it and if they need it that bad they can drive to Scottsdale. He urged the Council to do everything in their power to totally remove this from the Town and protect the community. Nancy Puffer addressed the Council and said that she believes this whole thing is a bad idea. She commented on the various conditions she suffers from and surgeries that she has undergone and added that although she is in pain, she has a doctor who knows how her body will react to certain pain medications. She noted that for every action there is a reaction and different people will react in different ways to medical marijuana. She commented that she would not zone anything to accommodate any of this and expressed concerns about the long-range negative impacts of this proposal, particularly on the youths of the community. Linda Bordow addressed the Council and expressed the opinion that the Council and staff has done a good job in putting the ordinance together. She said that she supports the proposed ordinance and added that the Town cannot legally put zoning in place that will eliminate the possibility of having a medical marijuana dispensary in the community. She stated that she has had family members with serious medical conditions use medical z:\council packets\2011\r1-20-11\110106m.docx Page 13 of 15 marijuana for pain relief and said that it did make a difference. She added that she also agrees that the last thing they want is to have the Town's youths involved in this. She further stated that the State is going to issue 124 licenses for this and if they do select someone who wants to set up a site in Fountain Hills, she would hope that it would be someone who would be philanthropic -- this is a non-profit set up and there will be money generated. She said that the excess funds should be used to set up programs to support the Town's youths, even a Teen Center, to get them away from that type of thing and provide education so that they are aware of the dangers of drug use. She stated that since this is going to happen, if a dispensary is set up in Town she would like to see some benefit come out of it for the youths. She questioned whether the Council has the a uthority to add a provision related to that (use of funds generated to go towards such programs) and reiterated that the last thing she wants to see is any type of abuse in this area but added that there are people who will benefit a great deal from being able to access medical marijuana for pain relief. She thanked the Council for putting the restrictions on the ordinance that is being proposed and protecting the Town. Mayor Schlum thanked all of the speakers for their comments. Councilmember Hansen suggested that the Council get a housekeeping item out of the way - Resolution 2011- 03, declaring the document a public record and the Mayor agreed. Councilmember Hansen MOVED to declare as a public record that certain document filed with the Town Council and entitled the Town of Fountain Hills Zoning Ordinance Chapter 24 - Medical Marijuana Regulations (Resolution 2011-03) and Councilmember Elkie SECONDED the motion. Mayor Schlum requested that Mr. McGuire speak to the State law and explain why the Town is allowing this at all in order to respond to some of the comments heard this evening. Mr. McGuire explained that Proposition 203 has very limited local control provisions placed in it and one of them was the availability for municipalities to have reasonable zoning regulations with respect to medical marijuana dispensaries, cultivation facilities, etc. He noted that the debate among attorneys has been gone on since September and some communities were proactive and adopted regulations as far back as then, before the vote was even taken. He reported that none of the attorneys involved could find a way to implement a complete ban and the Town can safely say that they have gone as far as any community can in terms of this ordinance and they are proposing to put into place the most stringent zoning regulations they can come up with. He also discussed another state in which communities are currently involved in lawsuits with the ACLU over this type of provision. He stated that they would like to see the outcome of that case to see whether it will trickle over to them as well. He discussed separation regulations and said that they will have no more than one of each. He added that there is limited availability in that area and discussed the gap in time (the time the licensing will happen for caregivers and qualified patients and the dispensaries). He noted that staff believes they needed to put into place provisions to make sure that the Town has something in place prior to any licensing happening so that anyone who is more than 25 miles away from a dispensary that hasn't been licensed yet so it can't exist yet will understand that they still have to be in a C-3 category. Staff felt it important to put that into place prior to the licensing taking place in early April. The Mayor thanked Mr. McGuire for his input and called for a vote on the motion. The motion CARRIED UNANIMOUSLY (7-0). AGENDA ITEM #9 - PUBLIC HEARING TO RECIVE COMMENTS ON ORDINANCE 11-04, A PROPOSED TEXT AMENDMENT TO THE TOWN OF FOUNTAIN HILLS ZONING ORDINANCE, ADOPTING CHAPTER 24, MEDICAL MARIJUANA USES. Mayor Schlum declared the public hearing open at 8:00 p.m. and there being no additional speakers he closed the public hearing at 8:00 p.m. (For discussion and comments from speakers see Agenda Item #8 above.) z:\council packets\2011\r1-20-11\110106m.docx Page 14 of 15 AGENDA ITEM #10 - CONSIDERATION OF ORDINANCE 11-04, A PROPOSED TEXT AMENDMENT TO THE TOWN OF FOUNTAIN HILLS ZONING ORDINANCE, ADOPTING CHAPTER 24, MEDICAL MARIJUANA USES. Councilmember Hansen MOVED to approve Ordinance 11-04, a proposed text amendment to the Town of Fountain Hills Ordinance, adopting Chapter 24, Medical Marijuana uses. Councilmember Dickey said she wanted to review the timeline so that people will know that there will be other opportunities for public comment besides what they do locally. She noted that one deadline is actually tomorrow -- the public comment to DHS, the regulating agency. She stated that they are going to issue revised regulations on January 31st and then people can make public comments again until February 18th. She added that it goes into effect on April 13th and dispensaries most likely will not be in operation until August or September. She noted that an outright ban would not comply with what c ould be called reasonable but the current proposal is really narrow. She said that people still have an opportunity to go to DHS to see how they write the rules and regulations if there is something they want on that level because the Town obviously has t o comply with what they come up with. Mr. McGuire commented that for instance the comment related to use of funds, minimum contributions to community efforts, those are the types of things that DHS would be more likely to be able to implement if anything at all. He said that that certainly falls outside of the Town's authority but they are non -profit facilities so it is worthwhile to present comments at the rule making level. Councilmember Hansen stated that she read that Phoenix is going to require a use permit and charge $1,300 for it. Mr. McGuire advised that there are two issues there that staff tried to shy away from a little bit. He said that some communities are using the use permit to hold a public hearing and provide an opportunity for locati onal discussions prior to implementation of ordinances. He added that staff did not feel it made sense for the Council to hold a public hearing for which there was no outcome other than that the dispensary was going to go in the selected location. He stated that the licensing issue is interesting because under State statute they are prohibited from having a license be more than $5,000 but Phoenix has stepped out there with a use permit fee because of the flexibility surrounding where they are allowing them. He noted that their categories are much broader than the Town's and other municipalities (one of the most flexible communities). He said he believes this is to have the staff resources to evaluate the numerous locations -- to offset those costs. He added that the Town will not have much of a cost issue. In response to a question from Councilmember Dickey, Mr. McGuire replied that multiple communities have raised the issue of taxation and there are two different discussions -- at the DHS level he has been told but he has not heard directly from anyone at the State Department of Revenue directly that they are interpreting the State tax authority as it already exists for transactions at these facilities. He added that he has not confirmed that and it seems a little odd. He stated that he has been told by the Tax Commission that one of the earliest things they are going to try and have introduced at the Legislature is to have a model city tax amendment in place so that municipalities have local tax authority in place sometime during this calendar year to be able to tax the transactions as well. Councilmember Dickey SECONDED the motion. There being no further discussion, the Mayor called for the vote. The motion CARRIED UNANIMOUSLY (7-0). Mayor Schlum thanked everyone for their input and comments. He also commended staff on their efforts. z:\council packets\2011\r1-20-11\110106m.docx Page 15 of 15 AGENDA ITEM #11 – 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) directing staff to conduct further research and report back to the Council. A. NONE AGENDA ITEM #12 – SUMMARY OF COUNCIL REQUESTS AND REPORT ON RECENT ACTIVITIES BY THE TOWN MANAGER. Mr. Davis will follow up on the all mail ballot issue as well as the smoke shop ordinance. AGENDA ITEM #13 - ADJOURNMENT Councilmember Contino MOVED to adjourn the meeting and Councilmember Dickey SECONDED the motion, which CARRIED UNANIMOUSLY (7-0). The meeting adjourned at 8:05 p.m. TOWN OF FOUNTAIN HILLS By __________________________ Jay T. Schlum, Mayor ATTEST AND PREPARED BY: _________________________ Bevelyn J. Bender, Town Clerk CERTIFICATION I hereby certify that the foregoing minutes are a true and correct copy of the minutes of the Executive and Regular Session held by the Town Council of Fountain Hills at Town Hall on the 6th day of January 2011. I further certify that the meeting was duly called and that a quorum was present. DATED this 20th day of January 2011. _____________________________ Bevelyn J. Bender, Town Clerk